SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3062-20

TEVIN WELCOME,

Plaintiff-Appellant,

v.

HUFFMASTER 

STAFFING, INC., 

BRAD CARR, 

KELLY JOHNSON, and

TREVOR FANDALE,

Defendants-Respondents.

__________________________

Argued January 24, 2022 – Decided February 8, 2022

Before Judges Sabatino, Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-3390-20.

Peter D. Valenzano argued the cause for appellant 

(McComber McComber & Luber, PC, attorneys; 

Lauren M. Hill, of counsel and on the briefs; Peter D. 

Valenzano, on the briefs).

R.J. Cronkhite (Dinsmore & Shohl LLP) of the 

Michigan bar, admitted pro hac vice, argued the cause 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-3062-20

for respondent (Dinsmore & Shohl LLP, attorneys;

Joshua M. Link, of counsel and on the brief; R.J. 

Cronkhite, on the brief).

PER CURIAM

This appeal arises out of plaintiff's completion of an online application for 

a job as a driver with defendants' company. The employment application 

contained a form arbitration provision, which recited that the job applicant 

agreed that any dispute arising out of his employment, including discrimination 

claims, would be resolved through arbitration instead of judicial adjudication. 

After starting to work for the company as an employee van driver, plaintiff 

became concerned the company was not enforcing COVID-19 mask and safety 

precautions, and that he would be infected by van passengers and fellow 

employees who did not wear masks. Plaintiff contends he was particularly 

concerned he could transmit the virus to his six-year-old son, who has health 

problems. Plaintiff allegedly complained about this to his superiors, and they 

discharged him soon thereafter.

Plaintiff sued the company and several of its principals in the Law 

Division, claiming he was terminated in violation of the New Jersey Law 

Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -50, and the Conscientious 

Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. Defendants filed 
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a motion to dismiss, and then an answer after plaintiff amended his complaint. 

Defendants' answer included thirteen affirmative defenses, none of which

mentioned the arbitration provision. Defendants also filed a demand for a trial 

by jury.

Ten months went by. During that time, the parties exchanged document 

discovery and interrogatory responses, and some motion practice occurred. 

Eight days after the company took plaintiff’s deposition, with depositions of the 

two individual defendants having been scheduled and pending, the company 

raised for the first time the arbitration clause.

Defendants moved to dismiss the lawsuit and compel arbitration. The 

depositions of the individual defendants were cancelled by mutual agreement of 

counsel. In opposition, plaintiff argued the arbitration clause was unenforceable 

because it was unconscionable and not sufficiently clear or prominent. He also 

relied upon a 2019 amendment to the LAD, N.J.S.A. 10:5-12.7, that prohibits 

such waivers purporting to deprive plaintiffs in discrimination cases of their 

substantive and procedural rights, including that to a jury trial. Plaintiff further 

argued that defendants waived their ability to compel arbitration by not asserting 

that threshold forum-related issue for over ten months.
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After oral argument, the motion judge issued a written opinion rejecting 

plaintiff’s arguments and compelling arbitration. This appeal ensued.

For the reasons that follow, we reverse the trial court's order. We do so 

because defendants, by their conduct within the court case and their lengthy 

inattentiveness to their company's own contractual provision, waived the 

opportunity to compel arbitration. Such a waiver is equitably appropriate in the 

circumstances presented here, under the multi-faceted analysis prescribed by the 

Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 264, 280-81 

(2013). Because of that waiver, we need not address the remaining arguments

which plaintiff advances for reversal.

I.

Since our disposition turns on the forum-related waiver point, we focus 

our discussion chiefly on the matter's procedural background.

The Online Employment Application

On March 18, 2020, plaintiff Tevin Welcome, then a resident of Texas, 

electronically filled out an employment application form for a trucking position 

with defendant Huffmaster Staffing, Inc. through the job listings website 

Indeed.com. Plaintiff is an experienced truck driver who has worked for several 

different companies since the completion of his military service. He is married 
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and the father of four minor children, one of whom suffers from asthma. 

Huffmaster, a corporation headquartered in Michigan, provides strike 

management and security services. 

