SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0024-22 

RIVERSIDE GENETICS LLC 

and ROSA FRISA-RAMIREZ, 

 Plaintiffs-Appellants, 

v.

BOROUGH OF SOUTH TOMS 

RIVER, 

 Defendant-Respondent. 

__________________________

Submitted May 14, 2024 – Decided August 19, 2024 

Before Judges Rose and Smith. 

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-1013-22. 

Robert L. Tarver, Jr., attorney for appellants. 

Dasti & Staiger, PC, attorneys for respondent 

(Christopher J. Dasti, of counsel and on the brief; 

Christopher A. Khatami, on the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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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Plaintiffs, Riverside Genetic, LLC and Rosa Frisa-Ramirez, appeal the 

trial court's order dismissing their order to show cause and verified complaint 

against the Borough of South Toms River (Borough). On appeal, plaintiffs 

contend that the trial court erred by declining to enlarge the time for filing their 

complaint under Rule 4:69-6(c), and, in the alternative, dismissing the complaint 

for failure to join certain indispensable parties as defendants pursuant to Rule 

4:28-1. We disagree with the trial court's finding that the complaint was 

untimely, however we affirm because we agree with the trial court that plaintiffs 

failed to join indispensable parties. 

 On February 15, 2022 the Borough issued a request for proposals (RFP) 

to prospective applicants for what it described as a "Local Endorsement for 

Cannabis Licensing." The RFP was a twenty-two-page document detailing the 

terms and conditions to be met by responsive applicants seeking the Borough's 

endorsement. 

Plaintiffs sought an endorsement so that they could apply for a State of 

New Jersey cannabis retail license to do business in the Borough. They filed a 

timely application with the Borough on March 10. As required by the RFP, 

plaintiffs paid a non-refundable $10,000 deposit when they submitted their 

application. On March 14, the Borough simultaneously adopted three 
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resolutions authorizing issuance of endorsement letters for three of Riverside's 

competitors: Social Leaf, LLC; Altitude Cannabis; and Shore Cannabis. All 

other applicants, including plaintiffs, were rejected. The Borough also adopted 

Ordinance 22-2 same day. The ordinance established the municipal 

endorsement process for cannabis retail business applicants—a process which 

the Borough initiated without the ordinance in place on February 15. 

At plaintiffs' request, the Borough granted two plaintiffs' representatives, 

Gregory Kennedy and Carlos Almanzar, an opportunity to view all submitted 

applications on March 17. On May 17, 2022, plaintiffs sued, filing an order to 

show cause with a verified complaint. Plaintiffs named the Borough as the sole 

defendant. 

In their thirty-five paragraph, one-count verified complaint, plaintiffs 

alleged a series of inconsistencies between the proposal criteria issued to 

interested applicants and the scoring criteria used to grade responsive applicants. 

These discrepancies included: a change in the scoring range used to evaluate 

applicants from a 100-point scale in the published RFP to a 200-point scale used 

by the municipal scoring committee; use of scoring criteria inappropriate for a 

Class 5 cannabis license; inconsistent minority hiring criteria; and noncompliance with N.J.S.A. 40A:11-42 concerning establishment of a minority, 
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women, or veteran business set-aside program. Plaintiffs also averred in 

paragraph thirty-four that "all necessary parties" were named in the complaint. 

As relief, the complaint sought: a declaration that all the three resolutions were 

void; an order compelling the Borough to comply with its own process as spelled 

out in its ordinance; and damages, including counsel fees. 

After argument, the trial court dismissed the complaint and issued its 

findings in an oral decision. Describing plaintiffs' objections as "fairly 

legitimate," the court stated: 

[T]here [are] really two problems with this application. 

One is that [it is] beyond the [forty-five] days for 

challenging this. The train has already left the station. 

The . . . three applicants were approved, [and they] are 

already going before the State to obtain their license[s]. 

They are not parties to this litigation and the court is 

therefore without authority because of the [forty-fiveday] filing rule to challenge the legislative action of a 

local agency and part of that is that [it is] a rule of 

repose because in situations like this, whether [it is] an 

approval of a land use decision or approval of a license, 

that the purpose of that is to allow the other participants 

in the process to rely upon that at some point in time, 

and then to make their investment and to move forward. 

Finding that plaintiffs failed to file their order to show cause and verified 

complaint under Rule 4:69 within forty-five days, and further finding that the 

three successful bidders were indispensable parties, the trial court denied 

plaintiffs' application for injunctive relief and dismissed the complaint. 
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We first consider plaintiffs' argument that the court misapplied Rule 4:69-

6. "Appellate review of the meaning of the New Jersey Court Rules is de novo." 

