NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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 DIVISION2 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. Santagat a, 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 i nitiated. 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 Biag i 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 tha t 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 C onstruction Lien Law ("CLL"), N.J.S.A. 2A:44A-1 to - 38 ; (2) assert ed in its Rule 4:5 -1(b)(2)3 A- 3120

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certification accompanying its complaint that no ar bitration was contemplated ; and (3) waited to move to compel arbitration after receiving the benefit of significant discovery while failing to comply recip rocally 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 w hether the party opposing arbitration was prejudiced by the movant' s delay. Prejudice remains one of the pertinent, but not individually dispositive, Cole f actors after Morgan. Nevertheless, that particular factor is not control ling in this case, given the totality of the circumstances that otherwise, on ba lance, further establish waiver.
I. In May 2021, the parties executed a written contrac t 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 p rovision in which the parties agreed that any disputes arising out of the contract are to be referred to4 A- 3120

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binding arbitration administered by the American Arbitration Association (" AAA " ). Marmo partially built the house before a dispute ar ose between the parties. Biagi terminated the contract, refusing to pay Marm o anything further. In August 2022, Marmo served Biagi with an arbitrat ion 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 arbitra tor 1 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 reflect ed downward adjustments for unsigned change orders ($54,949), claimed extra wor k 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

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contract, (2) unjust enrichment, (3) enforcement of a residential construction lien under the CLL, and (4) reasonable value of ser vices. Notably, Marmo' s complaint was accompanied by the requisite Rule 4:5

- 1(b)(2 ) certification disclosing whether other related proc eedings 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 arbitra ti on 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 ap pearing in Rule 4:5 -1(b)(2) , the certification otherwise tracks the Rule. On January 6, 2023, Biagi filed an answer denying t he complaint' s allegations and asserting affirmative defenses of f raud, nonperformance, and entitlement to a set-off greater than the lien. Th e answer further asserts

2 Rule 4:5 -1(b)(2) provides: "Each party shall include with t he first pleading a certification as to whether the matter in controver sy is the subject of any other action pending in any court or of a pending arbitra tion proceeding, or whether any other action or arbitration proceeding is conte mplated; and, if so, the certification shall identify such actions and all par ties 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 a n amended certification if there is a change in the facts stated in the original cer tification."6 A- 3120

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counterclaims against Marmo for: (1) breach of cont ract, (2) breach of the covenant of good faith and fair dealing, (3) neglig ence, (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 tr ade under N.J.S.A. 56:9-12. Biagi also pled a third-party complaint that included cla ims 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 cer tification 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 address ed in arbitration rather than in

court. The case then proceeded through what the trial cour t characterized as "significant discovery." The court noted that when Marmo answered the counterclaim and third-party complaint, it simultan eously served Biagi with 100 written discovery demands. When Biagi did not timely respond, Marmo threatened to file a motion to compel discovery. T wo weeks later, Biagi7 A- 3120

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produced to Marmo "over 800 pages of documents and several gigabytes of ediscovery that required the use of an outside vendo r to complete." Biagi also answered Marmo's interrogatories and produced addit ional e-discovery. In addition, the parties each received discovery produ ced through subpoenas served by Biagi upon the project's four subcontract ors. Marmo also participated

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

not transpire before Marmo's motion to compel arbitrati on. Meanwhile, Marmo did not comply with Biagi's discov ery demands. It obtained an extension of time to comply, but, as th e 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 [Biag i's] extensive discovery production but has withheld its own discovery respo nses." On April 14, 2023

— about six months after it filed its complaint

— Marmo moved to stay the Law Division proceedings and to c ompel 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, th e trial court concluded Marmo "waived its right to transfer the case to arb itration and therefore denies the motion."8 A- 3120