The company's job application is four pages long. The first two-and-ahalf pages mostly consist of blank space for the applicant's personal and work 

history information. The last page-and-a-half of the form comprises four 

sections in slightly smaller font titled, sequentially, "DISABILITY 

ACCOMMODATION," "NOTICE OF RIGHTS FOR DISABLED PERSONS," 

"NOTICE OF MEDICAL EXAMINATION," and "AUTHORIZATION AND 

UNDERSTANDING[.]" The fourth and last section is the lengthiest, 

comprising nine numbered clauses.

The fifth clause included under the "AUTHORIZATION AND 

UNDERSTANDING" section reads, in relevant part:

5. I understand and agree that in the event a dispute 

arises concerning my employment with and/or 

termination from the Company the sole and exclusive 

method for resolving any and all disputes arising out of 

my employment or termination from the Company or in 

any way related to any alleged wrongful acts on the part 

of the Company, its affiliates, directors, shareholders, 

agents, members, partners, officers or employees 

relating to my employment, including but not limited to 

claims of breach of contract, wrongful discharge, 

retaliatory discharge claims, tort claims, invasion of 

privacy, slander, defamation, and/or any statutory 
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claim including but not limited to discrimination or 

other violation under Title VII of the Federal Civil 

Rights Act, Age Discrimination in Employment Act, 

Americans with Disabilities Act, Whistle Blowers 

Protection Act, Bullard-Plawecki Employee Right to 

Know Act and the Michigan Elliot-Larsen Civil Rights 

Act shall be through the procedures and policies of the

American Arbitration Association; thereby waiving my 

right to adjudicate these claims in a judicial forum. I 

agree not to bring, and expressly waive my right to 

bring any action or claim under this Agreement as a 

member of any purported class or representative 

proceeding.

[(Emphasis added).]

The sixth through ninth provisions under "AUTHORIZATION AND 

UNDERSTANDING" include further conditions applicable to any such claim 

brought against the company:

6. I agree that any arbitration or judicial proceeding 

arising out of a dispute relative to my employment with 

the Company shall not be brought unless the same is 

commenced within One Hundred Eighty (180) days

following the incident giving rise to such dispute. My 

failure to commence such proceedings within [that] 

period shall result in the extinguishment of any rights I 

may have to prosecute such claims or actions. . . .

7. I agree that if I should bring any action or claim 

arising out of my employment against the Company in 

which the Company prevails, I will pay the Company 

any and all such costs incurred by the Company in 

defense of any such claim or action, including attorney 

fees, court costs, arbitration fees and all other costs 

associated with such action.
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. . . .

9. I acknowledge and agree that I have reviewed and 

entered into this Agreement knowingly and voluntarily

as a condition of employment and/or continued 

employment with the Company. This Agreement can 

only be changed or revoked by written agreement 

signed by both the Applicant and an authorized 

manager of the Company.

[(Emphasis added).]

Since plaintiff filled out and signed the employment application from his 

home through a third-party website, no representative of defendants was present 

to answer questions or explain any component of the application with plaintiff. 

Plaintiff did not retain an attorney or other representative to review the form 

with him. 

Plaintiff alleges he did not understand the arbitration clause. He contends 

he would not have signed it had he recognized, among other things, he was 

waiving his right to a jury trial, would have to split the costs of arbitrating with 

defendants, and would be forced to arbitrate in Michigan if he brought a claim. 

Plaintiff's Employment and Termination

Plaintiff's employment with the company turned out to be short-lived, 

lasting only ten days. Although he had applied for a truck-driving position, he 

ended up accepting a position as a van driver transporting other workers, as that 

was the only available position with the company at the time. 
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Plaintiff stated that he was aware of the dire state of the COVID-19 

pandemic in New Jersey and New York when he was to leave Texas to start 

working for defendants, but was desperate for income, and somewhat consoled 

by New Jersey's stringent mask mandates. 

Plaintiff alleges1 he was soon dismayed to find that few workers or clients 

he would transport in the company van adhered to the mask mandate. Plaintiff 

alleges that when he brought these concerns to his employer, nothing was done 

to enforce safety protocols among the workers or to ensure that a colleague who 

had exhibited symptoms while in close proximity to plaintiff and others at the 

company would be tested for COVID-19. Further, after discussing his concerns 

with colleagues, defendants allegedly scolded plaintiff for facilitating those

discussions. 

