SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3850-95T3F
JOEL ERENBERG, Individually, and
as General Administrator and
Administrator Ad Prosequendum of
the Estate of Marc Erenberg,
Deceased; LILLIAN ERENBERG and
BENJAMIN ERENBERG, Her Husband,
Plaintiffs-Respondents,
v.
CARLOS CORDERO, GENERAL MOTORS
CORPORATION OF AMERICA, and
ZYZ CORPORATION,
Defendants-Appellants.
__________________________________________
LESLIE A. NAPOLI,
Plaintiff-Respondent,
v.
CARLOS CORDERO, GENERAL MOTORS
CORPORATION OF AMERICA, and
ZYZ CORPORATION,
Defendants-Appellants.
_________________________________________________________________
Argued September 17, 1996 - Decided October 22, 1996
Before Judges Pressler, Stern and Humphreys.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County.
Edward J. Fanning argued the cause for appellant
General Motors Corporation of America (Tansey,
Fanning, Haggerty, Kelly, Convery & Murray,
attorneys; Mr. Fanning, of counsel; Sharon
McConvery, on the brief).
Richard B. Ansell argued the cause for respondent
Joel Erenberg (Ansell, Zaro, Grimm & Aaron,
attorneys; Mr. Ansell, of counsel; Stephanie H.
Hodach, on the brief).
James P. Patuto argued the cause for respondent
Leslie Napoli (Galantucci & Patuto, attorneys;
Mr. Patuto, of counsel; Durrell W. Ciccia,
on the letter brief).
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
Defendant General Motors Corporation of America (GM) moved, on
entire controversy grounds, for summary judgment dismissing this
consolidated action against it. It appeals, on leave granted, from
the denial of its motion, and we affirm.
The entire controversy problem before us arises out of the
tragic death of thirteen-year old Marc Erenberg on March 7, 1992.
Marc was a back-seat passenger in a Pontiac Firebird being driven
by his stepmother, plaintiff Leslie A. Napoli, on Route 46 in
Little Ferry, when the vehicle was struck in a multi-car collision
caused by the negligence of the driver of one of the other
vehicles, defendant Carlos Cordero, who was driving while
intoxicated. Marc died shortly thereafter of the injuries he
sustained in the accident. Injuries were also sustained by the
other occupants of Napoli's vehicle....Napoli herself; Marc's father,
plaintiff Joel Erenberg; and Marc's grandmother, plaintiff Lillian
Erenberg. Cordero was convicted in the Law Division, Bergen
County, of death by auto.
The multi-state litigation that followed is attributable, at
least in substantial part, to the fact that Marc's parents are
divorced. At the time of the accident Marc was living with his
mother Lois Erenberg in Westchester County, New York, and was with
his father, a resident of Fort Lee, New Jersey, for a visit.
Shortly after the boy's death, Lois Erenberg petitioned the
Westchester County Surrogate for letters of limited administration
authorizing her to commence a personal injury and wrongful death
action on behalf of Marc's estate. After Joel Erenberg was
noticed, letters were issued to Marc's mother on April 24, 1992,
just six weeks after the tragedy. She commenced an action as
administratrix against Cordero and Napoli and the drivers of the
other two cars involved in the collision in Bronx County, Cordero's
place of residence, on June 5, 1992. Joel Erenberg was named in
the complaint as among Marc's next of kin but was not a party to
the action. Napoli, although a defendant, did not file any cross
claims or third-party complaints. The action was ultimately
settled by the payment by Cordero's liability carrier of his policy
limit of $50,000 and the payment by Napoli's liability carrier of
$50,000 under the underinsured motorist (UIM) clause of her policy.
According to New York practice, the settlement was authorized by a
decree of the Westchester County Surrogate's Court, entered in
November 1993, confirming the mother's petition therefor filed on
July 30, 1993. The proceeds of the settlement, after deduction of
attorney's fees and expenses, were shared equally by the parents.
In the meantime, matters were proceeding in New Jersey with
respect to other claims by Erenberg family members arising out of
the accident that had not been raised in the New York action.
