NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3120-22 

MARMO AND SONS 

GENERAL CONTRACTING, LLC, 

 Plaintiff-Appellant, 

v.

BIAGI FARMS, LLC, 

 Defendant-Respondent. 

_______________________________

BIAGI FARMS, LLC, TAMMIE 

AND NICHOLAS BIAGI, 

 Third-Party PlaintiffsRespondents, 

v.

MARMO AND SONS GENERAL 

CONTRACTING, LLC, WILLIAM 

AND HEATHER MARMO, 

 Third-Party DefendantsAppellants. 

_______________________________

Argued April 15, 2024 – Decided May 24, 2024 

Before Judges Sabatino, Chase, and Vinci. 

APPROVED FOR PUBLICATION 

May 24, 2024 

APPELLATE DIVISION 
2 A-3120-22

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Docket No. L-1109-22.

Sam Maybruch argued the cause for appellants (Arbus, 

Maybruch & Goode, LLC, attorneys; Sam Maybruch, 

on the briefs).

Justin D. Santagata argued the cause for respondent

(Cooper Levenson, PA, attorneys; Justin D. Santagata, 

Samantha Edgell, and Katlin Trout, on the briefs).

The opinion of the court was delivered by 

SABATINO, P.J.A.D. 

This dispute involves whether a party to a contract waived its right to 

compel arbitration by its conduct in a lawsuit it initiated. 

Marmo & Sons General Contracting, LLC, and William and Heather 

Marmo (collectively "Marmo") appeal from the trial court's denial of their 

motion to compel arbitration of claims against Biagi Farms, LLC, and Tammie 

and Nicholas Biagi (collectively "Biagi") for nonpayment of residential 

construction services Marmo rendered to Biagi. 

Marmo asserts the trial court incorrectly ruled that Marmo waived its 

contractual right to arbitrate. Among other things indicative of such a waiver, 

the record shows that: (1) Marmo filed claims as a plaintiff in the Law Division 

beyond those necessary to assert a lien under the Construction Lien Law 

("CLL"), N.J.S.A. 2A:44A-1 to -38; (2) asserted in its Rule 4:5-1(b)(2) 
3 A-3120-22

certification accompanying its complaint that no arbitration was contemplated; 

and (3) waited to move to compel arbitration after receiving the benefit of 

significant discovery while failing to comply reciprocally with Biagi's discovery 

demands. 

Applying the multifactor test prescribed in Cole v. Jersey City Medical 

Center, 215 N.J. 265, 280-81 (2013), we conclude Marmo waived its right to 

compel arbitration for numerous reasons detailed in this opinion. In the course 

of doing so, however, we reject Biagi's contention that the United States 

Supreme Court's opinion in Morgan v. Sundance, Inc., 596 U.S. 411, 417-19

(2022), eradicates the Cole factor that considers whether the party opposing 

arbitration was prejudiced by the movant's delay. Prejudice remains one of the 

pertinent, but not individually dispositive, Cole factors after Morgan. 

Nevertheless, that particular factor is not controlling in this case, given the 

totality of the circumstances that otherwise, on balance, further establish waiver. 

I.

In May 2021, the parties executed a written contract in which Marmo 

agreed to build a house for Biagi in New Jersey for $907,679. The six-page 

agreement, which was drafted by Marmo, contains a provision in which the 

parties agreed that any disputes arising out of the contract are to be referred to 
4 A-3120-22

binding arbitration administered by the American Arbitration Association 

("AAA").

Marmo partially built the house before a dispute arose between the parties. 

Biagi terminated the contract, refusing to pay Marmo anything further. 

In August 2022, Marmo served Biagi with an arbitration demand and a 

notice of unpaid balance under the CLL to assert a lien for $225,947.91 Marmo 

claimed was due under the contract. Biagi opposed the lien. Pursuant to the 

CLL, the residential lien dispute was presented to an arbitrator. N.J.S.A. 