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This interlocutory appeal by Marmo ensued.
II. As federal and New Jersey case law implementing the F ederal Arbitration Act ("FAA") have recognized, the voluntary arbitrat ion 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); Atal ese 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 wa ived 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 circ umstances" 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 mot ions, and their outcomes; (3) whether the delay in seekin g arbitration was part of the party's litigation stra tegy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings, part icularly as an affirmative defense, or provided other notifi cation of its intent to seek arbitration; (6) the proximit y of the date on which the party sought arbitration to the d ate 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 dispositiv e." Id. at 281. Applying those newly announced factors, the Court concluded the arbitration movant in Cole "engaged in litigation c onduct that was inconsistent with its right to arbitrate the dispute with its fo rmer employee." I bid. Among other things, the movant had failed to assert arbit ration as a defense in its pleadings, participated in discovery during a pretr ial period spanning over twenty-one months, and had filed a partial ly successful dispositive motion. I d.
at 281- 82. Nearly a decade after Cole was decided, the United State s Supreme Court in 2022 addressed the standards for arbitration wai ver in Morgan , 596 U.S. at 211. Morgan invalidated Eighth Circuit precedent t hat had "condition[ed] a waiver of the right to arbitrate on a showing of pr ejudice." 596 U.S. at 417. In Morgan, an hourly employee of a Taco Bell franch ise owned by defendant Sundance filed a nationwide collective ac tion 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 arbi tration agreement existed" by moving to dismiss the suit as duplicative of a previ ous collective action by Taco10 A- 3120

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Bell employees. Id. at 414 . Sundance answer ed the complaint with fourteen affirmative defenses , none of which mentioned arbitration

. Ibid. After participating in unsuccessful mediation and i n scheduling conferences with the court, Sundance moved to compe l arbitration under the FAA, nearly eight months after the filing of the complaint

. I d. at 414- 15. The district court denied the motion to compel. Ibid. In doing so, the district court applied Eighth Circuit precedent requ ir ing 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 i n formal discovery, nor contested any matters going to the merits of the ca se. Ibid. The dissenting circuit judge disagreed, noting that Morgan had was ted time and money in opposing Sundance 's dismissal motion and in a fruitless mediation. Id. at 415- 16. The dissenter also express ed doubts about the propriety of the prejudice requirement. The Supreme Court granted certiorari in Morgan to r esolve a conflict among the circuit courts about the propriety of a p rejudice requirement. Id. at11 A- 3120

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416. Nine circuits, including the Eighth, had impo sed such a requirement, and two circuits eschewed such a rule. Ibid. The Court in Morgan adopted the circuits' minority pos ition, 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 t ilt 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 con text, a federal court assessing waiver does not generally ask about preju dice." Id. at 417. The Court accordingly ruled in Morgan the circuit " was wrong to condition a waiver of the right to arbitrate on a s howing of prejudice." Ibid. It remanded the case for an analysis of whether Sundan ce "knowingly relinquish[ed] the right to arbitrate by acting inc onsistent with that right." Id. at 419. Here, the parties cited Cole and Morgan in their ar guments to the trial court. Marmo argued the Cole factors weighed again st a finding of waiver, and noted that, among other things, Biagi was not preju diced by the six-month delay12 A- 3120

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in Marmo' s filing of the dismissal motion. Biagi, meanwhile, asserted that Morgan renders prejudice irrelevant to the waiver a nalysis, and that the remaining Cole factors here weigh in favor of waive r. In this regard, Biagi has relied on several recent circuit court opinions app lying 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 p rejudice to the party not seeking arbitration as the focus of the waiver inqu iry"); Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1015 (9th Cir. 2023) ( construing Morgan to "abrogate[] . . . precedents to the extent they req uired the party opposing arbitration to demonstrate prejudice"). The trial court expressed ambivalence in its writte n decision. Initially, it highlighted that Marmo had chosen to file a complaint in the Law Division with broader contractual, quasi-contractual, and other c laims that went beyond those necessary to enforce the construction lien. The co urt 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 contempla ted. '" 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

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The trial court punctuated these initial observatio ns with the following discussion: Marmo had full knowledge of the right and obligatio n

to proceed through arbitration, but chose not to ta ke 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 i s made as regards the contractual right to arbitratio n in an effort to enliven that right. Instead, plaintif f takes the opportunity to take discovery. Then through th e 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 waiv er are met. [(Emphasis added).] Despite those observations, the trial court noted t hat 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 del ay in making the arbitration request, but not inordina te delay, the request having been made within six mont hs from the filing of the complaint. Under Cole , those factors would likely favor transferring the claims t o 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 benefi t of the court system and the opportunity to put the case before a jury if the ma tter is transferred to arbitration." But even if no other prejudice is demonstrated, the court deemed the lack of such additional prejudice inessential to a fi nding of waiver under the Supreme Court's opinion in Morgan. The court construed Morgan to signify that "resulting prejudice to the other party [here, Biag i] is not a consideration since the elements of waiver look to the waiving party, a nd not the defendant in this
case." Having analyzed these various considerations, the c ourt concluded as follows: While the analysis under Cole would appear more