Primary among these claims was the second-collision claim against
GM, the manufacturer of Napoli's vehicle, based on the contention
that the seat belt Marc was wearing at the time of the accident was
defective either in manufacture or design and that it was the
defective seat belt which caused the internal injuries from which
Marc died. These claims were raised in two separate actions in New
Jersey, both filed after the date of Lois Erenberg's petition in
New York for the approval of the settlements. The first of the New
Jersey actions was instituted on August 12, 1993, by Joel Erenberg,
individually and as administrator ad prosequendum of Marc's
estate.See footnote 1 The second was instituted on February 4, 1994, by Napoli.
In their respective actions, thereafter consolidated, Napoli
and Joel Erenberg each sought recovery from GM and the fictitiously
named manufacturer of the seat belt for the emotional distress
damages each allegedly sustained as a result of having witnessed
Marc's death. See Portee v. Jaffee,
84 N.J. 88 (1980). Joel
Erenberg, as administrator ad prosequendum, also sought survivor
and wrongful death damages against GM based on the allegedly
defective seat belt. Both Napoli and Erenberg also sought damages
for their own personal injuries from GM on an unspecified products
liability theory.
The question raised is whether the entire controversy doctrine
bars the prosecution in New Jersey of the suit against GM by Napoli
and by Erenberg, both individually and as administrator ad
prosequendum. The trial court concluded that it did not, and we
agree.
In broad terms, the present contours of New Jersey's unique
entire controversy doctrine require parties to an action not only
to raise in that action all claims they may have against each other
arising out of the subject transaction but also to join all non-parties subject to the court's jurisdiction against whom additional
accrued claims arising out of that transaction may be asserted.
See generally Circle Chevrolet v. Giordano, Halleran & Ciesla,
142 N.J. 280 (1995); Cogdell v. Hospital Center at Orange,
116 N.J. 7
(1989). The doctrine has also been construed as barring a
subsequent suit in the courts of this State if there was a prior
action in another forum in which non-parties sought to be sued here
were there joinable. Mortgagelinq Corp. v. Commonwealth Land
Title,
142 N.J. 336, 343-345 (1995). We are aware of the New
Jersey Supreme Court's continuing commitment to an expansively
embracing entire controversy doctrine for the purposes of avoiding
fragmentation of litigation, achieving expediency in the
disposition of controversies for the benefit of the civil justice
system as a whole, and sparing litigants....both present and
prospective....from undue harassment, expense, and other burden.
See, e.g., Prevratil v. Mohr,
145 N.J. 180, 187 (1996). But the
Supreme Court has also recognized that since the doctrine is
equitably rooted, "its application is left to judicial discretion
based on the particular circumstances inherent in a given case."
Mystic Isle Development Corp. v. Perskie & Nehmad,
142 N.J. 310,
323 (1995). See also Prevratil, supra, 145 N.J. at 190, noting
that "equitable considerations can relax mandatory-joinder
requirements when joinder would be unfair." As we understand the
doctrine, chief among these equitable considerations is the full
and fair opportunity of the party sought to be precluded in the
second action to have raised the claim there asserted in the
original action. That consideration, together with the evident
lack of prejudice to the defendant in the second action, militates
against the doctrine's application here.
We consider, in the context of these principles, the sole
question before us, namely, whether GM, not having been joined in
the New York action brought by Marc's mother as administratrix ad
prosequendum, may be sued in New Jersey by Marc's father, who was
not a party to the New York action; by Marc's estate, which was a
party plaintiff; and by Marc's stepmother, who was a nominal party
defendant. We hold that in the circumstances here, the suit in New
Jersey by each against GM is not barred by the entire controversy
doctrine.
Resolution of the issue requires some further reference to the
New York proceeding. To begin with, that suit was controlled by
Marc's mother as administratrix. The record leaves no doubt that
her desire was to obtain the available insurance proceeds with as
little involvement on her part or protraction of the proceedings or
other complication as was possible. As early as July 28, 1992,
little more than a month after the New York suit was commenced,
Joel Erenberg's New Jersey attorney, Richard B. Ansell, discussed
the scope of the suit with Lois Erenberg's New York attorney, Mark
Oxman. The gist of their conversation, recorded contemporaneously
by Ansell, was that Cordero's carrier had already offered its
$50,000 policy limit and negotiations were pending with Napoli's
carrier for payment under her UIM protection. Although Ansell at
least suspected a potential products liability claim at the time,
he noted that Oxman "does not want to pursue other claims....we can
if we want."