State v. Dickerson, 232 N.J. 2, 17 (2018). 

Rule 4:69-6(b)(3) provides: 

[n]o action in lieu of prerogative writs shall be 

commenced . . . to review a determination of a planning 

board . . . after [forty-five] days from publication of a 

notice once in the official newspaper of the 

municipality or a newspaper of general circulation in 

the municipality . . . . 

The trial court found plaintiffs filed their complaint outside the forty-fiveday time limit contained in the Rule. However, our review of the record reveals 

no facts establishing the date of publication for either Ordinance 22-2 or the 

Borough's three resolutions. Without those dates, the trial court could not 

accurately calculate a starting point for the forty-five-day clock. It follows that 

we cannot conclude the trial court's timeliness finding was proper. Accordingly, 

we need not consider plaintiffs' argument under interest of justice exception to 

the forty-five-day rule under Rule 4:69-6(c). See Borough of Princeton v. Bd. 

of Chosen Freeholders of Cnty. of Mercer, 169 N.J. 135, 152 (2001). 

We turn to plaintiffs' argument that the trial court further erred by 

dismissing the complaint with prejudice for failing to join Social Leaf, LLC, 

Altitude Cannabis, and Shore Cannabis. "Our review of the trial court's 
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dismissal order in this context is de novo." Flinn v. Amboy Nat'l Bank, 436 N.J. 

Super. 274, 287 (App. Div. 2014). We "apply a plenary standard of review from 

a trial court's decision to grant a motion to dismiss" and "[owe] no deference to 

the trial court's conclusions."1 Gonzalez v. State Apportionment Comm'n, 428 

N.J. Super. 333, 349 (App. Div. 2012) (quoting Rezem Fam. Assocs., LP v. 

Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011)). 

A dismissal under Rule 4:6-2(f) for "failure to join a party without whom 

the action cannot proceed" is governed by Rule 4:28-1(a), which states: 

[a] person who is subject to service of process shall be 

joined as a party to the action if (1) in the person's 

absence complete relief cannot be accorded among 

those already parties, or (2) the person claims an 

interest in the subject of the action and is so situated 

that the disposition of the action in the person's absence 

may either (i) as a practical matter impair or impede the 

person's ability to protect that interest or (ii) leave any 

of the persons already parties subject to a substantial 

risk of incurring double, multiple, or other inconsistent 

obligations by reason of the claimed interest. 

Whether a party is indispensable is fact sensitive. "As a general 

proposition, . . . a party is not truly indispensable unless he has an interest 

1

 While the Borough never moved to dismiss, the court dismissed the complaint 

on its own after making the timeliness and indispensable party findings. 

Because we review this matter after the trial court's dismissal of plaintiffs' 

complaint, the appropriate starting point in our analysis is R. 4:6-2(f). 
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inevitably involved in the subject matter before the court and a judgment cannot 

justly be made between the litigants without either adjudging or necessarily 

affecting the absentee's interests." Intern. Broth. of Electrical Workers Local 

400 v. Borough of Tinton Falls, 468 N.J. Super. 214, 225 (App. Div. 2021). 

Plaintiffs' claims include alleged discrepancies between the February 15 

RFP application criteria and the scoring criteria used by the Borough to evaluate 

responsive proposals. Any analysis of the discrepancies and their role in the

Borough's rejection of plaintiffs' proposal clearly has implications for the three 

successful respondents. See id. at 226. Those respondents had an interest in the 

subject of this action under Rule 4:28-1(a)(2). Additionally, the trial court's 

disposition of the action without respondents would undoubtedly have impeded 

their ability to protect those interests. See R. 4:28-1(a)(2)(i). Plaintiffs neither 

offered substantive argument to the trial court to support amendment of the 

complaint, nor made any merit-based argument to us for remand to permit an 

amendment to the complaint after more than two years. We conclude the trial 

court properly dismissed plaintiffs' complaint for failure to comply with Rule 

4:28-1(a). To the extent their complaint can be liberally construed to seek 

injunctive relief enjoining the Borough from taking further action to permit 

retail operations by Social Leaf, LLC, Altitude Cannabis, and Shore Cannabis, 
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that claim fails as well, because plaintiffs cannot show a reasonable probability 

of success on the merits. See Garden State Equality v. Dow, 216 N.J. 314, 320 

(2013). 

Affirmed.