Preview
MON-L-001522-22 08/11/2022 1:34:01 PM Pg 1 of 5 Trans ID: LCV20222916887
August 11, 2022
Via e-Courts
Honorable Owen C. McCarthy
Monmouth County Courthouse
71 Monument Park, 2nd Floor
Freehold, NJ 07728
Re: Fortune Funding and Mark Jones v. Nassau Marina Holdings, LLC
and Louis Mercatanti
Docket No. MON-L-001522-22
Dear Judge McCarthy:
Please accept this reply on behalf of defendants, Nassau Marina Holdings LLC and Louis
Mercatanti (the “Nassau defendants”) to the supplemental brief filed by plaintiffs, Fortune Funding
Concierge, Inc. and Mark Jones (“FF/Jones”) in opposition to the Nassau defendants’ Motion to
Dismiss.
At the conclusion of oral argument, plaintiffs’ counsel raised the applicability of a consent order
entered in the previous action which set forth deadlines for the parties to file amendments to
pleadings. Your Honor asked to review the consent order, which plaintiff submitted along with
plaintiffs’ supplemental brief. The consent order setting forth filing deadlines has no bearing on
this motion to dismiss for the reasons set forth herein.
I. The previous matter resulted in a dismissal with prejudice, was
adjudicated on the merits and carries preclusive effect.
Plaintiffs are mistaken as to the meaning of ‘adjudicated’ by arguing that the federal case was not
adjudicated. When the previous lawsuit was dismissed with prejudice against the Nassau
defendants and FF/Jones on February 1, 2022 and April 15, 2022, respectively, the entire lawsuit
was fully adjudicated on the merits. A dismissal that is specifically rendered with prejudice
qualifies as an adjudication on the merits and thus carries preclusive effect. (emphasis
supplied) Negron v. Donna, 2010 WL 1050163, United States District Court, D. New Jersey.
Unheard motions do not survive the dismissal of a case, and when the plaintiffs enter voluntarily
into a settlement with prejudice, there is no room for the plaintiffs to complain of an inequity.
The parties settled the federal case based on the definitive certainty of a full and final resolution
by agreeing to a dismissal with prejudice. A dismissal with prejudice has to have meaning. The
words are not superfluous. A dismissal with prejudice “acts as an adjudication on the merits, and
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prohibits filing of a complaint asserting the very same cause of action.” Feinsod v. Noon, 261 N.J.
Super. 82, 617 A.2d 1234 (App. Div. 1992).
FF/Jones frames its argument as; “the basic argument made by FF/Jones is that it timely filed a
Motion to Amend its pleadings. When the Motion to Amend was pending decision, Taub and
FF/Jones settled the federal suit and were dismissed from the federal suit.” See plaintiffs’
Supplemental Brief, p. 2.
By settling the case with prejudice, the parties adjudicated the case and any motions that were
pending were also considered closed. Pending motions do not survive the settlement and dismissal
of a lawsuit. If FF/Jones desired to retain any of their potential causes of action against the Nassau
defendants, they could have and should have preserved and carved-out those causes of action as
part of their settlement and dismissal order in the federal case, or they should not have settled the
case. Since they did not do that and instead consented to a dismissal with prejudice, they are barred
from relitigating the claim. This Court has no jurisdiction to unwind the settlement and vacate the
Federal Court’s Order to allow plaintiffs to proceed.
Alternatively, FF/Jones could have filed an appeal to the 3rd Circuit if they disagreed with the
decision of the District Court to honor the consent order dismissing the case with prejudice, and
ask the 3rd Circuit to permit FF/Jones to vacate the dismissal with prejudice to re-open claims.
They did not do that either.
Instead, plaintiffs are before the Law Division requesting, in essence, that this Court vacate another
court’s order and allow it to litigate an already adjudicated lawsuit. Plaintiffs have provided no
support for this extraordinary form of relief. Plaintiffs consented to be in the very position in which
they find themselves, and are barred from seeking re-adjudication here.
II. The “Entire Controversy Doctrine” bars a subsequent action when the
prior action has been tried to judgment or settled. The prior action was
settled and thus, is barred.
The entire controversy doctrine bars a subsequent action when the prior action, based on the same
transactional facts, has been settled. Arena v. Borough of Jamesburg, Middlesex County, 309 N.J.
Super. 106 (1998). Both plaintiffs and defendants agree that this action arises out of the same
transactional facts:
• Plaintiffs’ complaint, ¶ 1 alleges, “This lawsuit arises out of a recently settled federal
diversity lawsuit captioned Bruce F. Taub, P.A. v. Louis Mercatanti and Nassau Marina
Holdings LLC, et als.”