2A:44A-6(a)(2). After a one-day hearing, the CLL arbitrator1 issued a decision 

on October 3, 2022, authorizing the entry of a lien in Marmo's favor for a 

reduced amount of $132,887. The lien reflected downward adjustments for 

unsigned change orders ($54,949), claimed extra work for which there are no 

signed change orders ($10,495), and "a set-off for certain remedial work claims" 

($27,616). 

Shortly after the lien arbitration concluded, Marmo filed a complaint on 

October 20, 2022 against Biagi in the Law Division alleging: (1) breach of 

1

 We use the term "CLL arbitrator" to distinguish the pre-lawsuit arbitrator of 

the lien dispute from the arbitrator of plenary issues who Marmo sought to have 

appointed after it had been litigating its lawsuit for several months in the Law 

Division. 
5 A-3120-22

contract, (2) unjust enrichment, (3) enforcement of a residential construction 

lien under the CLL, and (4) reasonable value of services. 

Notably, Marmo's complaint was accompanied by the requisite Rule 4:5-

1(b)(2) certification disclosing whether other related proceedings were pending 

or contemplated.2 Marmo's certification attested that the matter is "not the 

subject of any other action pending in any other court or of a pending arbitration 

proceeding, to the best of our knowledge and belief. Also, to the best of our 

belief, no other action or arbitration proceeding is contemplated." (emphasis 

added). Although it is hedged by the insertion of the "best of our knowledge 

and belief" and "best of our belief" language, not appearing in Rule 4:5-1(b)(2), 

the certification otherwise tracks the Rule. 

On January 6, 2023, Biagi filed an answer denying the complaint's 

allegations and asserting affirmative defenses of fraud, nonperformance, and 

entitlement to a set-off greater than the lien. The answer further asserts 

2

 Rule 4:5-1(b)(2) provides: "Each party shall include with the first pleading a 

certification as to whether the matter in controversy is the subject of any other 

action pending in any court or of a pending arbitration proceeding, or whether 

any other action or arbitration proceeding is contemplated; and, if so, the 

certification shall identify such actions and all parties thereto." Further, "[e]ach 

party shall have a continuing obligation during the course of the litigation to file 

and serve on all other parties and with the court an amended certification if there 

is a change in the facts stated in the original certification." 
6 A-3120-22

counterclaims against Marmo for: (1) breach of contract, (2) breach of the 

covenant of good faith and fair dealing, (3) negligence, (4) consumer fraud under 

N.J.S.A. 56:8-1, (5) racketeering under N.J.S.A. 2C:41-4, (6) tortious 

interference with contract, and (7) restraint of trade under N.J.S.A. 56:9-12. 

Biagi also pled a third-party complaint that included claims against the Marmos 

individually. Biagi demanded a jury trial. 

Biagi's pleadings were accompanied by its own Rule 4:5-1(b)(2) 

certification, stating the matter is "not presently the subject of any . . . pending 

arbitration or administrative proceeding." The certification did not address 

whether any arbitration was contemplated. 

Marmo filed an answer denying Biagi's counterclaims and third-party 

claims and asserting various affirmative defenses. Again, Marmo's pleadings 

failed to state that the disputes should be addressed in arbitration rather than in 

court. 

The case then proceeded through what the trial court characterized as 

"significant discovery." The court noted that when Marmo answered the 

counterclaim and third-party complaint, it simultaneously served Biagi with 100 

written discovery demands. When Biagi did not timely respond, Marmo 

threatened to file a motion to compel discovery. Two weeks later, Biagi 
7 A-3120-22

produced to Marmo "over 800 pages of documents and several gigabytes of ediscovery that required the use of an outside vendor to complete." Biagi also 

answered Marmo's interrogatories and produced additional e-discovery. In 

addition, the parties each received discovery produced through subpoenas 

served by Biagi upon the project's four subcontractors. Marmo also participated 

"without prejudice" in the scheduling of depositions, which, as it turned out, did 

not transpire before Marmo's motion to compel arbitration. 