The New York action lasted another year. There is no question
from this record that the delay was due only to the UIM claim made
by Marc's estate against the Napoli policy, the carrier,
apparently, having insisted on its arbitration rights. That
proceeding was concluded in mid-June 1993 by an award, uncontested
by the carrier, in the estate's favor for the full available amount
of $50,000. That award effectively concluded the New York action,
resulting in a total recovery of $100,000 for the estate. During
that year, however, Ansell continued to communicate with Oxman
regarding what Ansell now was satisfied was a viable seat belt
claim against GM. He advised Oxman of the father's concern that
the mother was refusing to raise that matter in the New York suit
and requested Oxman to consider appointment of the father as a co-administrator in New York in order to give him some control of the
litigation. In April 1993, while collection of insurance proceeds,
the estate's sole interest, was still pending, Ansell wrote again
to Oxman, advising as follows:
[M]y client has again expressed to me some
concern over your proposal to settle portions
of the case concerning Marc's death.
I do think there is a viable cause of
action because of the seat belt situation, and
the ability to prosecute that claim, at least
in New Jersey, may be precluded or compromised
because of the prior settlements.
Do you intend to pursue a claim against
General Motors?
I understand and appreciate that your
client is anxious to receive her share of the
available insurance proceeds. However, I
think you have to analyze the legal situation
to ensure that other claims are not
jeopardized.
Please call to discuss.
Finally, I note that you have not gotten
back to me concerning my client's request that
he be made co-administrator. You told me that
you would not oppose such an application once
you confirmed that my client had an equal
right to serve with your client in that
capacity.
Please call to discuss this aspect as
well.
Not receiving a satisfactory response, Ansell again wrote to Oxman
in June 1993, as follows:
[W]e are preparing to institute suit on behalf
of Joel Erenberg and Lillian Erenberg, his
mother, both of whom were passengers.
What are you going to do with Marc's
claim against General Motors for the seat belt
defect?
We must decide right away whether Mr.
Erenberg should qualify as Administrator Ad
Prosequendum in New Jersey. If so, your
client will have to sign certain
renunciations.
You and your client refused to allow Mr.
Erenberg to be a co-Administrator in the New
York action. I really do not want to have to
deal with Lois Erenberg were we to represent
Marc's potential claim.
It is imperative that we resolve these
issues at this time.
Oxman's reply reiterated Lois Erenberg's refusal to so proceed in
New York although she was not averse to Joel Erenberg pursuing that
claim in New Jersey. Ultimately, therefore, Joel Erenberg did not
interpose an objection to the Westchester County Surrogate Court's
approval of Lois Erenberg's settlement with the two carriers for
which she petitioned in July 1993.
Leslie Napoli's involvement....or rather, her lack of
involvement....in the New York action is detailed in the
certification of her New Jersey attorney, James P. Patuto.
According to his certification, it took almost a year for her
carrier to appoint an attorney to represent her in defense of the
New York suit. Patuto had, from the outset of Napoli's joinder
therein, challenged New York's personal jurisdiction over her,
first by so advising her carrier directly and then the attorney
finally designated by it to represent her. The accident had, after
all, occurred in New Jersey, and Napoli was a New Jersey resident.
Patuto also made clear, first to the carrier and then to the
attorney, that Napoli had an affirmative claim against Cordero
which she was not intending to waive. Moreover, Patuto asserted
that the Bergen County prosecutor had requested both Napoli and
Erenberg to withhold civil action against Cordero in the event it
might prejudice the pending death-by-auto prosecution. In the end,
Napoli was never personally involved in the New York litigation,
her affirmative claims were entirely ignored, her lawyer assigned
by her carrier never communicated either with her or Patuto, she
never appeared either in court or for pretrial discovery, she was
never even asked for a statement, and she was never advised of the
settlement of Lois Erenberg's action. Obviously, the "defense" of
the New York action was simply a matter of the two carriers paying
policy limits on outstanding insurance coverage.
