Defendants moved to compel arbitration after approximately sixteen months of litigation in the trial court. The trial court granted defendants' motion, finding they had not waived their asserted contractual right to arbitrate. On appeal, plaintiff argued the trial court erred in compelling arbitration because defendants had waived their right to arbitrate through their litigation conduct. In response, defendants contended the court lacked jurisdiction to decide the appeal because the trial court's order was "interlocutory" and the arbitration agreement at issue was governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.
The court reversed the order. The court held it had jurisdiction to decide the appeal because the FAA does not preempt Rule 2:2-3(a), a neutral procedural rule that identifies the types of orders that are appealable as of right. Conducting a de novo review of the waiver factors established by the New Jersey Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), the court found defendants had waived their right to arbitration by their litigation conduct, including their failure to indicate their intention to seek arbitration in their Rule 4:5-1(b)(2) certification or to fulfill their continuing obligation to amend the certification.