FRONTIER DEVELOPMENT LLC v. CRAIG TEST BORING CO., INC. et al

Filing 42

OPINION. Signed by Judge Jerome B. Simandle on 9/15/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FRONTIER DEVELOPMENT LLC,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action No.
16-778 (JBS/KMW)

v.
CRAIG TEST BORING CO., INC.
AND CRAIG TESTING
LABORATORIES, INC.,

OPINION

Defendants.

APPEARANCES:
Alan R. Ackerman, Esq.
Law Offices of Alan R. Ackerman
1719 Route 10 East
Suite 106
Parsippany, NJ 07054
Attorney for Plaintiff
Michael J. DeRita, Esq.
Chiumento McNally, LLC
One Echelon Plaza
227 Laurel Road
Suite 100
Vorhees, NJ 08043
Attorney for Defendant

SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court by way of the motion of
Defendants Craig Test Boring Co., Inc. and Craig Testing
Laboratories, Inc. (collectively, “the Defendants”) to dismiss
Plaintiff Frontier Development LLC’s (“Plaintiff”) Amended

Complaint. [Docket Item 32.]1 On February 11, 2016, Plaintiff
filed a Complaint in this Court alleging breach of contract
against both Defendants. [Docket Item 1.] On August 3, 2016,
this Court allowed Plaintiff to amend the Complaint as a matter
of right under Federal Rule of Civil Procedure 15(a). [Docket
Item 16.] Shortly thereafter, Plaintiff filed the Amended
Complaint. [Docket Item 17.] Defendant filed their Answer to the
Amended Complaint on August 23, 2016. [Docket Item 20.] On
January 26, 2017, Defendants filed a motion to dismiss the
Amended Complaint, now pending before the Court. [Docket Item
32.] On February 24, 2017, Plaintiff filed an affidavit of merit
(“AOM”). [Docket Item 35.]
The first issue to be determined by the Court is whether
Plaintiff’s claim sounds in breach of contract or professional
malpractice. If the claim is for professional malpractice, as
Defendants argue, then N.J.S.A. 2A:53A-26 through -29 (“the AOM
Statute” or “the Statute”) applies to Plaintiff’s Amended
Complaint. On the other hand, if the claim is rooted in breach

1

As the Court explains, infra, Defendants styled the instant
motion as a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Plaintiff, however, treated the motion as
one for summary judgment, submitting exhibits in support of its
opposition brief, and Defendants did the same in their reply
brief. Accordingly, the Court, like the parties, treats this
motion as one seeking summary judgment and will consider the
exhibits the parties submitted in support of, and in opposition
to, the Defendants’ motion.
2

of contract, the AOM Statute does not apply and no AOM was
necessary.
If the AOM Statute applies, Plaintiff was required to file
an AOM within 60 (or 120) days of the Defendants’ Answer to the
Amended Complaint, see N.J.S.A. 2A:53A-27, “unless some
exception applies,” Nuveen Mun. Trust ex rel. Nuveen High Yield
Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 312 (3d
Cir. 2012) (quoting Couri v. Gardner, 801 A.2d 1134, 1141 (N.J.
2002)). Under this scenario, if Plaintiff failed to furnish an
AOM within 60 (or 120) days, the Court would consider the
applicability of any potentially-relevant exceptions to the AOM
Statute. If none of the exceptions apply, however, the Court
must dismiss Plaintiff’s Amended Complaint with prejudice. Id.
at 305; see also N.J.S.A. 2A:53A-29 (setting forth the
consequence for a plaintiff’s failure to provide an affidavit of
merit).
For the reasons discussed below, the Court finds that the
AOM Statute applies to Plaintiff’s claim. Plaintiff failed to
furnish an AOM within the statutorily-required timeframe and
none of the exceptions to the AOM Statute apply. Accordingly,
the Court will, as it must, dismiss Plaintiff’s Amended
Complaint with prejudice.

3

BACKGROUND
A.