Meanwhile, Marmo did not comply with Biagi's discovery demands. It 

obtained an extension of time to comply, but, as the trial court found, "that date 

came and Marmo produced no discovery." "As a consequence," the court found, 

"Marmo has received and gained the benefit of [Biagi's] extensive discovery 

production but has withheld its own discovery responses." 

On April 14, 2023—about six months after it filed its complaint—Marmo 

moved to stay the Law Division proceedings and to compel arbitration. After 

hearing oral argument, the trial court denied the motion to compel arbitration in 

a written decision. 

For reasons we will discuss in depth in Part II, the trial court concluded 

Marmo "waived its right to transfer the case to arbitration and therefore denies 

the motion." 
8 A-3120-22

This interlocutory appeal by Marmo ensued. 

II. 

As federal and New Jersey case law implementing the Federal Arbitration 

Act ("FAA") have recognized, the voluntary arbitration of civil disputes by 

mutual agreement is generally favored, subject to certain exceptions. See Epic 

Sys. Corp. v. Lewis, 584 U.S. 497, 505 (2018); Atalese v. U.S. Legal Servs. 

Grp., L.P., 219 N.J. 430, 440 (2014). One of those exceptions applies when a 

party to a contractual arbitration provision has waived the right to compel 

arbitration, by its actions or inactions. Cole, 215 N.J. at 276-77.

In its 2013 opinion in Cole, 215 N.J. at 281-83, the New Jersey Supreme 

Court announced a multifactor "totality of the circumstances" test for evaluating 

whether a party has waived its contractual right to arbitration. Those factors 

are: 

(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. 
9 A-3120-22

[Id. at 280-81.] 

Cole made clear that "[n]o one factor is dispositive." Id. at 281.

Applying those newly announced factors, the Court concluded the 

arbitration movant in Cole "engaged in litigation conduct that was inconsistent 

with its right to arbitrate the dispute with its former employee." Ibid. Among 

other things, the movant had failed to assert arbitration as a defense in its 

pleadings, participated in discovery during a pretrial period spanning over 

twenty-one months, and had filed a partially successful dispositive motion. Id.

at 281-82.

Nearly a decade after Cole was decided, the United States Supreme Court 

in 2022 addressed the standards for arbitration waiver in Morgan, 596 U.S. at 

211. Morgan invalidated Eighth Circuit precedent that had "condition[ed] a 

waiver of the right to arbitrate on a showing of prejudice." 596 U.S. at 417. 

In Morgan, an hourly employee of a Taco Bell franchise owned by 

defendant Sundance filed a nationwide collective action asserting Sundance 

violated the Fair Labor Standards Act. 596 U.S. at 413-15. Sundance "initially 

defended itself against Morgan's suit as if no arbitration agreement existed" by 

moving to dismiss the suit as duplicative of a previous collective action by Taco 
10 A-3120-22

Bell employees. Id. at 414. Sundance answered the complaint with fourteen 

affirmative defenses, none of which mentioned arbitration. Ibid. 

After participating in unsuccessful mediation and in scheduling 

conferences with the court, Sundance moved to compel arbitration under the 

FAA, nearly eight months after the filing of the complaint. Id. at 414-15. The 

district court denied the motion to compel. Ibid. In doing so, the district court 

applied Eighth Circuit precedent requiring a party alleging waiver to show 

resulting prejudice. Ibid. The district court concluded that Morgan had shown 

such prejudice. Ibid. Applying the same legal test, a split panel of the Eighth 

Circuit reversed. Ibid. The majority ruled that Morgan had not established 

prejudice, noting the parties had not yet engaged in formal discovery, nor 

contested any matters going to the merits of the case. Ibid. The dissenting 

circuit judge disagreed, noting that Morgan had wasted time and money in 

opposing Sundance's dismissal motion and in a fruitless mediation. Id. at 415-

16. The dissenter also expressed doubts about the propriety of the prejudice 

requirement. 