According to plaintiff, within a day or two after raising these health

concerns, he was effectively cut off from communication with the company, 

asked to return his van keys, and was terminated on April 15, 2020. When he 

asked for an explanation, plaintiff alleges he was told that it was against 

defendants' company policy to have employees discuss "non-work-related 

1

In their answer to the complaint, defendants deny most of these allegations. 
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issues" among each other, and to hold large group discussions about workrelated issues. 

Litigation Commences

On June 11, 2020, plaintiff filed a complaint and jury demand in the Law 

Division alleging defendants had violated the LAD and CEPA. Plaintiff served 

along with his complaint a first set of document requests, interrogatories, and 

discovery demands relating to punitive damages. Defendants, in turn, filed a 

motion to dismiss plaintiff's complaint for failure to state a claim pursuant to 

Rule 4:6-2(e). 

In response to their motion to dismiss, plaintiff was granted leave to file 

an amended complaint with the consent of defendants. Plaintiff's amended 

complaint included only two counts out of the original four: one for retaliation 

in violation of CEPA, the second for associational disability discrimination, 

disparate treatment, and unlawful termination under LAD. Plaintiff reiterated a 

demand for trial by jury. 

Defendants' answer to plaintiff's amended complaint, filed on August 21, 

2020, denied the majority of plaintiff's allegations. Defendants also echoed 

plaintiff's demand for a jury trial and asserted thirteen affirmative defenses, none 

of which mentioned the arbitration clause.
10 A-3062-20

On September 18, 2020, defendants produced a first set of documents in 

response to plaintiff's request, which were numerically Bates-stamped page by 

page. Notably, the documents included the employment application containing 

the arbitration clause, but defense counsel did not invoke it or specifically draw 

plaintiff's attention to it at that time.

On October 14, 2020, defendants provided answers to plaintiff's first set 

of interrogatories. Again, those answers, including a five-paragraph overarching "Preliminary Statement," did not refer to the arbitration clause.

In response to perceived deficiencies in defendants' discovery responses, 

the parties exchanged letters, and defendants turned over additional discovery. 

Plaintiff filed a motion for a protective order barring defendants from seeking 

discovery from his former employers. After oral argument, the trial court denied

that motion on December 18, 2020, and defendants duly requested plaintiff to 

supply his former employers' contact information. 

Further deficiency letters, discovery demands, and document productions

were exchanged between the time of the trial court's December 18, 2020 order 

and April 19, 2021, the date on which plaintiff submitted to a full-day 

deposition. Plaintiff, meanwhile, had noticed the depositions of two of the 
11 A-3062-20

named individual defendants, and counsel had scheduled them to take place after 

April 21.

As defense counsel represented to us, he had not personally realized until 

a few days before plaintiff's deposition that the company's employment 

application contained a mandatory arbitration clause.2 According to plaintiff's 

counsel, it was not until April 27, 2021—eight days after defense counsel had 

taken plaintiff's deposition and over ten months after defendants had been served 

with the complaint—that defendants' counsel mentioned to him the existence of 

the arbitration provision and of defendants' intent to enforce it. 

The next day, April 28, defendants filed a motion for leave to amend their 

affirmative defenses and compel arbitration. Plaintiff opposed the motion and 

cross-moved for attorneys' fees and costs incurred in defending the motion. 

The May 17, 2021 Motion Argument

On May 17, 2021, the trial court heard oral argument on defendants' 

motion to compel arbitration, and plaintiff's cross-motion for sanctions. Defense 

counsel argued the arbitration clause was clear, and that it "unmistakably" 

waived plaintiff's right to litigate his claims in a judicial forum. 

2 We accept counsel's representation and note our appreciation for his candor.
12 A-3062-20

Plaintiff's counsel, in turn, argued that the arbitration clause was both 

procedurally and substantively unconscionable. He argued the clause was 

"buried at the bottom of an employment application . . . where even [defendants' 

counsel] wasn't able to notice it[,]" and that "[n]o reasonable person would 

assume that they were waiving the right to a jury trial by signing this document." 

Among other things, plaintiff's counsel asserted the clause was not labeled 

as an arbitration clause, that there was a lack of "conspicuous language" to that 

effect, "unequal bargaining power" between the parties, that plaintiff lacked any 

"meaningful choice or opportunity to review it with counsel, or negotiate[,]" that 

arbitration would be compelled in Michigan, and that the clause includes an 

"unfair and one sided" cost allocation provision, providing that claimants must 

split the cost of arbitration with the employer-defendants. Plaintiff's counsel

further argued the clause "doesn't explain exactly what arbitration is or how it's 

different from proceeding in a court of law."