Factual Background

Plaintiff was the developer of a commercial building
located in Egg Harbor Twp., New Jersey. (Amend. Compl. at ¶ 7.)
During the early stages of the construction project, Plaintiff
concluded it was necessary “to determine the depth of the
topsoil to be removed to prepare the site for construction, and
whether the soil beneath the topsoil was stable to support the
proof-rolling of a foundation for the structure.” (Id. at ¶ 8.)
To that end, Plaintiff entered into an agreement with
Craig Test Boring Co., Inc. (“Defendant Boring”), whereby
Defendant Boring was to perform geotechnical boring testing and
prepare a soil boring report (“the Report”). (Id. at ¶ 11.)
Defendant Boring then subcontracted with Craig Testing
Laboratories, Inc. (“Defendant Testing”) to perform the actual
testing and prepare the Report. (Id. at ¶ 12.) On October 14,
2015, Plaintiff received a copy of the Report from Defendant
Boring. (Id. at ¶ 20.) The Report was authored by Eduardo
Freire, P.E., an employee of Defendant Testing. (Id. at ¶ 20.)
According to Plaintiff, “[a]s a result of the faulty
findings in the [Report]. . . Plaintiff was required to remove
an excessive amount of topsoil, and loose ground underneath the
topsoil in contradiction to the original Geotechnical
Engineering Report.” (Id. at ¶ 25.) According to Plaintiff,
4

“[t]he faulty [Report]. . . resulted in delay in Plaintiff’s
construction schedule, the incursion of excessive costs to
remove in excess of 3,000 additional yards of topsoil and loose
granular soil beneath the topsoil, and Plaintiff’s purchase of
suitable fill to stabilize the ground.” (Id.) As compensation
for the damages Plaintiff allegedly incurred, Plaintiff requests
$174,078.74 from the Defendants. (Id. at ¶ 26.)
B.

Procedural Background

On February 11, 2016, Plaintiff filed a Complaint before
this Court, alleging breach of contract. [Docket Item 1.]
Specifically, Plaintiff claimed that: (1) Defendant Boring
breached the services contract with Plaintiff by impermissibly
assigning the testing work and preparation of the Report to
Defendant Testing; and (2) both Defendants breached the services
contract by “misstat[ing] the depth of the topsoil and amount of
excavation that would be required on the property to prepare the
site for construction.” [Id. at ¶¶ 13, 16.]
On March 11, 2016, Defendants filed their first Answer and
asserted, among other affirmative defenses, that the Complaint
was barred by Plaintiff’s failure to comply with the AOM
Statute. [Docket Item 5 at 6, ¶ 26.] On July 12, 2016,
Defendants filed a motion to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), on the basis that

5

Plaintiff had not filed an AOM within 120 days of Defendant’s
March 11, 2016 Answer. [Docket Item 14.]
On August 1, 2016, Plaintiff filed a cross-motion to amend
the Complaint. [Docket Item 15.] In this cross-motion, Plaintiff
argued that: (1) the Court should grant the Plaintiff leave to
amend the Complaint under Federal Rule of Civil Procedure 15(a);
(2) if the Court does not grant Plaintiff leave to amend, an AOM
should not be required because Plaintiff’s cause of action
against Defendants is for breach of contract, not professional
malpractice; (3) even if the AOM Statute does apply to
Plaintiff’s claim, the “common knowledge” exception removes
Plaintiff’s obligation to file an AOM; and (4) if the Court
grants the Plaintiff’s motion, Plaintiff should have 60 days
from when Defendants file their Amended Answer to file the AOM.
[Docket Item 15.] On August 3, 2016, the Court granted
Plaintiff’s request for leave to amend as a matter of right
under Federal Rule of Civil Procedure 15(a)(1)(B), and dismissed
Defendants’ first motion to dismiss as moot. [Docket Item 16.]
On August 9, 2016, Plaintiff filed an Amended Complaint.
[Docket Item 17.] In the Amended Complaint, Plaintiff re-alleged
that: (1) Defendant Boring breached the services contract with
Plaintiff by impermissibly assigning the testing work and
preparation of the Report to Defendant Testing; and (2) both
Defendants breached the services contract by providing Plaintiff
6

with a “faulty report,” containing “faulty findings” and “faulty
conclusions.” [Id. at ¶¶ 12, 24-25.] On August 23, 2016,
Defendants filed an Answer to the Amended Complaint, again
raising the affirmative defense that the Amended Complaint is
barred by Plaintiff’s failure to comply with the AOM Statute.
[Docket Item 20 at 7, ¶ 26.]
On August 17, 2016, Defendants filed a motion for
reconsideration of the Court’s Order dismissing the original
dismissal motion as moot. [Docket Item 18.] Defendants argued
that, by granting Plaintiff leave amend, the Court had
improperly permitted Plaintiff to circumvent the AOM Statute’s
120-day filing requirement. [Id.] On September 6, 2016,
Plaintiff filed an Opposition to Defendant’s motion for
reconsideration [Docket Item 21], and on September 19, 2016,
Defendant filed a Reply to Plaintiff’s Opposition. [Docket Item
24.]2 On September 21, 2016, Judge Williams ordered that
“discovery shall be STAYED pending the outcome of the pending
Motion for Reconsideration.” [Docket Item 26.]
On January 26, 2017, the Court denied the Defendants’
Motion for Reconsideration. [Docket Item 31.] As the Court noted
in its Order, Plaintiff had been granted leave to amend the
Complaint as a matter of right under Federal Rule of Civil