The Supreme Court granted certiorari in Morgan to resolve a conflict 

among the circuit courts about the propriety of a prejudice requirement. Id. at 
11 A-3120-22

416. Nine circuits, including the Eighth, had imposed such a requirement, and 

two circuits eschewed such a rule. Ibid. 

The Court in Morgan adopted the circuits' minority position, holding that 

it was incompatible with the policies of the FAA to impose an absolute 

requirement of prejudice in establishing waiver of a right to arbitration. Id. at 

419. Writing for a unanimous Court, Justice Kagan cautioned against devising 

"arbitration-specific procedural rules" so as "to tilt the playing field in favor of

(or against) arbitration." Ibid. Because the Eighth Circuit's prejudice rule was 

such an arbitration-specific precondition of waiver, the Court disavowed it. 

Ibid. The Court noted that "[o]utside the arbitration context, a federal court 

assessing waiver does not generally ask about prejudice." Id. at 417. 

The Court accordingly ruled in Morgan the circuit "was wrong to 

condition a waiver of the right to arbitrate on a showing of prejudice." Ibid. It 

remanded the case for an analysis of whether Sundance "knowingly 

relinquish[ed] the right to arbitrate by acting inconsistent with that right." Id. at 

419.

Here, the parties cited Cole and Morgan in their arguments to the trial 

court. Marmo argued the Cole factors weighed against a finding of waiver, and 

noted that, among other things, Biagi was not prejudiced by the six-month delay 
12 A-3120-22

in Marmo's filing of the dismissal motion. Biagi, meanwhile, asserted that 

Morgan renders prejudice irrelevant to the waiver analysis, and that the 

remaining Cole factors here weigh in favor of waiver. In this regard, Biagi has 

relied on several recent circuit court opinions applying Morgan. See White v. 

Samsung Elecs. Am., Inc., 61 F.4th 334, 339 (3d Cir. 2023) (holding that 

Morgan disallows under the FAA "tests that placed prejudice to the party not 

seeking arbitration as the focus of the waiver inquiry"); Armstrong v. Michaels 

Stores, Inc., 59 F.4th 1011, 1015 (9th Cir. 2023) (construing Morgan to 

"abrogate[] . . . precedents to the extent they required the party opposing 

arbitration to demonstrate prejudice"). 

The trial court expressed ambivalence in its written decision. Initially, it 

highlighted that Marmo had chosen to file a complaint in the Law Division with

broader contractual, quasi-contractual, and other claims that went beyond those 

necessary to enforce the construction lien. The court also underscored that 

"Marmo through its counsel certified [in its Rule 4:5-1(b)(2) statement] that 'no 

other action or arbitration proceeding is contemplated.'" The court observed, 

"[i]t is difficult to read that [certification] as other than a voluntary and 

intentional relinquishment of a known right. What else does that mean than 'we 

do not plan to go through arbitration?'"
13 A-3120-22

The trial court punctuated these initial observations with the following 

discussion: 

Marmo had full knowledge of the right and obligation 

to proceed through arbitration, but chose not to take that 

route, utilizing the court instead. To this court that 

action shows Marmo knew of the right and then 

abandoned it. Then in answer to defendants' 

counterclaim, no reference or affirmative defense is 

made as regards the contractual right to arbitration in 

an effort to enliven that right. Instead, plaintiff takes 

the opportunity to take discovery. Then through the 

benefit of discovery, plaintiff gained substantial 

materials in answer to its document request and 

interrogatories. But then, at least as last known to the 

court, did not reciprocate by responding to the 

defendant's inquiries. All of the elements of waiver are 

met. 

[(Emphasis added).] 

Despite those observations, the trial court noted that the amount of time 

that had elapsed since the complaint was filed was not lengthy: 

This is not an aged case by any means, nor anywhere

approaching the eve of trial. There have been no 

motions filed in the case other than the motion to 

transfer, and while there have been lively efforts at 

discovery it would appear that process is closer to the 

beginning than at the end. There has been some delay 

in making the arbitration request, but not inordinate 

delay, the request having been made within six months 

from the filing of the complaint. Under Cole, those 

factors would likely favor transferring the claims to the 

contractually agreed arbitration. 
14 A-3120-22

[(Emphasis added).] 