Apart from those arguments about the provision itself, plaintiff's counsel

argued defendants had waived their ability to enforce the arbitration clause after 

litigating the case for almost a year without raising it. In support of this point, 

plaintiff's counsel cited to Cole, 215 N.J. at 264, among other cases.
13 A-3062-20

Plaintiff's counsel detailed the multiple steps that had been taken over the 

"10 months and 16 days" of litigation between the parties before defendants 

sought to invoke the arbitration provision as an affirmative defense. Namely, 

plaintiff's counsel pointed to settlement discussions that had started taking place 

early on after the filing of plaintiff's claim on June 11, 2020; his consent to 

defendants' motion to have counsel appear pro hac vice; defendants' motion to 

dismiss filed in July 2020; plaintiff's opposition and cross-motion for relief to 

file an amended complaint; defendants' answer, including thirteen affirmative 

defenses; document production by defendants in September 2020; defendants' 

responses to interrogatories in October 2020; multiple exchanges of deficiency 

letters from November 2020 through January 2021; oral argument appearances 

before the trial court in December 2020; and lastly a full-day deposition of 

plaintiff on April 19, 2021, before defendants made their first mention of the 

arbitration clause over a week later on April 27, 2021. 

Plaintiff's counsel argued the timing of defendants' motion to compel 

arbitration, following plaintiff's lengthy deposition and twenty days before two 

of the individual defendants were scheduled to be deposed, is indicative of an 

unfair "litigation strategy" and was prejudicial to him. Defendants' counsel, 
14 A-3062-20

meanwhile, did not present to the trial court a specific reason for their delay in 

raising the arbitration provision.

Lastly, the parties briefly addressed N.J.S.A. 10:5-12.7, a state law 

declaring any employment contract provision that "waives any substantive or 

procedural right or remedy relating to a claim of discrimination, retaliation, or 

harassment against public policy and unenforceable." N.J.S.A. 10:5-12.7. 

Plaintiff's counsel argued this provision, enacted in 2019, precludes dismissal of 

his lawsuit under the LAD and CEPA. Defendants' counsel countered this 

statutory provision is preempted by the Federal Arbitration Act ("FAA"), 9 

U.S.C. §§ 1 to 16, as construed by the United States Supreme Court.

The Trial Court's June 15, 2021 Opinion

Following the motion argument, the trial court issued an order and tenpage written opinion on June 15, 2021, granting defendants leave to file 

amended affirmative defenses, dismissing plaintiff's amended complaint, and 

compelling arbitration. 

With respect to defendants' motion to amend their affirmative defenses to 

include enforcement of the arbitration clause, the court noted that motions for 

leave to amend generally are to be granted liberally, notwithstanding the merits 

of any such amendment. See Prime Accounting Dep't v. Twp. of Carney's Point, 
15 A-3062-20

154 N.J. 437, 456 (1998). The court applied that general principle in granting 

leave to defendants.

Next, the trial court found defendants' arbitration provision to be 

enforceable. As a threshold matter, the court concluded the FAA preempts 

N.J.S.A. 10:5-12.7. In this regard, the court cited AT&T Mobility, LLC v. 

Concepcion, 563 U.S. 33 (2011), for the general proposition, as the court 

summarized it, that the "FAA was enacted to ensure the enforcement of private 

arbitration agreements." The trial court also cited an unpublished New Jersey 

federal district court opinion holding that the FAA preempts this specific 2019 

provision of the LAD.3

As to the substance of the arbitration provision itself, the court agreed 

with defendants that the plain language of the agreement placed plaintiff 

sufficiently on notice that he was waiving substantive rights at issue in this case. 

The court found the provision "clearly and unambiguously sets forth language 

for the waiver of a jury trial and broad distinction between a jury trial and 

arbitration[,]" and explicitly encompasses the substantive rights plaintiff seeks 

to vindicate The court also pointed out that plaintiff acknowledged, by his 

3

In compliance with Rule 1:36-3, we do not present the citation here.
16 A-3062-20

signature on the electronic job application, that the arbitration provision is a 

condition of employment and that he understood the terms of that provision. 

