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Daily Decision Service Alert: Vol. 21, No. 218 ? November 8, 2012
New Jersey Law Journal
STATE COURT CASES
05-2-8149 Acosta v. Jackovino, App. Div. (per curiam) (13 pp.) Defendant appeals from an order of the Law Division vacating the court's order administratively dismissing plaintiffs' automobile negligence, personal injury complaint and permitting reinstatement, and confirming an arbitration award of $25,000. Defendant also appeals from an order denying reconsideration. The appellate panel finds there is a significant dispute about whether or not there was a settlement, and is unable to discern how the trial court could have resolved the factual disputes on the record presented and, in particular, to have summarily concluded that plaintiffs' counsel's "mistaken belief" as to the existence of a settlement constituted "excusable neglect." The record does not support the orders entered by the court. Accordingly, the panel reverses and remands for a plenary hearing for the court to take the testimony of the two attorneys and make credibility determinations and findings of fact.
06-2-8150 Bank of America, N.A. v. Princeton Park Associates, L.L.C., App. Div. (per curiam) (18 pp.) In this commercial mortgage foreclosure action, defendant Princeton Park Associates, L.L.C. (PPA) appeals from the order granting summary judgment to plaintiff Bank of America, N.A. (the Bank), and from the order denying PPA's motion for reconsideration. In granting the Banks motion for summary judgment, the judge found PPA had defaulted on the terms of the Note, the Mortgage Agreement and the Improvement Agreement by failing to make its required payments in a timely fashion. The judge pointed to the specific language in the documents which prohibited the agreements from being modified, except by a written agreement signed by both parties. PPA presented no evidence that such a written modification ever occurred. The fact the Bank accepted the late payments, the judge ruled, did not modify the terms of the Loan Documents because the Bank was entitled to the payments and the Bank made clear to PPA that its acceptance of the late payments did not constitute a waiver of any of its rights. The appellate panel affirms, rejecting PPAs arguments that the Bank did not have standing to file a foreclosure complaint and, if it did have standing, the Bank did not establish there had been a default on the mortgage.
FAMILY LAW DOMESTIC VIOLENCE
20-2-8151 J.M.R. v. J.L., App. Div. (per curiam) (15 pp.) Plaintiff appeals from the denial of a final restraining order that she sought against her former boyfriend under the Prevention of Domestic Violence Act after the court find that while she had satisfied the predicate domestic violence act of harassment, she had failed to show that a restraining order was necessary for her protection. The panel reverses and remands, finding that the judge's determination was conclusory and not anchored in specific findings of fact; that while he appeared to consider the totality of the parties' relationship in finding the predicate act of harassment, he appeared to ignore plaintiff's testimony regarding the numerous acts of violence committed by defendant and the photographs depicting injuries she testified were caused by him in assessing whether she was in need of FRO protection; that the judge's silence on the issue and ultimate decision not to issue an FRO cannot be construed as crediting defendant's general denial of physical violence; that the judge's comments appeared to manifest an unnecessarily dismissive view of the apparent domestic violence cycle involved in the parties' relationship and in so doing misconstrued the policy behind and purpose of the Act; and that plaintiff sufficiently showed that an FRO was necessary to protect her from future abuse.
45-2-8152 Spieler v. JIS Associates, App. Div. (per curiam) (7 pp.) Appellants, tenants of a housing complex managed by respondent, JIS Associates, appeal from the final determination of the Director of the Division of Civil Rights finding no probable cause to substantiate appellants' complaints of housing discrimination. Respondent denied the allegations. Respondent admitted sending appellants the notices to cease and to quit but denied they were sent for discriminatory reasons. Rather, they were sent because appellants willfully and repeatedly caused damage to the property, were abusive to employees, and did not timely pay rent. The investigators report and recommendation finding no probable cause, adopted by the Director, is neither arbitrary, nor capricious, nor unreasonable. The investigator performed a thorough investigation, interviewing other tenants and maintenance personnel. The record clearly reflects that he provided appellants more than ample opportunity to present their case and rebut the testimony and evidence presented by respondent. Appellants, however, were not cooperative with the investigator and failed to answer many of his questions. The appellate panel affirms, finding the record provides sufficient credible evidence to support the Director's conclusions.
CRIMINAL LAW AND PROCEDURE
14-2-8153 State v. Hazelton, App. Div. (per curiam) (18 pp.) Defendant appeals his convictions for conspiracy to distribute CDS, cocaine; possession of CDS, cocaine; distribution of CDS, cocaine; and distributing CDS, cocaine, within 500 feet of public housing. The panel reverses and remands because, cumulatively considered, the challenged comments of the prosecutor - references to the investigation that led to defendant's arrest as part of a guns, gangs and narcotics-related initiative, vouching for the credibility of the police, asking defendant whether "everybody" is lying except for him, and repeatedly asking defendant about his lack of income - had the clear capacity to prejudice defendant's right to a fair trial.
CRIMINAL LAW AND PROCEDURE
14-2-8154 State v. Scott, App. Div. (Fasciale, J.A.D.) (16 pp.) We focused on the mens rea needed to convict defendant of second-degree possessing, receiving or transferring a community gun, N.J.S.A. 2C:39-4a(2), and analyzed whether the state must prove that defendant knew the firearm was a community gun. We held that defendants knowledge of the communal character of a firearm is not an element of the statute. [Approved for publication.]