We think the foregoing recitation is by itself sufficient to
demonstrate the unfairness of an application of the entire
controversy doctrine to bar the suit of any of the New Jersey
plaintiffs against GM. In considering the situation of each of
them, we note that a question of preclusion would not even arise if
the principles of the Restatement (Second) of Judgments (1982) had
not been modified in New Jersey by our mandatory joinder rule, the
entire controversy doctrine. See R. 4:30A. The fact that GM was
neither a party to the New York action, nor in privity with, nor
represented by a party to that action would, absent that doctrine,
be dispositive of the right of those who were parties to proceed
against GM in a subsequent action. See Restatement, supra, § 49
and § 49 comment a; see also id. § 17(3) comment c, § 34, and
Chapter 4 introductory note. Moreover, with respect to the claims
by the Estate of Marc Erenberg, the Restatement rule is that the
settlement with one tortfeasor does not preclude a subsequent
action against a non-party joint tortfeasor provided total damages
remain unadjudicated.See footnote 2 See id. § 49 comment a, § 50, and § 50
comment d.See footnote 3 The Restatement rules have, of course, been
substantially modified by the requirement of Cogdell and its
progeny that all claims against all potential tortfeasors must be
joined unless equitable considerations dictate to the contrary. We
agree with the trial court's perception that such considerations
obtained here in respect of the seat belt claim against GM.
First, we are satisfied that the entire controversy doctrine
does not apply to Joel Erenberg's individual claims against GM at
all. As far as we have been able to determine, the doctrine has
not yet been extended to require a non-party having an affirmative
claim against a defendant in pending litigation to seek to
intervene in that litigation in order to preserve his own rights
against that defendant....to say nothing of having to seek to
intervene in order to preserve his rights against a tortfeasor who
is not even a party-defendant to that pending litigation.
With respect to Napoli's claim against GM, we point out first
that the question of her right to proceed in New Jersey against
Cordero, who was her co-defendant in New York, is not before us.
The Prevratil holding, which addresses unjoined claims among
parties rather than claims against non-parties, is therefore not
here implicated. We are here concerned only with her right to sue
GM, which was not a party to the New York action, in New Jersey.
We do not see how she can fairly be deprived of that right in view
of her undisputed utter helplessness in the New York litigation and
the effective deprivation of her opportunity to present any
affirmative claim therein. We think it plain that her role in that
action was purely nominal....she was there so that the estate could
recover under her UIM coverage. She was afforded no right to
litigate any affirmative claim on her own behalf and clearly did
not intend to waive that right.
With respect to the estate's claim against GM, we recognize
that the estate was the party-plaintiff in New York. But the
litigation was controlled by Marc's mother, who rejected the
requested expansion of the litigation to include his father as a
co-administrator and to include the claim against GM. She was
willing to sue to obtain an essentially uninvolving recovery of
insurance proceeds. She evidently refused, as a matter of her own
emotional needs, any further and protractive litigation engagement
on her own part. In these circumstances, the father's decision to
leave the claim against GM for another day without subjecting the
mother to the difficulties, strains and burden of herself
prosecuting it must be regarded as both prudent and humane. We
note further that in view of the constraints placed upon the
litigation by Lois Erenberg, the litigation itself was tantamount
to nothing more than settlement negotiations. None of the
adversarial engagements of litigation appear to have taken place or
were even contemplated. Nor can it be fairly said that by his
action or non-action in New York, Erenberg waived the estate's
claim against GM.
We are also satisfied that the anti-fractionalization policy
underlying the entire controversy doctrine is served by the
prosecution in New Jersey of this consolidated action against GM.
That is to say, in our view, even an expansive reading of the
doctrine would not bar Joel Erenberg from suing GM individually in
New Jersey. He was not a party to the New York action and not
required to intervene therein. If that is so, then his suit
against GM would have proceeded in New Jersey in any case. We
think it plain that the interests of both judicial administration
and of all of the parties are best served by a single action
against GM arising out of the claim that the seat belt defect
contributed substantially to Marc's death. Thus, if there were
going to be any suit in New Jersey at all on that claim, it would
be far preferable for all the plaintiffs raising that claim to do
so in a single action rather than permitting Joel Erenberg's action
to proceed here at the same time the same claim was being litigated
in New York by the estate and Napoli, assuming of course, which we
doubt, that that claim could have been effectively raised at all in
New York in view of Lois Erenberg's recalcitrance and Napoli's
insurer's insistence on controlling the litigation involving its
policy while at the same time frustrating Napoli's opportunity to
pursue affirmative rights.