Additionally, the court ruled the arbitration clause was neither

substantively nor procedurally unconscionable. In this regard, the court found 

that plaintiff had "ample opportunity" to review the terms of the provision when 

he completed the job application. The court perceived "no 'gross disparity'" 

between the parties' bargaining positions, no indication that plaintiff could not 

read or understand the provision, and no otherwise deceptive or contriving 

elements within the online application itself. 

Although the bulk of its written opinion addressed these points, the trial 

court also briefly discussed and rejected plaintiff's argument under Cole that 

defendants had waived their chance to enforce the arbitration provision by not 

taking action sooner. The court's full discussion of that issue was as follows:

Unlike Cole, defendants' application is not made on the 

eve of trial. Discovery is ongoing since the parties 

engaged in written discovery between September 18, 

2020 and January 14, 2021, and depositions 

commen[c]ed on March 4, 2021. There has been 

minimal motion practice. No trial date has been 

scheduled. Finally, there is no prejudice to the parties.

Lastly, plaintiff's cross-motion for attorney's fees and costs was 

summarily denied, in light of the trial court's adverse findings.
17 A-3062-20

II.

This appeal followed. Although plaintiff offers a host of arguments for 

why this arbitration provision should not be enforced, and defendants present 

forceful counterarguments, we need not address them in this opinion. That is 

because we conclude that, under the circumstances presented, the Cole factors 

strongly weigh against permitting defendants' belated invocation of their

company's boilerplate arbitration provision.

We review the trial court's application of Cole de novo. As the Court 

stated in Cole, "whether a party waived its arbitration right is a legal 

determination subject to de novo review." Cole, 215 N.J. at 275 (citing 

Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) 

and In re S&R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d 

Cir. 1998)). That said, any "factual findings underlying the waiver 

determination are entitled to deference and are subject to review for clear error." 

Cole, 215 N.J. at 275 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of 

Am., 65 N.J. 474, 483-84 (1974)). Here, the trial court did not take any 

testimony during the motion proceeding or make any witness credibility 

findings. Hence, the trial court's observations about facts pertinent to the waiver 
18 A-3062-20

analysis are based upon the very same written record that we just as readily can 

review. No special deference to the trial court is therefore warranted.

As a matter of law, it is well established that a waiver is a party's voluntary 

relinquishment of a known right. Cole, 215 N.J. at 276 (citing Knorr v. Smeal, 

178 N.J. 169, 177 (2003)). It is equally well established that parties may 

impliedly waive their rights through both actions and inaction. Id. at 276-77 ("a 

party need not expressly state its intent to waive a right; instead, waiver can 

occur implicitly if 'the circumstances clearly show that the party knew of the 

right and then abandoned it, either by design or indifference.'") (Quoting Knorr, 

178 N.J. at 177).

Thus, a "fact-sensitive analysis" may, depending on the circumstances, 

reveal that one or both parties have "waive[d] their right to arbitrate[.]" Cole, 

215 N.J. at 276 (citing Wein v. Morris, 194 N.J. 364, 376 (2008)). An agreement 

to arbitrate a dispute can be overcome where there is "clear and convincing 

evidence that the party asserting [arbitration] chose to [litigate] in a different 

forum[,]" although such waiver is "never presumed." Ibid. (Internal citation 

omitted).

The Court instructed in Cole that when analyzing whether a party has 

waived its right to arbitration, a court "must focus on the totality of the 
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circumstances." Id. at 280. Courts should consider, among other things, the 

following seven enumerated factors:

(1) the delay in making the arbitration request; (2) the 

filing of any motions, particularly dispositive motions, 

and their outcomes; (3) whether the delay in seeking 

arbitration was part of the party's litigation strategy; (4) 

the extent of discovery conducted; (5) whether the party 

raised the arbitration issue in its pleadings, particularly 

as an affirmative defense, or provided other notification 

of its intent to seek arbitration; (6) the proximity of the 

date on which the party sought arbitration to the date of 

trial; and (7) the resulting prejudice suffered by the 

other party, if any.

[Id. at 280-81.]

This multi-factor analysis is fact-sensitive and reviewed de novo on appeal. Id.

at 275, 280. No one factor is dispositive. Id. at 281.

The trial court's opinion did not methodically address each of these seven 

Cole factors, but it did comment upon several of them within the passage we 

have quoted above. With all due respect to the trial court, we conclude the 

factors heavily weigh in favor of plaintiff in this matter. Before addressing those 

factors one-by-one, we make some overarching observations.