2

Plaintiff filed an unauthorized sur-reply brief on September
20, 2016 [Docket Item 25] that was not considered.
7

Procedure 15(a)(1)(B), thereby rendering any issues regarding
the 120-day period to file an AOM moot. [Id.] Since the Court
had not decided whether the Plaintiff’s claims required an AOM,
the Court explained, “Defendants are free to file additional
motions in response to Plaintiff’s Amended Complaint contesting
whether or not an Affidavit of Merit needs to be filed in this
case. . . .” [Id.]
The following day, Defendants filed a motion to dismiss
Plaintiff’s Amended Complaint. [Docket Item 32.] On February 8,
2017, Plaintiff filed its Opposition to Defendants’ motion to
dismiss. [Docket Item 33.] On February 14, 2017, Defendants
filed their Reply to Plaintiff’s Opposition. [Docket 34.]
Finally, on February 24, 2017, Plaintiff filed an AOM
prepared by Sean DiBartolo, P.E. [Docket 35.] Plaintiff provided
no explanation for its filing of the AOM, nor has it sought to
do so.
STANDARD OF REVIEW
Defendants have styled the motion presently under
consideration as a motion to dismiss for failure to state a
cause pursuant to Federal Rule of Civil Procedure 12(b)(6). As
the Court explained in Note 1, supra, both parties have treated
the motion as one for summary judgment, submitting evidence
outside the pleadings in support of their respective positions.
As the parties themselves have treated Defendants’ motion as a
8

summary judgment motion, the Court follows their lead and will
review the motion as one seeking summary judgment.
This treatment of Defendants’ motion is consistent with the
Third Circuit’s interpretation of the AOM Statute. As the Third
Circuit recently explained, “[t]hat the [AOM] is not a pleading
requirement counsels that a defendant seeking to ‘dismiss’ an
action based on the plaintiff's failure to file a timely
affidavit should file a motion for summary judgment under Rule
56, and not a motion to dismiss for failure to state a claim
under Rule 12(b)(6).” Nuveen, 692 F.3d at 303 n.13. To that end,
the Third Circuit instructs trial courts “to consider a motion
to dismiss for failure to state a claim as a motion for summary
judgment, as provided by Rule 12(d).” Id. Thus, under Federal
Rule of Civil Procedure 12(d), the Court will consider the
Defendants’ motion to dismiss the Amended Complaint as a motion
for summary judgment pursuant to Federal Rule of Civil Procedure
56. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.”).
Summary judgment is appropriate when the materials of
record “show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In deciding whether there
9

is a disputed issue of material fact, the Court must view the
evidence in favor of the non-moving party by extending any
reasonable favorable inference to that party; in other words,
“the nonmoving party's evidence ‘is to be believed, and all
justifiable inferences are to be drawn in [that party's]
favor.’” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986)).
DISCUSSION
A.

The AOM Statute Applies

Plaintiff avers that the AOM Statute does not apply to its
claim against Defendants because “[n]o Court or attorney can
find that Plaintiff’s claim [for breach of contract] . . .
requires a ‘deviation from the professional standard of care.’”
(Pl. Opp. Br. at 13.) Defendants, on the other hand, argue that,
despite having “conveniently labeled this matter as a breach of
contract claim,” the AOM Statute applies here because
Plaintiff’s allegation that Defendants provided a “faulty”
report is effectively the same as alleging that Defendants
failed to comply with the professional standards of care for
engineers. (Def. Br. at 8-9.) The Court finds that the AOM
Statute applies for the following reasons.
The AOM Statute was intended “to weed out frivolous
lawsuits early in litigation while, at the same time, ensuring
that plaintiffs with meritorious claims will have their day in
10

court.” Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495, 500 (N.J.
2001); see also Nuveen, 692 F.3d at 308 (“[T]he purpose of the
[AOM] Statute is to identify frivolous malpractice actions by
requiring independent verification of the validity of claims.”).
To that end, the Statute requires that:
In any action for . . . property damage resulting from an
alleged act of malpractice or negligence by a licensed
person3 in his profession or occupation, the plaintiff shall
. . . provide each defendant with an affidavit of an
appropriate licensed person that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable
professional or occupational standards or treatment
practices.
N.J.S.A. 2A:53A-27.4
When evaluating whether the AOM Statute applies to a
particular claim, “[i]t is not the label placed on the action
that is pivotal but the nature of the legal inquiry.” Couri, 801
A.2d at 1141. Thus, the New Jersey Supreme Court instructs that,
“when presented with a tort or contract claim asserted against a