 The court then addressed the question of prejudice. It found that "the real 

prejudice to the defendant is not having the benefit of the court system and the 

opportunity to put the case before a jury if the matter is transferred to 

arbitration." But even if no other prejudice is demonstrated, the court deemed 

the lack of such additional prejudice inessential to a finding of waiver under the 

Supreme Court's opinion in Morgan. The court construed Morgan to signify that 

"resulting prejudice to the other party [here, Biagi] is not a consideration since 

the elements of waiver look to the waiving party, and not the defendant in this 

case." 

Having analyzed these various considerations, the court concluded as 

follows: 

While the analysis under Cole would appear more 

favorable to the plaintiff's position, examining the 

application using the elements of waiver as directed by 

the U.S. Supreme Court in Morgan leads this court to 

the conclusion that plaintiff waived their right 

embodied in the Construction Contract to litigate the 

various claims enumerated in the complaint and 

counterclaim in arbitration. It is difficult for this court 

to see how the favorable factors arrived at under Cole 

would overcome plaintiff's own act in bringing the 

claim in court knowing that he had [a] right to proceed 

per the contract through arbitration and then certified 

as part of the court filing that no other arbitration 

proceeding is contemplated. The court finds that 
15 A-3120-22

plaintiff has waived its right to transfer the case to 

arbitration and therefore denies the motion. 

[(Emphasis added).] 

Marmo appealed the trial court's ruling. It contends the trial court should 

have adhered to its tentative observation that the Cole factors weighed overall 

against waiver, and that the court was unduly swayed by Morgan in its ultimate 

assessment of the circumstances. Biagi counters that the trial court's ultimate 

conclusion was correct, if not all of its reasoning. Biagi asserts that Morgan 

forbids any consideration of prejudice and that, despite the trial court's 

observation, the other Cole factors actually weigh in favor of waiver. 

III. 

We review the trial court's disposition of the legal issue of waiver de novo. 

Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). Having done so, with the benefit 

of helpful post-argument supplemental briefs submitted by the parties at our 

request, we affirm the order denying arbitration, albeit for reasons somewhat 

different than those expressed by the trial court. 

A.

As a threshold matter, we construe Morgan to disallow consideration of 

prejudice only if that is used by a court as a necessary element for waiver in the 

arbitration context. 
16 A-3120-22

Our New Jersey case law generally does not require prejudice to prove 

waiver. Waiver is defined as "the voluntary and intentional relinquishment of a 

known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003). Waiver may be 

inferred from conduct, in addition to explicit declarations. Ibid. In Shebar v. 

Sanyo Business Systems Corp., 111 N.J. 276, 291 (1988), the Supreme Court 

described the concept of waiver as follows: 

Waiver, under New Jersey law, involves the intentional 

relinquishment of a known right, and thus it must be 

shown that the party charged with the waiver knew of 

[that party's] legal rights and deliberately intended to 

relinquish them. . . . [W]aiver implies an election by the 

party to dispense with something of value, or to forego 

some advantage which [one] might at [one's] option 

have demanded and insisted on. Questions of waiver, 

therefore, are usually questions of intent, which are 

factual determinations that should not be made on a

motion for summary judgment. 

[Ibid. (emphasis added) (quotations omitted).] 

The definition of waiver therefore focuses predominantly on the intent of 

the waiving party. Ibid. This accords with Morgan, which similarly observed 

that "[t]o decide whether a waiver has occurred, the court focuses on the actions 

of the person who held the right; the court seldom considers the effects of those 

actions on the opposing party." 596 U.S. at 417. 
17 A-3120-22

The Supreme Court's controlling opinion in Cole, however, does not 

mandate a showing of prejudice by the party opposing arbitration. Instead, 

prejudice is listed by the Court as only one of seven factors for trial courts to 

consider. 215 N.J. at 280-81. As we noted above, Cole expressly instructed that 

"[n]o one factor is dispositive." Id. at 281. 