The FAA and the laws of New Jersey generally recognize that arbitration 

is a viable mechanism of dispute resolution where it has been mutually chosen 

by the parties as an alternative to litigation in the courts. See, e.g., AT&T 
20 A-3062-20

Mobility, LLC, 563 U.S. at 33; Martindale v. Sandvik, Inc., 173 N.J. 76 (2002); 

Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 

131 (2001). Arbitration is intended to be a faster and cheaper process for the 

parties than traditional adjudication. Alexander v. Gardner-Denver Co., 415 

U.S. 36, 58 (1974); see also Kernahan v. Home Warranty Adm'r of Fla., Inc., 

236 N.J. 301, 324 (2019). Discovery in arbitration can be streamlined, and the 

grounds for setting aside an arbitration award are very narrow. See, e.g., New 

Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -32; Borough of East 

Rutherford v. East Rutherford PBA Local 275, 213 N.J. 190, 201-02 (2013)

("Consistent with the salutary purposes that arbitration as a dispute-resolution 

mechanism promotes, courts grant arbitration awards considerable deference."). 

These advantages of speed, efficiency, and cost-saving can be squandered, 

however, if arbitration is not invoked and commenced with reasonable 

promptness. See Cole, 215 N.J. at 282-83 (finding that a party's conduct 

reflective of "a commitment to try the case" can "undermine the fundamental 

principles underlying arbitration.") It is a waste of the public's scarce resources 

if judges and court staff devote hours of time and effort to a case that should 

have been in arbitration from the outset. Other pending cases that truly belong 
21 A-3062-20

in court should be given attention and priority. Duplication of effort in two 

forums should be avoided where possible.

In addition, the process to channel a dispute into arbitration should be 

administered fairly. A litigant should not be permitted to reap the benefits of 

the discovery or adjudicative process in court, and then leave the opposing party 

without a fair equivalent when a case is transferred to arbitration.

The Cole factors essentially subsume these public policy values. In 

situations where a litigant that was or should have been aware it had a right to 

arbitrate a matter waits unreasonably to invoke that right, our courts are not to 

automatically grant that litigant's belated motion to compel arbitration. Instead, 

a factor-by-factor scrutiny under Cole guides the decision. We now turn to those 

factors.

Factor No. 1: Defendants' Delay. As we have already noted, defendants 

waited over ten months to invoke their company's arbitration provision. No 

tenable justification for that delay has been presented. The company and its 

representatives had plaintiff's employment application containing the arbitration 

provision accessible within their own files. The company at least had 

constructive notice of it from the outset. It was the company's own self-created 

form document and was not unique to this plaintiff. 
22 A-3062-20

It is ironic that defendants have argued, in an effort to legitimize the 

arbitration provision, that the provision is prominent and clear on its face, and 

that it should have been noticed by the plaintiff himself. The same ability-tonotice should reciprocally apply to the company, which, after all, drafted and 

inserted the provision into the job application. Moreover, when defendants 

produced the employment application as a document in discovery pursuant to 

Rule 4:18-1 only about three months into the case, they and their counsel should 

have read its contents. It appears the provision was simply overlooked, for no 

good reason. As a matter of guidance, we should not endorse or lightly excuse 

such inattentiveness.4

The trial court distinguished Cole factually because the arbitration 

provision in that case was not invoked until the brink of trial. But a waiver has 

been found to have occurred within a comparable time frame. See, e.g., 

Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 925-26 (3rd Cir. 1992) 

(holding that an eleven-month delay in demanding arbitration coupled with 

participation in discovery and filing motions was sufficient to find a waiver). 

4 Again, we do not individually single out defendant's out-of-state attorney of 

record, who frankly acknowledged to us that he did not notice the arbitration 

provision until he was preparing for plaintiff's deposition. Presumably the 

provision also could have spotted by local counsel, a paralegal, or company 

officials involved in the case.
23 A-3062-20

The ten months that elapsed here was a substantial period of time, not a 

brief interval. Cf. Spaeth v. Srinivasan, 403 N.J. Super. 508, 516 (2008) (finding 

no waiver where "[d]efendant, who appeared pro se throughout, asserted her 

right to arbitration only six months after plaintiff filed his ... complaint and well 

before any meaningful exchange of discovery"); Hudik-Ross, Inc. v. 1530 

Palisade Ave. Corp., 131 N.J. Super. 159, 167 (App. Div. 1974) (finding no 

waiver where arbitration was demanded "four months after the institution of 

plaintiff's lawsuit" and the clause was included among defendant's affirmative 

defenses).