3

The AOM Statute provides a list of sixteen professions and
occupations which qualify as “a licensed person.” N.J.S.A.
2A:53A-26. As relevant to this case, the list includes
“engineers.” N.J.S.A. 2A:53A-26(e). Business organizations of
“licensed professionals” are similarly covered by the AOM
Statute. Endl v. New Jersey, 2016 WL 1224133, at *4 (D.N.J. Mar.
29, 2016) (citing Martin v. Perinni Corp., 37 F. Supp. 2d 362,
366 (D.N.J. 1999)).
4 In diversity actions, as here, the Court must apply substantive
state law, including New Jersey’s Affidavit of Merit statute.
See Chamberlain v. Ciampapa, 210 F.3d 154, 158 (3d Cir. 2000)
(explaining that the affidavit of merit statute must be applied
by federal courts sitting in diversity).
11

professional specified in the statute, rather than focusing on
whether the claim is denominated as tort or contract, attorneys
and courts should determine if the claim’s underlying factual
allegations require proof of a deviation from the professional
care applicable to that specific profession.” Id.; see also
Levinson v. D’Alfonso & Stein, P.C., 727 A.2d 87, 89 (N.J.
Super. Ct. App. Div. 1999)(“Courts should not countenance an
attempt to dilute the Affidavit of Merit statute by giving
effect to a mere change in nomenclature.”).
In Charles A. Manganaro Consulting Engineers, Inc. v.
Carneys Point Twp. Sewerage Auth., the defendant counter-sued
the plaintiff, alleging that “[p]laintiff breached its contract
. . . by failing to properly design the project in question, by
failing to properly prepare the plans and specifications, and
the plaintiff failed to properly review shop drawings submitted
by the general contractor.” 781 A.2d 1116, 1117 (N.J. Super. Ct.
App. Div. 2001). The plaintiff subsequently filed a motion for
summary judgment seeking dismissal of the defendant’s
counterclaim on the ground that the defendant failed to provide
an AOM within 120 days of the plaintiff’s answer. Id. The
defendant, like Plaintiff here, maintained it was not required
to file an AOM because its counterclaim was for breach of
contract, rather than professional malpractice. Id. at 349.

12

The Appellate Division found that “even though defendant
labeled its counterclaim as a claim for breach of contract, it
was required to provide plaintiff an affidavit of merit.” Id.
The Court first observed that “the essential factual allegations
upon which defendant’s counterclaim rests are that plaintiff
failed to properly prepare the plans and specifications and
failed to properly review shop drawings submitted by the general
contractor.” Id. (emphasis added) (internal quotation marks
omitted). The Court then concluded that the defendant’s
allegation that the plaintiff failed to act “properly” required
an expert to show that plaintiff had not acted “with that degree
of care, knowledge, and skill ordinarily possessed and exercised
in similar situations by the average member of the profession
practicing in the field.” Id. (quoting Aielo v. Muhlenberg Reg’l
Med. Ctr., 733 A.2d 433, 437 (N.J. 1999)). Finding that the
defendant’s allegation was for professional malpractice and not
breach of contract, the Court held that the AOM Statute applied.
Like the defendant in Manganaro, Plaintiff in this case
makes much of fact that its claim against Defendants is labeled
“breach of contract.” While Plaintiff alleges that Defendant
Boring breached its services contract with Plaintiff by
subcontracting work to Defendant Testing (Amend. Compl. at ¶¶
11-14), the gravamen of Plaintiff’s complaint is that the
“faulty report” prepared by the Defendants contained “faulty
13

conclusions” and “faulty findings.” (Id. at ¶¶ 24-25)(emphasis
added). Thus, as in Manganaro where expert testimony was
necessary to prove whether the plaintiff had acted “properly,”
expert testimony will similarly be necessary to determine if
Defendants performed their duties in a “faulty” manner and
whether Defendants’ findings and conclusions were “faulty.”
Plaintiff’s claim sounds in professional malpractice and the AOM
Statute applies, as required by New Jersey law.
B.