• Plaintiffs’ Brief p. 2, states, “Because the claims set forth in the state Complaint are the
same as the claims set forth in the now dismissed proposed federal Third-Party
Complaint…”
• The Nassau defendants’ moving papers also allege this matter involves the same
agreement, the same parties and the same transaction as the federal case.
Both parties settled their cases in the previous lawsuit and were dismissed with prejudice. See
Nassau defendants’ consent order and FF/Jones’ consent order, attached hereto as Exhibit A and
Exhibit B, respectively. The entire controversy doctrine was designed for this exact situation.
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The entire controversy rule was designed to overcome the situation where a
litigant who tries a gambit in order to have “two shots at the apple.” In this
situation, the litigant makes a tactical decision not to sue a party who should
be joined or omits a claim, i.e., splits a cause of action. This might be done
to eliminate a party who might vigorously defend or simply to have two
attempts at recovery.
1B NJPRACT R4:30A
Plaintiffs are seeking a second attempt at recovery, another shot at the apple, and for all of
the reasons set forth herein, it must be denied and their complaint dismissed.
III. The “exceptions” to the entire controversy action are not applicable.
Plaintiff argues that this case fits into an “exception” to the entire controversy doctrine, because a
motion in the prior case was not adjudicated. As set forth above, the prior case was, according to
the case law cited, fully adjudicated on the merits. Negron v. Donna, Id.
a. With prejudice vs. without prejudice
Plaintiffs’ reliance on Arena v. Borough of Jamesburg, Middlesex County, supra, is misplaced
because, as set forth previously, plaintiffs misunderstand the distinction between a case that is
voluntarily dismissed without prejudice (Arena) and a case that is fully adjudicated by virtue of a
settlement with prejudice (here). In Arena, the plaintiff voluntarily exercised its right to dismiss its
case without prejudice prior to the filing of an answer by the defendant. That was a significant
reason for the court’s ruling. Here, the federal case was adjudicated over an entire year with 73
docket entries, when FF/Jones voluntarily dismissed its case with prejudice and settled with
plaintiff Taub.
b. Unknown or unarisen claims
Likewise, the other cases cited by plaintiffs are distinguishable. In State, Dept. of Environmental
Protection v. Standard Tank Cleaning Corp., 284 N.J. Super. 381, 665 A.2d 753 (App. Div. 1995),
a case plaintiffs rely on, the plaintiff DEP did not become aware of any additional violations which
would provide the basis of an amended complaint naming additional parties until after the first
phase of the trial with the original defendant was almost over. Moreover, they sought to amend to
name additional claims and parties in the original court, not before a separate court. They were
permitted to name additional parties but the plaintiff could only proceed against the additional
parties with respect to violations that had not yet been adjudicated.
The entire controversy doctrine does not apply to bar component claims that are unknown, unarisen
or unaccrued at the time of the original action. Mystic Isle Development Corp. v. Perskie &
Nehmad, 142 N.J. 310 (1995). In contrast, FF/Jones’ are NOT seeking to amend a complaint but
to bring an independent action. FF/Jones’ claim had fully accrued, they knew all facts and they
could have named the Nassau defendants in Taub’s case. Instead, they chose to omit potential
claims against the Nassau defendants, including them only as an affirmative defense, before
consenting to dismissing with prejudice.
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State, Dept. of Environmental Protection, Id. set forth the three purposes of the entire controversy
doctrine to be (1) the need for complete and final disposition through the avoidance of piecemeal
decisions; (2) fairness to parties to the action and those with a material interest in the action; and
(3) efficiency and the avoidance of waste and the reduction of delay. At 399.
In State, Dept. of Environmental Protection, supra, the Appellate Division held that if the plaintiff
had been allowed to proceed against the added parties for violations that had been previously
adjudicated,
the court would have been required to rehear much of the same evidence it had
already heard in the first phase of the trial and to readjudicate issues it had already
adjudicated as to STCC. Such an adjudicatory process would have involved the
same kind of inefficiency, delay and piecemeal decision-making process that the
entire controversy doctrine seeks to avoid. Id. at 399.
Should this Court deny the Nassau defendants’ motion to dismiss and allow this case to move
forward, the same evidence in the federal case would be repeated here, frustrating the purpose of
the entire controversy doctrine which is to dispose of all controversies in a single action for the
efficient administration of justice.