The Court recognized in Cole that some courts in other jurisdictions had 

"require[d] a party to prove prejudice as an element of waiver," other courts had 

"specifically declare[d] a party need not prove prejudice," while still others "find 

prejudice is simply one factor to consider." Id. at 280 (citations omitted). The 

Court declined to address the contention of an amicus, which had urged that 

"prejudice to the party resisting arbitration is simply a factor, and certainly not 

an indispensable factor, in a waiver analysis." Id. at 282. But the Court 

implicitly treated prejudice in a non-dispositive way in its ensuing analysis. The 

Court explained that "[i]f we define prejudice as 'the inherent unfairness—in 

terms of delay, expense, or damage to a party's legal position—[then prejudice] 

occurs when the party's opponent forces it to litigate an issue and later seeks to 

arbitrate that same issue.'" Ibid. (internal citation omitted) (second alteration in 

original). 
18 A-3120-22

As the Court elaborated, that is exactly what occurred in Cole itself, in 

which the defendant forced the plaintiff to litigate the case for twenty-one 

months before it moved to compel arbitration on the eve of trial and "start over 

in a different forum under different rules." Ibid. The Court concluded that the 

defendant, having engaged in such conduct, waived its right to arbitrate. Id. at 

283. It added that "[s]uch conduct undermines the fundamental principles 

underlying arbitration and is strongly discouraged in our state." Ibid. 

Cole illustrates that, under New Jersey law, prejudice can serve as one of 

many waiver factors within the totality of circumstances. In this respect, Cole 

displaced our own previous appellate decisions that had required a party 

asserting an opponent's waiver of an arbitration right to demonstrate it had 

suffered prejudice. See, e.g., Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. 

Super. 138, 150 (App. Div. 2008) ("A waiver of a right to arbitration based on 

a delay in seeking that relief will be found only if that delay has resulted in 

demonstrable prejudice to the party opposing arbitration." (emphasis added)); 

Spaeth v. Srinivasan, 403 N.J. Super. 508, 515 (App. Div. 2008) ("[T]he 

presence or absence of prejudice has been deemed determinative of the issue of 

waiver." (emphasis added)).
19 A-3120-22

Cole's inclusion of prejudice within its multifactor test as a nondispositive and non-essential consideration does not unduly tilt the waiver 

analysis for or against arbitration. It is simply something the court should 

consider within the overall mix of factors. We do not believe that such an 

approach violates Morgan. In fact, we have held that the multifactor Cole test 

of waiver should apply, by analogy, in a non-arbitration context involving a 

plaintiff's assertion that a defendant had waived the application of a contractual 

forum selection clause. See Largoza v. FKM Real Est. Holdings, Inc., 474 N.J. 

Super. 61, 83-87 (App. Div. 2022). In our discussion in Largoza, we quoted 

from a Texas opinion that deemed the "actual prejudice" to a plaintiff a relevant 

factor in assessing whether defendant waived its right to invoke a forum 

selection clause. Id. at 85 (quoting In re Nationwide Ins. Co. of Am., 494 

S.W.3d 708, 713-17 (Tex. 2016)). Our post-Cole case law has therefore not 

singled out arbitration. 

For these various reasons, we reject Biagi's contention that Morgan 

requires the elimination of prejudice from Cole's multifactor test. We now then 

turn to the remaining arguments before us. 
20 A-3120-22

B.

Marmo contends the trial court improperly penalized it for filing a case in 

the Law Division after asserting and proving, in part, a residential construction 

lien before a CLL arbitrator. Marmo argues the CLL requires lien claimants to 

"commence an action in the Superior Court" within one year to enforce the lien 

and to avoid "forfeit[ing] all rights to enforce the lien" per N.J.S.A. 2A:44A-14. 