favorable to the plaintiff's position, examining th e application using the elements of waiver as directe d by the U.S. Supreme Court in Morgan leads this court t o the conclusion that plaintiff waived their right embodied in the Construction Contract to litigate t he various claims enumerated in the complaint and counterclaim in arbitration. It is difficult for t his court to see how the favorable factors arrived at under C ole would overcome plaintiff's own act in bringing the claim in court knowing that he had [a] right to pro ceed per the contract through arbitration and then certi fied as part of the court filing that no other arbitrati on proceeding is contemplated. The court finds that15 A- 3120

- 22 plaintiff has waived its right to transfer the case to arbitration and therefore denies the motion. [(Emphasis added).] Marmo appeal ed the trial court's ruling. It contends the trial c ourt should have adhered to its tentative observation that the Cole factors weighed overall against waiver, and that the court was unduly swaye d by Morgan in its ultimate assessment of the circumstances. Biagi counters th at 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, de spite the trial court' s observation, the other Cole factors actually weigh in favor of waiver.
II I. We review the trial court's disposition of the lega l 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 submit ted by the parties at our request, we affirm the order denying arbitration, a lbeit for reasons somewhat different than those expressed by the trial court.
A. As a threshold matter, we construe Morgan to disall ow consideration of prejudice only if that is used by a court as a nece ssary element for waiver in the arbitration context.16 A- 3120

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Our New Jersey case law generally does not require prejudice to prove waiver. Waiver is defined as "the voluntary and intenti onal relinquishment of a known right." Knorr v. Smeal , 178 N.J. 169, 177 (2003). Waiver may be inferred from conduct, in addition to explicit decl arations. Ibid. In Shebar v. Sanyo Business Systems Corp., 111 N.J. 276, 291 (19 88), the Supreme Court described the concept of waiver as follows:

Waiver, under New Jersey law, involves the intentio nal relinquishment of a known right, and thus it must b e shown that the party charged with the waiver knew of [that party's] legal rights and deliberately intend ed to relinquish them. . . . [W]aiver implies an election by the party to dispense with something of value, or to fo rego some advantage which [one] might at [one's] option have demanded and insisted on. Questions of waiver , therefore, are usually questions of intent, which a re factual determinations that should not be made on a motion for summary judgment. [Ibid. (emphasis added) (quotations omitted).] The definition of waiver therefore focuses predomin antly 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

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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 ot her 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 pre judice," 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 amic us, which had urged that "prejudice to the party resisting arbitration is si mply 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 leg al position

— [then prejudice] occurs when the party's opponent forces it to litig ate an issue and later seeks to arbitrate that same issue.'" Ibid. (internal citation omitted) (second alteration in original).18 A- 3120

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As the Court elaborated, that is exactly what occur red in Cole itself, in which the defendant forced the plaintiff to litigat e 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 i ts 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, prejud ice can serve a s one of many waiver factors within the totality of circumst ances. In this respect, Cole displaced our own previous appellate decisions that had required a party asserting an opponent's waiver of an arbitration ri ght 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 ri ght 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 arbitr ation." (emphasis added)) ; Spaeth v. Srinivasan, 403 N.J. Super. 508, 515 (App . Div. 2008) ("[T]he presence or absence of prejudice has been deemed de terminative of the issue of waiver." (emphasis added) ).19 A- 3120

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Cole's inclusion of prejudice within its multifacto r test as a nondispositive and non -essential consideration does not unduly tilt the w aiver 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 tes t of waiver should apply, by analogy, in a non-arbitr ation context inv olving a plaintiff's assertion that a defendant had waived t he 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 ri ght to invoke a forum selection clause. Id. at 85 (quoting In re Nationw ide 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 conten tion that Morgan requires the elimination of prejudice from Cole's m ultifactor 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 pa rt, a residential construction lien before a CLL arbitrator. Marmo argues the CLL requires lien claimants to "commence an action in the Superior Court" within o ne 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:44 A-14, which states " [a] ny disputes arising out of the improvement which is th e 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 in clude related claims in

a CLL complaint or to maintain separate actions to vi ndicate the distinct interests. See also Orefice v. ADR, 315 N.J. Super . 493, 4 97 -98 (App. Div. 1998) (finding lien claims supplement, but do not r eplace, 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 p ursuing 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