The AOM was not Timely Filed

Having found that the AOM Statute applies, the Court will
now consider whether the AOM filed on February 24, 2017 was
timely. For the following reasons, the Court finds it was not.
With respect to the timing for filing an AOM, the Statute
provides: “the plaintiff shall, within 60 days following the
date of filing of the answer to the complaint by the defendant,
provide each defendant with an [AOM].” N.J.S.A. 2A:53A-27
(emphasis added). The AOM Statute further permits the court,
“upon a finding of good cause,” to grant “no more than one
additional period, not to exceed 60 days, to file the [AOM].”
Id. In other words, the AOM Statute requires the plaintiff to
furnish an AOM within no more than 120 days of the defendant’s
answer (assuming one extension for good cause).
According to the Third Circuit, “the beginning point of the
120-day limitations period [is] the date on which a defendant
14

files his answer to the final amended complaint.” Snyder v.
Pascack Valley Hosp., 303 F.3d 271 (3d Cir. 2002). Defendants
filed their Answer to the Amended Complaint on August 23, 2016.
[Docket Item 20.] Thus, Plaintiff’s AOM was due on October 22,
2016, or at the latest on December 21, 2016, assuming Plaintiff
would have received a 60-day extension for good cause. Plaintiff
did not file its AOM until February 24, 2017. [Docket Item 35.]
Even if Plaintiff requested a 60-day extension, which it did
not, the filing would still fall outside the required period by
more than two months.5
Under New Jersey law, the late-filed AOM, which was neither
created nor served within the 120-day statutory period, cannot
be submitted now in fulfillment of the statutory requirements.
See McBride v. Cty. of Atlantic, 2011 WL 3236212 (D.N.J. July
28, 2011) (citing Kritzberg v. Tarsny, 768 A.2d 810, 813 (N.J.
Super. Ct. App. Div. 2011)); see also Douglass v. Obade, 819
A.2d 445, 446 (N.J. Super. Ct. App. Div. 2003) (“[T]he end of
the line . . . the drop-dead date [for filing an AOM], is 120
days.”). Accordingly, the only way Plaintiff’s professional
malpractice claim can proceed is if it falls within one of the
exceptions to the AOM Statute, addressed below.

5

Notably, the AOM was also filed ten days after Defendants’
Motion to Dismiss the Amended Complaint was fully briefed.
Plaintiff provided no explanation for filing the AOM after
briefing for Defendants’ motion had concluded.
15

C.

Exceptions to the AOM Statute

Since Plaintiff failed to timely file an AOM, the Court
must consider whether one of the four “limited exceptions” to
the Statute applies. Nuveen, 692 F.3d at 305. These exceptions
include: (1) a statutory exemption regarding lack of
information; (2) a “common knowledge” exception; (3) an
exception predicated on “substantial compliance” with the AOM
requirement; and (4) the presence of “extraordinary
circumstances” that, for equitable reasons, may warrant relief.”
Id. (citations omitted); see also Fontanez v. United States, 24
F. Supp. 3d 408, 413-15 (D.N.J. 2014) (detailing the relevant
exceptions). The Court will now consider each relevant exception
in turn.6
1.

Common Knowledge Exception

Plaintiff first argues that, if the AOM Statute applies,
the common knowledge exception removes Plaintiff’s obligation to
furnish an AOM. (Pl. Opp. Br. at 17.) Specifically, Plaintiff
contends that, in order to determine whether Defendants’
findings and conclusions were “faulty,” the “average juror can
use common knowledge to understand that Freire’s original
Geotechnical Engineering Report said remove between two (2”) and

6

Plaintiff does not raise the first exception (regarding lack of
information) in any of its briefs. Accordingly, the Court will
only consider the second, third, and fourth exceptions to the
AOM Statute referenced above.
16

three (3”) inches of topsoil . . . and [the Report] concluded
that Plaintiff remove six (6) inches of top soil.” (Id. at 21.)
According to Plaintiff, “It is within common knowledge of the
jury that six (6) inches of topsoil is greater than three (3)
inches of top soil.” (Id.) Defendants, in turn, contend that the
common knowledge exception does not apply to “this highly
technical Professional Engineering Malpractice [case].” (Def.
Br. at 6.) To that end, Defendants argue that “the issue [here]
involves intricate engineering calculations and knowledge of
subsurface geotechnical engineering analyses to determine the
depth of suitable soils to build upon in a structurally
sufficient manner,” which will resolve expert witness testimony
to resolve. (Id. at 8.) The Court finds that the common
knowledge exception does not apply for the following reasons.
The New Jersey Supreme Court first articulated a common
knowledge exception to the AOM Statute in Hubbard. There, the
Court explained that “[t]he doctrine applies where ‘jurors'
common knowledge as lay persons is sufficient to enable them,
using ordinary understanding and experience, to determine a
defendant's negligence without the benefit of specialized
knowledge of experts.” Hubbard, 774 A.2d at 499 (quoting Estate
of Chin v. Saint Barnabas Med. Ctr., 734 A.2d 778, 785 (N.J.
1999)). Thus, in common knowledge malpractice cases a plaintiff
“will not need expert testimony at trial to establish the
17