However, Marmo overlooks part (d) of N.J.S.A. 2A:44A-14, which states "[a]ny

disputes arising out of the improvement which is the subject of a lien claim but 

which are unrelated to any action to enforce a lien claim may be brought in a 

separate action or in a separate count in the same action." (emphasis added). 

Thus, litigants have the option, but are not required, to include related claims in 

a CLL complaint or to maintain separate actions to vindicate the distinct 

interests. See also Orefice v. ADR, 315 N.J. Super. 493, 497-98 (App. Div. 

1998) (finding lien claims supplement, but do not replace, traditional contract 

claims). Orefice relied on N.J.S.A. 2A:44A-3 ("Nothing in this act shall be 

construed to limit the right of any claimant from pursuing any other remedy 

provided by law.") and the CLL's limitation on the amount of a lien to the 

contract price (to the exclusion of claims for lost profits). Id. at 498. 
21 A-3120-22

The trial court properly weighed against Marmo its inclusion of 

contractual, quasi-contractual, and other claims in the complaint beyond the 

CLL claim. In any event, there are sufficient grounds to find waiver, regardless 

of whether that particular aspect of its complaint should be held against Marmo. 

We turn now to a sequential analysis of the Cole factors. 

C.

1. Delay. As we noted above, the trial court found that Marmo's delay 

of approximately six months between filing its complaint and moving to compel 

arbitration3 was "not inordinate." The delay is substantially less than the twentyone-month delay that the Court decried in Cole. Six months is approximately 

the same delay we excused in Spaeth, 403 N.J. Super. at 516. However, unlike 

the pro se litigant in Spaeth—who had asserted a right to arbitrate before 

exchanging discovery or scheduling depositions—Marmo was represented here 

by counsel, who was better equipped to recognize its right to arbitration and act 

3

 Delay is calculated as the time between the filing of the complaint and the first 

assertion of a right to arbitrate. See Cole, 215 N.J. at 271; Spaeth, 403 N.J. 

Super. at 512-17 (applying the same calculation to quantify delay by pro se 

defendant). Cole and Spaeth both calculated delays in situations where the 

waiving party was a defendant, whereas Marmo here is a plaintiff. We believe 

the filing of the complaint should remain the operative start date, as it marks the 

first time Marmo demonstrated an intention to litigate, not arbitrate. 
22 A-3120-22

upon it swiftly. In any event, if the delay factor is assessed purely by the passage 

of time, it does not weigh heavily in favor of waiver. 

2. Motion Practice. No motion practice, dispositive or otherwise, 

occurred before Marmo moved to compel arbitration. The trial court did note 

Marmo's threat to file a motion to compel discovery. The threat occurred four 

months after the complaint was filed and was not carried out, as Biagi produced 

the demanded discovery shortly thereafter. Even without the formal filing of a 

discovery motion, we regard Marmo's threat to compel discovery as relevant to 

the Cole analysis, because it evinces conduct by Marmo to invoke judicial 

enforcement processes that are, by comparison, more robust than those in 

arbitration.4

3. and 4. Litigation Strategy and the Extent of Discovery Conducted. We 

next consider, under factor three, whether Marmo's delay in seeking arbitration 

4

 See Am. Arb. Ass'n, Constr. Indus. Arb. Rules & Mediation Procs. R-25 (rev. 

2024) (the "AAA Construction Rules") (noting the "enforcement powers of the 

arbitrator" may be invoked "in the case of willful non-compliance with any order 

issued by the arbitrator" and include "drawing adverse inferences, excluding 

evidence and other submissions, and/or making special allocations of costs or 

an interim award of costs arising from such non-compliance"), as contrasted 

with the Part IV discovery rules in the Superior Court that provide for certain 

remedies for non-compliance as of right. Cf. R. 4:23-1 (concerning dismissal for 

failure to answer interrogatories); see also Hay Grp., Inc. v. E.B.S. Acquisition 

Corp., 360 F.3d 404, 408-09 (3d Cir. 2004) (interpreting the FAA to find that 

arbitrators are not empowered to issue pre-hearing subpoenas). 
23 A-3120-22

was part of its "litigation strategy," and, relatedly, the fourth factor—"the extent 

of discovery conducted." As we noted above, the trial court observed: 

What plaintiff's strategy was in filing the court action 

knowing that the [] Contract required such disputes to 

be filed through arbitration is difficult to determine. . . . 