Finally, we have considered GM's situation as well. We are
satisfied that the litigation here in no way unduly prejudices its
litigation interests. The New Jersey plaintiffs were free to
commence this action against it at any time within the two-year
limitations period. Its not having been named a party to the New
York action had, in our view, no different consequence than if the
Cordero and Napoli carriers paid the policy limits without suit
having to be brought at all in New York. Nothing, in that event,
would have been precluded. And if that had been the case, there
would be no basis at all for GM to raise the specter of the entire
controversy doctrine. We are persuaded, under the circumstances
here, that that is all that the New York litigation really was....a
settlement of claims by carriers conducted under the aegis of the
Westchester County Surrogate's Court.
The order appealed from is affirmed.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3850-95T3F
JOEL ERENBERG, Individually, and
as General Administrator and
Administrator Ad Prosequendum of
the Estate of Marc Erenberg,
Deceased; LILLIAN ERENBERG and
BENJAMIN ERENBERG, Her Husband,
Plaintiffs-Respondents,
v.
CARLOS CORDERO, GENERAL MOTORS
CORPORATION OF AMERICA, and
ZYZ CORPORATION,
Defendants-Appellants.
_________________________________________________________________
STERN, J.A.D., concurring.
I join the opinion of the court, but write separately to
address the impact of Mortgagelinq Corp. v. Commonwealth Land
Title Ins. Co.,
142 N.J. 336 (1995), with respect to this
litigation.
Mortgagelinq involved a New Jersey case following a federal
action filed in the United States District Court for the Eastern
District of Pennsylvania. In the Pennsylvania action, plaintiffs
Mortgagelinq, a mortgage lender, and the Federal Home Loan
Mortgage Corporation (Freddie Mac) sued Pennsylvania land dealers
for manipulating the sale price of land (most of which was
located in New Jersey) in order to defraud plaintiffs. The New
Jersey action involved the same land transactions, but here
plaintiffs charged different defendants, "three title insurance
companies, a title agency, and three individuals alleged to be
employees of either the title insurance companies or the title
agency," who assisted in perpetrating the fraud. Mortgagelinq,
supra, 142 N.J. at 340. In light of these circumstances, our
Supreme Court held that the New Jersey action was precluded under
the entire controversy doctrine. But the Court's holding is
narrow: it held "that when a party deliberately chooses to
fragment litigation by suing certain parties in another
jurisdiction and withholds claims against other parties, a New
Jersey court need not later entertain the claims against the
omitted parties ... if jurisdiction was available in the first
forum" and the parties and claims could have been joined there.
Id. at 338 (emphasis added).
I will presume that there was in personam jurisdiction over
General Motors (GM) in New York and that, under appropriate
choice of law principles, the claims of the New Jersey plaintiffs
could have been pursued in New York. Nevertheless, I do not read
Mortgagelinq as barring a New Jersey action based upon
proceedings in a foreign jurisdiction in which the New Jersey
plaintiff was not a party, much less party plaintiff. Hence,
even though Joel Erenberg may have known of the existence of the
New York action and benefitted from its settlement by obtaining a
statutory share of the proceeds, Mortgagelinq does not bar his
individual action in New Jersey.
Further, in concurring with respect to the New Jersey action
of Leslie Napoli, I do not read Mortgagelinq as barring even a
subsequent New Jersey action otherwise barred here under
Prevratil v. Mohr,
145 N.J. 180 (1996), for failure to join
claims, where the New Jersey plaintiff was represented as a
defendant in the foreign action by a designee of the carrier, at
least in the absence of any indication in the record that the
carrier gave the type of notice required by Prevratil with
respect to the requirement of asserting a counterclaim (and third
party claim) in the foreign action. Prevratil v. Mohr, supra,
145 N.J. at 195-96. Hence, the defendant represented by the
carrier's designee in New York cannot be precluded from asserting
claims against a new party in New Jersey (unless precluded by
traditional concepts of issue or claim preclusion) for failing to
file a third party complaint in New York.
The impact of Mortgagelinq on the question of the ability of
Marc's estate to bring an action against GM in New Jersey, in
light of the fact that the action commenced on behalf of the
estate in New York, is more difficult to resolve. I will assume,
for the reasons expressed by the majority opinion, that the New
York action was commenced because Marc was a minor and court
approval had to be obtained in order to implement the settlement.