standard of care or a deviation therefrom.” Hubbard, 774 A.2d at
499.
In keeping with the New Jersey Supreme Court's guidance to
construe this exception narrowly,7 the case history shows that
the exception has only been applied in “exceptionally obvious”
cases. McBride, 2011 WL 3236212, at *4. In Hubbard, for example,
a dentist removed the wrong tooth. 774 A.2d at 498. In Palanque
v. Lambert–Woolley, decided the same day as Hubbard, a physician
twice misread test results, which led to a misdiagnosed ectopic
pregnancy and ultimately unnecessary surgery. 774 A.2d 501, 503
(N.J. 2001). In Estate of Chin, a physician and several nurses
had misconnected tubes to a hysteroscope. 734 A.2d at 781. As a
result, gas flowed into the decedent's uterus instead of fluid,
causing an embolism. Id. In Bender v. Walgreen Eastern Co.,
Inc., a pharmacist filled a prescription with the incorrect
drug. 945 A.3d 120, 122 (N.J. Super. Ct. App. Div. 2008). In
each of these “exceptionally obvious” cases, the New Jersey
courts held that a jury was entitled to rely on its common

7

The Hubbard Court cautioned against parties overly relying on
the common knowledge exception in professional malpractice
cases: “[W]e construe that exception narrowly in order to avoid
non-compliance with the statute. Indeed, the wise course of
action in all malpractice cases would be for the plaintiffs to
provide affidavits even when they do not intend to rely on
expert testimony at trial.” Id. at 501.
18

knowledge to determine whether the defendant breached a duty of
care.
A few examples of cases which did not warrant a common
knowledge exception make the “exceptionally obvious” quality of
the above cases even more apparent. In Isshak v. Eichler, the
plaintiff underwent emergency eye surgery to reattach a detached
retina in his right eye, at defendant’s urging, which resulted
in double vision and an eye infection in plaintiff's right eye.
2010 WL 1030058, at *1 (N.J. Super. Ct. App. Div. Mar. 22,
2010). The Court ruled that expert testimony would be necessary
because “[i]t is only through expert testimony that a jury may
be apprised of any risks inherent in retinal surgery.” Id. at
*2. In D'Amico v. Jersey Shore Univ. Med. Ctr., meanwhile, a
physician left a pebble inside plaintiff's knee during surgery.
2009 WL 2426339, at *1 (N.J. Super. Ct. App. Div. Aug. 10,
2009). This too did not fall under the common knowledge
exception because “some objects may safely be left in tissue,
and it may be more harmful to remove an object than to leave it
in.” Id. at *2. Again, expert testimony was necessary to
determine liability. Id.
In this case, the primary basis for Plaintiff’s claim of
professional negligence against Defendants arises from alleged
“faulty findings” and “faulty conclusions,” which Defendants
included in an allegedly “faulty report.” (Amend. Compl. at ¶¶
19

24-25.) This is not a case where Defendants provided no report
to Plaintiff, nor is this case one in which the Defendants’
alleged conduct was so egregious as to permit the jury to use
its common sense to determine whether the Defendants clearly
breached the duty of engineering care owed to Plaintiff. Such a
claim could, perhaps, fall under the common knowledge exception.
But without further explanation of what a “not faulty” report
should have looked like, and without clarity as to how
Defendants’ alleged breach of their duty led to the harm
complained of, a jury of laypersons would not be able, “using
ordinary understanding and experience, to determine
[Defendants’] negligence without the benefit of specialized
knowledge or experts.” Estate of Chin, 734 A.2d at 785. An
expert of the type specified by the AOM Statute is precisely
what lay finders would need to understand the standard of
engineering applicable to the preparation of a soil boring
report and to determine whether Defendants breached this
standard. For these reasons, the Court does not find that this
case rises to the “exceptionally obvious” level necessary to
permit application of the common knowledge exception.
2.