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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 s hould be held against Marmo. We turn now to a sequential analysis of the Cole fa ctors. C.
1. Delay. As we noted above, the trial court found tha t Marmo 's delay of approximately six months between filing its complaint and moving to compel arbitration 3 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 it s 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 b y pro se defendant). Cole and Spaeth both calculated delays in situations where the waiving party was a defendant, whereas Marmo here i s a plaintiff

. We believe the filing of the complaint should remain the operati ve start date, as it marks the first time Marmo demonstrated an intention to litig ate, not arbitrate.22 A- 3120

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upon it swiftly

. In any event, if the delay factor is assessed pure ly 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 o ut, as Biagi produced the demanded discovery shortly thereafter. Even wi thout the formal filing of a discovery motion, we regard Marmo's threat to compe l discovery as relevant to the Cole analysis, because it evinces conduct by Ma rmo t o 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 Cond ucted. 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 "e nforcement powers of the arbitrator" may be invoked "in the case of willful non-compliance with any order issued by the arbitrator" and include "drawing adve rse inferences, excluding evidence and other submissions, and/or making speci al allocations of costs or an interim award of costs arising from such non-com pliance"), as contrasted with the Part IV discovery rules in the Superior Co urt 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) (interpr eting the FAA to find that arbitrators are not empowered to issue pre-hearing subpoenas).23 A- 3120

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

— "the extent of discovery conducted." A s we noted above, the trial court observed:

What plaintiff's strategy was in filing the court a ction knowing that the [] Contract required such disputes to be filed through arbitration is difficult to determ ine. . .

. Plaintiff clearly received the benefit of the court filing through the discovery it received, but it is not cl ear from the record whether that same discovery could h ave been obtained through the arbitrator. Here, as noted by the trial court, Marmo obtained substanti al discovery from Biagi, including hundreds of pages of document s and interrogatory answers. It also obtained documents subpoenaed, al beit by Biagi, from four subcontractors. The AAA Construction Rules do not provide an automa tic 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 Mar mo'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 o f Marmo's counsel. Biagi was thereby deprived of the ability to carry out th ose depositions as of right under the Rules of Court.24 A- 3120

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Marmo's delay in moving to compel arbitration allow ed it to obtain the early benefit of discovery that might not have been as easily obtainable in arbitration. Marmo requested additional time to an swer Biagi' s own discovery demands and only moved to compel arbitration when i t seemed likely that the trial court would force Marmo to reciprocate in pro ducing documents. Marmo used the court system to its advantage before shifting the case to arbitration. We accept the representation of Marmo's counsel concer ning Cole factor three, that Marmo's failure to recognize its right to arbitrati on 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 th e party raised the arbitration issue in its pleadings, particularly as an affirmative defense, or provided other notification of its intent to seek a rbitration" also weighs against Marmo. 215 N.J. at 281. Here, Marmo initiated the action by filing its complaint rather than asserting its right to arbitr ation. 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 t hat, 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 such25 A- 3120

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amendment, instead responding to Biagi's countercla ims with an answer alleging eight affirmative defenses, none of which concerned arbitration. These pleadings strongly weigh as a factor in favor of wa iver. 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. C onsequently, 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 th e court and opposing counsel , on a continuing basis, as to whether arbitration mi ght be sought. 6. Proximity to a Trial Date. This factor weighs her e against waiver, since no trial date in the Law Division had been se t. 7. Prejudice

. Although it is non- dispositive for the reasons we have already explained, we discern this factor weighs sl ightly 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 ab le to obtain so readily in arbitration. Even though the extent of prejudice t o Biagi was arguably modest, it is not completely insignificant.26 A- 3120

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Having completed the foregoing de novo analysis of the Cole factors, we conclude the totality of such factors weighs in fav or 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 inac tions 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.