Another case relied on by plaintiffs is Wreden v. Township of Lafayette, 436 N.J. Super. 117, 92
A.3d 681 (App. Div. 2014). This case is also distinguishable. The Appellate Division held the
entire controversy doctrine did not apply when no final judgment has been entered and claims were
unresolved. Here, all claims were resolved by virtue of the settlement and dismissal with prejudice.
Wreden held the entire controversy doctrine requires a litigant to present all aspects of a
controversy in one legal proceeding; “it is intended to be applied to prevent a party from
voluntarily electing to hold back a related component of the controversy in the first proceeding by
precluding it from being raised in a subsequent proceeding thereafter.” Id. at 129. This describes
what plaintiffs are doing. FF/Jones held back their claims against the Nassau defendants and must
be precluded here.
Plaintiff is unable to cite to any support in the law for the position it takes. Nor has plaintiff cited
one case with similar facts, for very good reason. This matter falls squarely within the bar of the
entire controversy doctrine and must be dismissed.
c. Successive claims
In determining whether successive claims constitute one controversy for purposes of the doctrine,
the central consideration is whether the claims against the different parties arise from related facts
or the same transaction or series of transactions. DiTrolio v. Antiles, 142 N.J. 253 (1995). As
already briefed, all parties agree that the plaintiffs’ claims against the Nassau defendants arise from
the same agreement and the same transaction that was adjudicated in the previous case.
O’Shea v. Amoco Oil Co., 886 F.2d 584 (3d Cir. 1989) instructs, “if parties or persons will, after
final judgment is entered, be likely to have to engage in additional litigation to conclusively dispose
of their respective bundles of rights and liabilities that derive from a single transaction or related
series of transactions, the omitted components of the dispute or controversy must be regarded as
constituting an element of one mandatory unit of litigation.” Id. at 590–91.
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By virtue of bringing the within case, FF/Jones has established that additional litigation is sought.
The claims FF/Jones omitted to bring in the previous case constitute an element of one mandatory
unit of litigation. They are barred by the entire controversy doctrine.
CONCLUSION
For all of the reasons set forth herein, as well as in the Nassau defendants’ original moving papers, it is
respectfully requested that this Court grant the defendants’ Motion to Dismiss, dismissing the plaintiffs’
complaint.
Respectfully submitted,
MASELLI WARREN, P.C.
By: _/s/ Barbara J. Boyd___
BJB/ms
c. Client (via email)
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Preview
MON-L-001522-22 08/11/2022 1:34:01 PM Pg 1 of 5 Trans ID: LCV20222916887 August 11, 2022 Via e-Courts Honorable Owen C. McCarthy Monmouth County Courthouse 71 Monument Park, 2nd Floor Freehold, NJ 07728 Re: Fortune Funding and Mark Jones v. Nassau Marina Holdings, LLC and Louis Mercatanti Docket No. MON-L-001522-22 Dear Judge McCarthy: Please accept this reply on behalf of defendants, Nassau Marina Holdings LLC and Louis Mercatanti (the “Nassau defendants”) to the supplemental brief filed by plaintiffs, Fortune Funding Concierge, Inc. and Mark Jones (“FF/Jones”) in opposition to the Nassau defendants’ Motion to Dismiss. At the conclusion of oral argument, plaintiffs’ counsel raised the applicability of a consent order entered in the previous action which set forth deadlines for the parties to file amendments to pleadings. Your Honor asked to review the consent order, which plaintiff submitted along with plaintiffs’ supplemental brief. The consent order setting forth filing deadlines has no bearing on this motion to dismiss for the reasons set forth herein. I. The previous matter resulted in a dismissal with prejudice, was adjudicated on the merits and carries preclusive effect. Plaintiffs are mistaken as to the meaning of ‘adjudicated’ by arguing that the federal case was not adjudicated. When the previous lawsuit was dismissed with prejudice against the Nassau defendants and FF/Jones on February 1, 2022 and April 15, 2022, respectively, the entire lawsuit was fully adjudicated on the merits. A dismissal that is specifically rendered with prejudice qualifies as an adjudication on the merits and thus carries preclusive effect. (emphasis supplied) Negron v. Donna, 2010 WL 1050163, United States District Court, D. New Jersey. Unheard motions do not survive the dismissal of a case, and when the plaintiffs enter voluntarily into a settlement with prejudice, there is no room for the plaintiffs to complain of an inequity. The parties settled the federal case based on the definitive certainty of a full and final resolution by agreeing to a dismissal with prejudice. A dismissal with prejudice has to have meaning. The words are not superfluous. A dismissal with prejudice “acts as an adjudication on the merits, and MON-L-001522-22 08/11/2022 1:34:01 PM Pg 2 of 5 Trans ID: LCV20222916887 prohibits filing of a complaint asserting the very same cause of action.” Feinsod v. Noon, 261 N.J. Super. 