Posted: January 3, 2019

Rulings on Motion to Dismiss Were Not Binding Under Law of the Case Doctrine

On November 29, 2018, the Appellate Division of the New Jersey Superior Court issued a decision in Tully v. Mirz, Docket No. A-0241-17T1, explaining that a court’s holdings on a motion to dismiss were not binding under the law of the case doctrine, explaining:

The law of the case doctrine provides that a legal decision made in a particular matter should be respected by all other lower or equal courts during the pendency of that case. A hallmark of the law of the case doctrine is its discretionary nature. It is a non-binding rule intended to prevent relitigation of a previously resolved issue. The doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.

Our courts treat the denial of a motion to dismiss as interlocutory.

The denial of defendant’s motions to dismiss did not constitute a ruling on the merits of whether plaintiff’s claims were derivative or direct. Nor did those rulings adjudicate whether the court should exercise its discretion to treat the action raising derivative claims as a direct action under Brown. The rulings were not dispositive. Rather, the rulings merely decided that Tully’s claims were sufficient to survive a motion to dismiss.

The trial judge based his decision upon the evidence adduced at trial following discovery, not the facts as alleged in the amended complaint. The testimonial evidence presented at trial was not available when either of the motions to dismiss were decided. The law of the case doctrine does not require a trial judge to follow a prior motion ruling by a different judge if presented with substantially different evidence. The trial judge was not bound to follow the motion judges’ preliminary assessments of the facts or rulings.

(Internal quotations and citations omitted).

The law of the case doctrine discussed here, along with doctrines such as collateral estoppel, res judicata and the entire controversy doctrine, limits a party’s ability to litigate an issue more than once. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding whether a claim is barred by an earlier decision or action.

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