FEDERAL COURT CASES
ADMIRALTY CIVIL PROCEDURE
54-7-8155 Browning v. Safmarine, Inc., U.S. Dist. Ct. (Schneider, U.S.M.J.) (12 pp.) Plaintiffs complaint arises out of an accident that occurred aboard the vessel Safmarine Douala. Before the Court is Plaintiffs second motion to amend his complaint to substitute Jaco Trader Shipping, Ltd for named defendant Safmarine, Inc. The Court denied Plaintiffs first motion to amend, finding the claim against Jaco time-barred and denying plaintiffs request to relate back his amended pleading pursuant to Fed. R. Civ. P. 15(c). Plaintiff now presents evidence that Jaco and defendants were represented by the same law firm within 120 days of the institution of this action, and that the firm had knowledge of the filing of this lawsuit within 120 days after it was filed. Accordingly, the Court finds that plaintiff may use the shared attorney method to impute notice of the action to Jaco pursuant to Rule 15(c)(1)(C). The Court also finds Jaco will not be prejudiced by defending itself on the merits. Also, as the apparent actual owner of the Safmarine Douala, Jaco knew or should have known that, but for a mistake on plaintiffs part, it would have been named as a defendant. Thus, the Court finds that plaintiff meets Rule 15(c)(1)(C)(ii)s mistake provision. Plaintiffs proposed amended complaint naming Jaco as a defendant relates back under Rule 15(c)(1)(C). Plaintiffs motion is granted. [Filed November 7, 2012]
ATTORNEY/CLIENT LEGAL FEES
04-7-8156 Ciecka v. Rosen, U. S. Dist. Ct. (Simandle, U.S.D.J.) (30 pp.) This case arises from a dispute between two law firms who successively represented a personal injury client on the same matter. Plaintiffs represented Conway until he terminated his relationship with them and retained defendants. Defendants settled all of Conway's claims and plaintiffs now seek an equitable share of the fee paid to defendants based on the work that plaintifffs did in preparing Conway's case. Plaintiffs also allege that defendants tortiously interfered with their contractual relationship with Conway and with prospective economic advantage after Conway discharged and later inquired about rehiring plaintiffs. Plaintiffs' motion to remand the matter based on their claim that less than $75,000 is in dispute so that diversity jurisdiction is not present is denied since the matter was removed properly and plaintiffs may not amend their complaint now to defeat federal diversity jurisdiction. Deciding that Pennsylvania law applies to the quantum meruit claim, and because that law does not permit such an action between successive law firms, the court grants defendants' motion to dismiss that claim. However, finding that plaintiffs do state a claim for tortious interference with prospective economic advantage against defendant Rosen and his law firm, the court denies defendants' motion to dismiss this claim but grants the motion to the extent plaintiffs assert that defendants wrongfully induced Conway to terminate plaintiffs' services. [Filed November 5, 2012]
CIVIL RIGHTS SECTION 1983 POLICE
46-7-8157 Smith v. State of New Jersey, U. S. Dist. Ct. (Simandle, U.S.D.J.) (9 pp,) This action alleging violations of 42 U.S.C. section 1983 , the New Jersey Constitution, and the New Jersey Civil Rights Act and asserting claims for assault, battery, and false imprisonment arises of out plaintiff-James Smith's arrest by State Troopers. Defendants' motion for partial summary judgment is granted because the State of New Jersey, the New Jersey State Police, and Trooper Rodriguez acting in his official capacity are not persons who can be sued under section 1983. [Filed November 7, 2012]
15-7-8158 DeVito v. Zucker, Goldberg & Ackerman, U. S. Dist. Ct. (Wigenton, U.S.D.J.) (12 pp.) In this action alleging violations of the Fair Debt Collection Practices Act arising out of a Notice of Intent to Foreclose defendant sent to plaintiff in connection with a second mortgage, the court grants in part defendant's motion to dismiss. Because the NOI on its fact fails to provide the creditor's name, as required by 15 U.S.C. section 1692g(a)(2), the court finds that plaintiff has pled sufficient facts to defeat defendant's motion to dismiss this claim, despite the fact that it provides unique identifying information regarding plaintiff's loan and there is no suggestion that she was confused or misled by the lack of creditor information in the NOI. Finding that the NOI did not amount to a threat of foreclosure that defendant could not legally take or did not intend to take, the court dismisses plaintiff's claim under section 1692e(5). Finding that plaintiff's complaint does not sufficiently include details required to show a claim under section 1692e(10) because it does not allege that defendant used deceptive means to collect the debt, the court grants the motion to dismiss this claim. It also dismisses the claim under section 1692f because plaintiff does not allege that defendant engaged in any of the activities identified in the statute or otherwise unfair or unreasonable conduct. The court also denies plaintiff's motion for summary judgment on her claim under 1692g(a)(2) as premature. [Filed November 7, 2012]
CRIMINAL LAW AND PROCEDURE
14-7-8159 Smith v. Warden of Essex County Jail, U. S. Dist. Ct. (Debevoise, S.U.S.D.J.) (14 pp.) Petitioner, presently in custody for illegal re-entry after being deported as a result of his having pleaded guilty to robbery and a CDS charge, seeks a writ of habeas corpus pursuant to 28 U.S.C. section 2554, 2241, or both, and Fed. R. Civ. P. 81(a)(4), alleging that he is unlawfully imprisoned and that he is in the custody of the United States Marshal, the United States Attorney for the District of New Jersey, the New Jersey Attorney General, and the Warden of the Essex County Jail in violation of the Constitution. The court holds that petitioner has established ineffective assistance of counsel under the principles of Strickland and Padilla as now interpreted by Orocio v. United States based on his public defender's failure to advise him of the immigration consequences of his guilty plea. However, he cannot obtain relief in this proceeding since he is not in the custody of any defendant other than the United States Marshal and until the Supreme Court decides Chaidez, it is premature to decide if petitioner is in custody of the United States in violation of the Constitution or laws of the United States as required by section 2241(c)(3). [Filed November 5, 2012] [For publication]