82, 617 A.2d 1234 (App. Div. 1992). FF/Jones frames its argument as; “the basic argument made by FF/Jones is that it timely filed a Motion to Amend its pleadings. When the Motion to Amend was pending decision, Taub and FF/Jones settled the federal suit and were dismissed from the federal suit.” See plaintiffs’ Supplemental Brief, p. 2. By settling the case with prejudice, the parties adjudicated the case and any motions that were pending were also considered closed. Pending motions do not survive the settlement and dismissal of a lawsuit. If FF/Jones desired to retain any of their potential causes of action against the Nassau defendants, they could have and should have preserved and carved-out those causes of action as part of their settlement and dismissal order in the federal case, or they should not have settled the case. Since they did not do that and instead consented to a dismissal with prejudice, they are barred from relitigating the claim. This Court has no jurisdiction to unwind the settlement and vacate the Federal Court’s Order to allow plaintiffs to proceed. Alternatively, FF/Jones could have filed an appeal to the 3rd Circuit if they disagreed with the decision of the District Court to honor the consent order dismissing the case with prejudice, and ask the 3rd Circuit to permit FF/Jones to vacate the dismissal with prejudice to re-open claims. They did not do that either. Instead, plaintiffs are before the Law Division requesting, in essence, that this Court vacate another court’s order and allow it to litigate an already adjudicated lawsuit. Plaintiffs have provided no support for this extraordinary form of relief. Plaintiffs consented to be in the very position in which they find themselves, and are barred from seeking re-adjudication here. II. The “Entire Controversy Doctrine” bars a subsequent action when the prior action has been tried to judgment or settled. The prior action was settled and thus, is barred. The entire controversy doctrine bars a subsequent action when the prior action, based on the same transactional facts, has been settled. Arena v. Borough of Jamesburg, Middlesex County, 309 N.J. Super. 106 (1998). Both plaintiffs and defendants agree that this action arises out of the same transactional facts: • Plaintiffs’ complaint, ¶ 1 alleges, “This lawsuit arises out of a recently settled federal diversity lawsuit captioned Bruce F. Taub, P.A. v. Louis Mercatanti and Nassau Marina Holdings LLC, et als.” • Plaintiffs’ Brief p. 2, states, “Because the claims set forth in the state Complaint are the same as the claims set forth in the now dismissed proposed federal Third-Party Complaint…” • The Nassau defendants’ moving papers also allege this matter involves the same agreement, the same parties and the same transaction as the federal case. Both parties settled their cases in the previous lawsuit and were dismissed with prejudice. See Nassau defendants’ consent order and FF/Jones’ consent order, attached hereto as Exhibit A and Exhibit B, respectively. The entire controversy doctrine was designed for this exact situation. 2 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 3 of 5 Trans ID: LCV20222916887 The entire controversy rule was designed to overcome the situation where a litigant who tries a gambit in order to have “two shots at the apple.” In this situation, the litigant makes a tactical decision not to sue a party who should be joined or omits a claim, i.e., splits a cause of action. This might be done to eliminate a party who might vigorously defend or simply to have two attempts at recovery. 1B NJPRACT R4:30A Plaintiffs are seeking a second attempt at recovery, another shot at the apple, and for all of the reasons set forth herein, it must be denied and their complaint dismissed. III. The “exceptions” to the entire controversy action are not applicable. Plaintiff argues that this case fits into an “exception” to the entire controversy doctrine, because a motion in the prior case was not adjudicated. As set forth above, the prior case was, according to the case law cited, fully adjudicated on the merits. Negron v. Donna, Id. a. With prejudice vs. without prejudice Plaintiffs’ reliance on Arena v. Borough of Jamesburg, Middlesex County, supra, is misplaced because, as set forth previously, plaintiffs misunderstand the distinction between a case that is voluntarily dismissed without prejudice (Arena) and a case that is fully adjudicated by virtue of a settlement with prejudice (here). In Arena, the plaintiff voluntarily exercised its right to dismiss its case without prejudice prior to the filing of an answer by the defendant. That was a significant reason for the court’s ruling. Here, the federal case was adjudicated over an entire year with 73 docket entries, when FF/Jones voluntarily dismissed its case with prejudice and settled with plaintiff Taub. b. Unknown or unarisen claims Likewise, the other cases cited by plaintiffs are distinguishable. In State, Dept. of Environmental Protection v. Standard Tank Cleaning Corp., 284 N.J. Super. 