Substantial Compliance Exception

Plaintiff next argues, “[i]f the Court holds that Plaintiff
needs to comply with the Affidavit of Merit [Statute], it should
find that Plaintiff has substantially complied. . . .” (Pl. Opp.
20

Br. at 25.) In response, Defendants contend that “Plaintiff here
has fallen short of its burden to demonstrate any of the five
factors” required to show “substantial compliance.” (Def. Rep.
Br. at 12.) The Court finds that Plaintiff has not substantially
complied with the AOM Statute for the following reasons.
In Cornblatt v. Barow, the New Jersey Supreme Court first
recognized a substantial compliance exception to the AOM
Statute. 708 A.2d 401, 411 (N.J. 1998). The purpose behind the
substantial compliance doctrine, the Court explained, “is to
avoid the harsh consequences that flow from technically
inadequate actions that nonetheless meet a statute's underlying
purpose. It is a doctrine based on justice and fairness,
designed to avoid technical rejection of legitimate claims.”
Galik v. Clara Maass Med. Ctr., 771 A.2d 1141, 1148 (N.J. 2001)
(internal citation omitted). To that end, the substantial
compliance exception requires the plaintiff to show:
(1) the lack of prejudice to the defending party; (2) a
series of steps taken to comply with the statute involved;
(3) a general compliance with the purpose of the statute;
(4) a reasonable notice of petitioner's claim, and (5) a
reasonable explanation why there was not a strict
compliance with the statute.”
Id.
Here, the Court finds that Plaintiff failed to satisfy the
second requirement, as it has not demonstrated any steps were
taken to comply with the AOM Statute before the 60 (or 120) day

21

period expired. Nor has Plaintiff satisfied the fifth
requirement, as Plaintiff has provided no explanation for its
non-compliance with the AOM Statute. Accordingly, the Court
finds that the substantial compliance exception does not apply.
3.

Extraordinary Circumstances Exception

Finally, Plaintiff argues that Judge Williams’ Scheduling
Order, which stayed discovery “pending the outcome of the
pending Motion for Reconsideration,” should excuse their failure
to timely file the AOM. Specifically, Plaintiff avers that Judge
Williams’ Scheduling Order is “good cause to toll, and extend,
the time Plaintiff has to file an [AOM] should the Court find
one is required” (Pl. Opp. Br. at 25). Despite Plaintiff’s
reference to “tolling,” the Court considers this argument as one
made under the exceptional circumstances exception to the AOM
Statute.8 For the reasons explained below, the Court finds that
the exceptional circumstances exception does not apply here.

8

The Court’s determination is supported by the headings in
Plaintiff’s own brief, (see Pl. Opp. at 24 (“[The AOM Statute]
Provides for an Exception of Time Under Exceptional
Circumstances”)), as well as this Court’s past treatment of such
arguments, see McMullin v. Harleysville Ins. Co., Inc., 200 F.
Supp. 3d 460, 467-68 (D.N.J. 2016)(addressing a request for
tolling under the exceptional circumstances exception to the AOM
Statute); see also Richards v. Wong, 2015 WL 1931486, at *4
(D.N.J. 2015)(“The Affidavit of Merit is not a discovery
mechanism controlled by court rules, but rather is a
[substantive] statutory requirement pursuant to N.J.S.A. 2A:53A–
26. Thus, when the Court issued a stay on discovery, it did
not toll the time for the filing of the Affidavit of Merit.”).
22

Shortly after the AOM Statute was enacted into law, the New
Jersey Supreme Court explained that “a dismissal for failure to
comply with the [AOM] statute should be with prejudice in all
but extraordinary circumstances.” Cornblatt, 708 A.2d at 413.
The Third Circuit has since recognized that the determination of
“extraordinary circumstances” is, necessarily, a fact-sensitive
inquiry. Chamberlain, 210 F.3d at 162 (citing Hartsfield v.
Fantini, 695 A.2d 259, 263 (N.J. 1997)).
Judge Williams’ Scheduling Order was issued 29 days after
Defendants filed their Amended Reply. [Docket Item 26.] The AOM
was filed on February 24, 2017 [Docket Item 35], which was 29
days after this Court’s Order denying Defendants’ Motion for
Reconsideration on January 26, 2017. [Docket Item 31.] Thus, if
one were to disregard the period of time between Judge William’s
Scheduling Order and this Court’s Order denying reconsideration,
as Plaintiff requests, the AOM would have been filed 58 days
after Defendants’ Amended Answer. The issue is presented whether
the temporary stay of discovery presents an “extraordinary
circumstance” under which the tardy filing of the AOM should be
excused.
In Chamberlain, the plaintiff argued that, since the
defendant had not explicitly requested an AOM in his answer and
the District Court had not ordered an AOM to be furnished in its
pre-trial scheduling order, the plaintiff was “lulled” into
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believing an AOM was unnecessary. 210 F.3d at 162. But, as the
Third Circuit explained, the AOM Statute clearly outlines the
filing requirements for a professional malpractice case. Id. at
162-63. Moreover, the plaintiff did not file any motions
requesting clarification as to whether an AOM was necessary, nor
did the plaintiff ask for an extension of time to file the AOM.
Id. at 163. Indeed, the Court observed, “nothing occurred during
this case that would lead the parties to believe a ‘time-out’
from filing deadlines existed.” Id. Accordingly, the Third
Circuit affirmed the District Court’s decision to dismiss the
plaintiff’s complaint with prejudice. Id.
On the other hand, New Jersey courts have exercised
discretion, when appropriate, to excuse the untimely filing of
an AOM. In Hyman Zamft and Manard, L.L.C. v. Cornell, for
example, the New Jersey Appellate Division found that a
mediation order imposing a stay on “further proceedings” imposed
a “time-out” on all litigation and, therefore, excused the
untimely filing of an AOM. 707 A.2d 1068, 1072 (N.J. Super. Ct.
App. Div. 1998). Similarly, in McMullin this Court excused the
plaintiffs’ untimely filing of an AOM after finding that a
District-wide order issuing a temporary stay of “further
litigation” in all Hurricane Sandy flood cases, “froze-in-time
this action, and all Hurricane Sandy actions, to allow the
parties to engage in settlement efforts, and no party ever
24