For these many reasons, the ten-month delay here weighs in plaintiff's 

favor.

Factor No. 2: Motion Practice. This second factor also tips in favor of 

plaintiff, although not as heavily as the first factor. To be sure, there were no 

dispositive motions decided by the trial court. However, the parties did move 

for and obtained rulings on defendant's initial motion to dismiss under Rule 4:6-

2(e), and on plaintiff's motion for a protective order concerning his past 

employers. Resources were expended and time was devoted to these motions, 

not extensively but also not inconsequentially.
24 A-3062-20

Factor No. 3: Litigation Strategy. We do not presume to know exactly 

why defendants handled this file the way they did, and why they failed to advise 

plaintiff's counsel much sooner about their right and desire to compel arbitration. 

It makes no sense why defendants would demand a trial by jury if they knew 

that the lawsuit eventually would be removed from the court's docket. 

It is also puzzling why defendants did not immediately raise the provision 

with plaintiff's attorney once they noticed it but instead said nothing about it 

until after they had extracted his deposition testimony. The timing resulted in 

an uneven situation in which defendants got to complete a key deposition of the 

opposing party, but plaintiff did not get to depose the two named defendants 

with the benefit of the Rules of Court and the possible oversight of a Superior 

Court judge if intervention were needed. We recognize that the defense is 

apparently willing to cooperate in the arbitration to reschedule those two 

depositions, but the imbalance is troubling. Whether by design or not, the 

sequence of events was not to plaintiff's strategic advantage.

Factor No. 4: The Extent of Discovery. This factor weighs in favor of 

plaintiff. The parties exchanged considerable documents, traded interrogatories 

and responses, and completed a critical deposition. Although more discovery is 

to be accomplished, a significant amount has already been done.
25 A-3062-20

Factor No. 5: Not Raised in the Pleadings or Otherwise Noticed. As we 

have already noted, the pleadings filed by defendants, including thirteen 

affirmative defenses, gave no hint the company would be invoking arbitration. 

Defendant's jury demand signaled an opposite expectation to have the matter 

litigated in court. This factor weighs for plaintiff.

Factor No. 6: Proximity to the Date of Trial. No trial date had yet to be 

assigned to this Track III case. This factor weighs for defendants.

Factor No. 7: Resulting Prejudice Suffered By Plaintiff. This factor 

weighs in plaintiff's favor, if not overwhelmingly. We are mindful that the 

discovery already amassed during the court litigation most likely can be used as 

potential evidence in the arbitration. However, plaintiff will lose the benefit of

the Rules of Court, including the presumptive right to take depositions. By 

comparison, Rule 9 of the Employment Arbitration Rules of the American 

Arbitration Association contains no such right but instead only permits 

depositions if the arbitrator deems them "necessary." Am. Arb. Ass'n, 

Employment Arbitration Rules and Mediation Procedures r. 9 (rev. 2017); see 

also N.J.S.A. 2A:23B-17(c) ("An arbitrator may permit such discovery as the 

arbitrator decides is appropriate in the circumstances, taking into account the 

needs of the parties to the arbitration proceeding and other affected persons and 
26 A-3062-20

the desirability of making the proceeding fair, expeditious, and cost effective."). 

Further, plaintiff in arbitration loses the oversight of a Superior Court judge and 

access to this court and the Supreme Court on any matters of appellate review

that may arise. 

Taking these considerations as a whole, we conclude from our de novo 

review that defendants, by their apparent inattention and delay, have waived the 

ability to compel arbitration in this particular case. If arbitration is designed to 

be a faster and more efficient process, the delay in this case of nearly a year 

before the company took action to compel it represents a poor counter-example. 

We ought not encourage or endorse such lateness where it could have been easily 

avoided by the company or its advocates more carefully checking its own files 

and forms.

Reversed and remanded to the trial court, and the matter restored to the 

Law Division docket. The trial court shall convene a case management 

conference within thirty days to plan the completion of the pretrial process. No 

fees or costs are warranted.