And I will further assume that the New York action was commenced
only for purposes of obtaining the policy proceeds. But Joel
Erenberg was aware of the New York action, and indeed through
counsel expressed great concern about its impact on an ability to
go forward in New Jersey against GM. Yet, as already noted,
there is no contest before us that there was both in personam
jurisdiction over GM in New York and that, under relevant choice
of law principles, the estate could have pursued its claim
against GM for the defective seat belt. Furthermore, Erenberg
knowingly and voluntarily decided to forgo any endeavor to become
a co-administrator in the New York action, and also elected not
to prevent the disposition of the New York matter and to
voluntarily accept his statutory proceeds as father, therefore
benefitting from the disposition of the estate action in New
York.
Moreover, this action was not filed until after the New York
case was disposed and Erenberg could have filed the New Jersey
action prior to the New York disposition and allowed the New
Jersey court to consider a management plan (even though that plan
would not have been binding on the New York court). Cf. Circle
Chevrolet Co. v. Giordano, Halleran & Ciesla,
142 N.J. 280, 293
(1995) (noting that "a trial court will consider the effects of
joinder ... when dealing with case management"); DiTrolio v.
Antiles,
142 N.J. 253, 275 (1995) (noting that "[i]t is the trial
court's responsibility to determine whether or not joinder is
appropriate in a given case").
Nevertheless, I concur in the opinion of the court regarding
the estate's action because I read Mortgagelinq to apply to a
unique factual situation and procedural history with an available
remedy which a reversal here would not permit. While our Supreme
Court affirmed dismissal of the New Jersey action on entire
controversy grounds, it expressly reversed the judgment of this
court "insofar as it dismissed the complaints with prejudice."
Mortgagelinq, supra, 142 N.J. at 348. The Court noted that a
second action had been filed by plaintiffs in the United States
District Court for the Eastern District of Pennsylvania against
the New Jersey defendants (after disposition of the first federal
action),See footnote 4 id. at 342, and that the impact of the prior
dispositions should be decided by the federal court in light of
the res judicata impact of its first disposition and the
dismissal, without prejudice, of the State action. Id. at 347-48. Significantly, the Court noted that "[t]here is a powerful
federal interest in the vindication of the rights of a federally-created mortgage-lending agency," and assumed "that the federal
court will carefully consider the vindication of that interest."
Id. at 348.
While it may be arguable that Joel Erenberg, the New Jersey
administrator, deliberately chose to fragment the litigation on
behalf of the estate, this case does not involve any ability of
the estate to vindicate its interest under the law of New Jersey,
where the accident occurred and the child died, if we dismiss the
estate's New Jersey complaint. I, therefore, concur in the
opinion of the court.
Footnote: 1Joel Erenberg's parents, Lillian and Benjamin Erenberg, joined as plaintiffs in that action, but we were advised at oral argument that all claims by Lillian and Benjamin Erenberg have been resolved, and we address them no further. Footnote: 2The bar imposed by the single-recovery rule applies, according to the Restatement, only when the amount of damages has been adjudicated, thereby fixing the total amount of damages which the plaintiff may recover irrespective of how many tortfeasors there may be. If the full amount has been paid by less than all of the tortfeasors, plaintiff is precluded from seeking further recovery against the others. See comment d on § 50. The total amount of damages was never here adjudicated. See also Theobald v. Angelos, 44 N.J. 228, 239 (1965). Hence the single-recovery rule does not apply. Footnote: 3We are aware that § 49 comment a of the Restatement (Second) of Judgments (1982) cautions that "[t]he injured party's right to maintain separate actions against multiple obligors" is subject to several important constraints. The specified constraints are that a party may not relitigate issues determined against him in the first action and that "[i]n some circumstances, the rules governing joinder of parties require that all those liable be joined as defendants, see, e.g., Restatement, Second, Contracts § 290, although in general such joinder is permissive." Section 290 of the Restatement (Second) of Contracts (1982) addresses only compulsory joinder of joint promisors. It is not a rule dealing with joint tortfeasors. Moreover, we see nothing in the record that would except this case from the applicability of § 49 of the Restatement (Second) of Judgments were the Restatement rules applicable in New Jersey and not substantially modified by Cogdell. Footnote: 4Plaintiffs opposed the Pennsylvania defendants' motion to join the New Jersey defendants in the first federal action, and their motion was denied. Mortgagelinq, supra, 142 N.J. at 340-41. Plaintiffs did not initiate the New Jersey action until the time for permissive joinder in the federal proceedings had expired. Id.