sought relief from the stay.”

200 F. Supp. 3d at 468 (emphasis

in original).
On the surface, the circumstances in Hyman and McMullin
might appear similar to those present in the immediate case. But
there are a number of notable differences.
First, Judge Williams’ Scheduling Order only stayed
“discovery,” rather than “further litigation” or “further
proceedings.” There was, therefore, no indication that
litigation had been frozen in time, just the parties’ discovery
obligations. Indeed, litigation of the pending dispositive
motion continued.
Second, unlike in Hyman and McMullin, Plaintiff here does
not actually claim that Judge Williams’ Scheduling Order staying
discovery created any “confusion” about Plaintiff’s obligation
to timely file an AOM. Indeed, Plaintiff has given no
explanation for its late-filed AOM. Rather, Plaintiff simply
argues that Judge Williams’ Scheduling Order “is good cause to
toll, and extend, the time the Plaintiff has to file an AOM
should the Court find one is required.” (Pl. Opp. Br. at 25.)
The Court disagrees.
Third, in a brief filed on August 1, 2016, Plaintiff
conceded, “If the Court Grants Plaintiff’s Cross-Motion to Amend
the Complaint, Plaintiff Has sixty (60) Days to Comply with the
Requirements of [the AOM Statute].” [Docket Item 15 at 31.]
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Thus, Plaintiff gave clear acknowledgment of its AOM obligation
well before Judge Williams’ Scheduling Order took effect. And
there is no evidence on this record that Plaintiff sought any
clarification as to the effect of the Judge Williams’ Scheduling
Order, which was issued 52 days after the Court granted
Plaintiff’s cross-motion to amend the Complaint.
Finally, and most importantly, Defendants first asserted
the affirmative defense that an AOM was required in their Answer
to the original Complaint filed on March 11, 2016. [Docket Item
5 at 6, ¶ 26.] Thus, Plaintiff was placed on notice of its AOM
requirement almost a year before it filed the AOM, and had more
than six months before Judge Williams’ Scheduling Order to file
an AOM. Instead, Plaintiff decided to wait until February 24,
2017 to furnish an AOM to Defendants. And, again, Plaintiffs
provided no explanation for doing so.
Time and again, the New Jersey courts have made plain that
“an attorney’s inadvertence in failing to timely file an
affidavit will generally result in dismissal with prejudice.”
Paragon Constr., Inc. v. Peachtree Condo. Ass’n, 997 A.2d 982,
986 (N.J. 2010); see also Hyman, 707 A.2d at 1071
(“Carelessness, lack of circumspection, or lack of diligence on
the part of counsel are not extraordinary circumstances which
will excuse missing a filing deadline.”); Ferreira, 836 A.2d at
784 (“[A]ttorney inadvertence is not a circumstance entitling
26

plaintiff to a remedy of dismissal of a complaint without
prejudice.”).
Despite Defendants’ repeated requests for an AOM, Plaintiff
decided not to file one until after briefing had concluded on
Defendants’ second motion to dismiss. Plaintiff was afforded
ample notice and opportunity to file an AOM before the 60 (or
120) day deadline passed, and Plaintiff was clearly capable of
actually producing one. [See Docket Item 35.] The circumstances
here are far from “exceptional” and do not warrant dismissal
without prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
the Amended Complaint will be regarded as a motion for summary
judgment, which will be granted for failure to timely file an
AOM pertaining to Defendants’ alleged professional engineering
malpractice as required by N.J.S.A. 2A:53A-26 through -29. An
accompanying Order will be entered.

September 15, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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