Plaintiff clearly received the benefit of the court filing 

through the discovery it received, but it is not clear 

from the record whether that same discovery could have 

been obtained through the arbitrator. 

Here, as noted by the trial court, Marmo obtained substantial discovery 

from Biagi, including hundreds of pages of documents and interrogatory 

answers. It also obtained documents subpoenaed, albeit by Biagi, from four 

subcontractors. 

The AAA Construction Rules do not provide an automatic right to take 

depositions in cases with claims under $1,000,000. Id. at L-4(f). This dispute 

would likely not be afforded depositions, since Marmo's complaint seeks 

recovery of a lien amount of only $132,887, plus unquantified other damages. 

Although no depositions were conducted yet in the Law Division case, the 

parties had scheduled them with the participation of Marmo's counsel. Biagi 

was thereby deprived of the ability to carry out those depositions as of right 

under the Rules of Court. 
24 A-3120-22

Marmo's delay in moving to compel arbitration allowed it to obtain the 

early benefit of discovery that might not have been as easily obtainable in 

arbitration. Marmo requested additional time to answer Biagi's own discovery 

demands and only moved to compel arbitration when it seemed likely that the 

trial court would force Marmo to reciprocate in producing documents. Marmo 

used the court system to its advantage before shifting the case to arbitration. We 

accept the representation of Marmo's counsel concerning Cole factor three, that 

Marmo's failure to recognize its right to arbitration sooner was a good-faith 

mistake, but that does not eliminate the relevance of Cole factor four, that 

strongly weighs against waiver. 

5. The Pleadings. The fifth Cole factor, "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" also weighs against 

Marmo. 215 N.J. at 281. Here, Marmo initiated the action by filing its 

complaint rather than asserting its right to arbitration. As we noted above, and 

as emphasized by the trial court, Marmo attested in its Rule 4:5-1(b)(2) 

certification that no arbitration was pending and that, to "the best of its belief," 

none was contemplated. The Rule recognizes a party's "continuing obligation" 

to amend the certification if the underlying facts change. Marmo made no such 
25 A-3120-22

amendment, instead responding to Biagi's counterclaims with an answer alleging 

eight affirmative defenses, none of which concerned arbitration. These 

pleadings strongly weigh as a factor in favor of waiver. 

We add, as a general point of guidance, that judicial resources are wasted 

when a case is brought by a plaintiff and litigated in the Superior Court when it 

should have been pursued instead in arbitration. Consequently, we emphasize 

the importance of accurate Rule 4:5-1(b)(2) certifications at the outset of a case, 

and counsel's due diligence in promptly advising the court and opposing counsel, 

on a continuing basis, as to whether arbitration might be sought. 

6. Proximity to a Trial Date. This factor weighs here against waiver, 

since no trial date in the Law Division had been set. 

7. Prejudice. Although it is non-dispositive for the reasons we have 

already explained, we discern this factor weighs slightly here in favor of waiver. 

We reach that assessment because Marmo was able to obtain, through the 

Superior Court discovery process, a substantial and lopsided amount of early 

discovery from Biagi that it might not have been able to obtain so readily in 

arbitration. Even though the extent of prejudice to Biagi was arguably modest, 

it is not completely insignificant.
26 A-3120-22

 Having completed the foregoing de novo analysis of the Cole factors, we 

conclude the totality of such factors weighs in favor of the trial court's ultimate 

determination that Marmo waived the opportunity to compel arbitration. For the 

reasons we have canvassed, Marmo's actions and inactions as the plaintiff in this 

lawsuit justify, on the whole, waiver of its right to bring this dispute in

arbitration, pursuant to the terms of the contract that it drafted. 

 Affirmed.