381, 665 A.2d 753 (App. Div. 1995), a case plaintiffs rely on, the plaintiff DEP did not become aware of any additional violations which would provide the basis of an amended complaint naming additional parties until after the first phase of the trial with the original defendant was almost over. Moreover, they sought to amend to name additional claims and parties in the original court, not before a separate court. They were permitted to name additional parties but the plaintiff could only proceed against the additional parties with respect to violations that had not yet been adjudicated. The entire controversy doctrine does not apply to bar component claims that are unknown, unarisen or unaccrued at the time of the original action. Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310 (1995). In contrast, FF/Jones’ are NOT seeking to amend a complaint but to bring an independent action. FF/Jones’ claim had fully accrued, they knew all facts and they could have named the Nassau defendants in Taub’s case. Instead, they chose to omit potential claims against the Nassau defendants, including them only as an affirmative defense, before consenting to dismissing with prejudice. 3 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 4 of 5 Trans ID: LCV20222916887 State, Dept. of Environmental Protection, Id. set forth the three purposes of the entire controversy doctrine to be (1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay. At 399. In State, Dept. of Environmental Protection, supra, the Appellate Division held that if the plaintiff had been allowed to proceed against the added parties for violations that had been previously adjudicated, the court would have been required to rehear much of the same evidence it had already heard in the first phase of the trial and to readjudicate issues it had already adjudicated as to STCC. Such an adjudicatory process would have involved the same kind of inefficiency, delay and piecemeal decision-making process that the entire controversy doctrine seeks to avoid. Id. at 399. Should this Court deny the Nassau defendants’ motion to dismiss and allow this case to move forward, the same evidence in the federal case would be repeated here, frustrating the purpose of the entire controversy doctrine which is to dispose of all controversies in a single action for the efficient administration of justice. Another case relied on by plaintiffs is Wreden v. Township of Lafayette, 436 N.J. Super. 117, 92 A.3d 681 (App. Div. 2014). This case is also distinguishable. The Appellate Division held the entire controversy doctrine did not apply when no final judgment has been entered and claims were unresolved. Here, all claims were resolved by virtue of the settlement and dismissal with prejudice. Wreden held the entire controversy doctrine requires a litigant to present all aspects of a controversy in one legal proceeding; “it is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter.” Id. at 129. This describes what plaintiffs are doing. FF/Jones held back their claims against the Nassau defendants and must be precluded here. Plaintiff is unable to cite to any support in the law for the position it takes. Nor has plaintiff cited one case with similar facts, for very good reason. This matter falls squarely within the bar of the entire controversy doctrine and must be dismissed. c. Successive claims In determining whether successive claims constitute one controversy for purposes of the doctrine, the central consideration is whether the claims against the different parties arise from related facts or the same transaction or series of transactions. DiTrolio v. Antiles, 142 N.J. 253 (1995). As already briefed, all parties agree that the plaintiffs’ claims against the Nassau defendants arise from the same agreement and the same transaction that was adjudicated in the previous case. O’Shea v. Amoco Oil Co., 886 F.2d 584 (3d Cir. 1989) instructs, “if parties or persons will, after final judgment is entered, be likely to have to engage in additional litigation to conclusively dispose of their respective bundles of rights and liabilities that derive from a single transaction or related series of transactions, the omitted components of the dispute or controversy must be regarded as constituting an element of one mandatory unit of litigation.” Id. at 590–91. 4 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 5 of 5 Trans ID: LCV20222916887 By virtue of bringing the within case, FF/Jones has established that additional litigation is sought. The claims FF/Jones omitted to bring in the previous case constitute an element of one mandatory unit of litigation. They are barred by the entire controversy doctrine. CONCLUSION For all of the reasons set forth herein, as well as in the Nassau defendants’ original moving papers, it is respectfully requested that this Court grant the defendants’ Motion to Dismiss, dismissing the plaintiffs’ complaint. Respectfully submitted, MASELLI WARREN, P.C. By: _/s/ Barbara J. Boyd___ BJB/ms c. Client (via email) 5 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 1 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 2 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 3 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 4 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 1 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 2 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 3 of 4 Trans ID: LCV20222916887 MON-L-001522-22 08/11/2022 1:34:01 PM Pg 4 of 4 Trans ID: LCV20222916887