Daily Decision Service Alert: Vol. 21, No. 229 ? November 27, 2012

 

03-2-8284 Allied Professionals Insurance Compan, a Risk Retention Group, Inc. v. Jodar, App. Div. (per curiam) (6 pp.) Plaintiff Allied Professionals Insurance Company appeals from an order directing that it arbitrate a coverage dispute with its medical malpractice insured, defendant Joanna Jodar, in New Jersey. The arbitration clause of the policy states that any arbitration shall occur in Orange County, California. Ilene and David Schneider, intervenors, are plaintiffs in the underlying medical malpractice action brought against Jodar and Integral Acupuncture. Jodar tendered the Schneiders' claim to Allied after she renewed her policy. Allied declined coverage, asserting that Jodar made a material misrepresentation when she omitted any reference to a potential cause of action against her on the renewal application. Allied then cancelled the policy. The Schneiders filed their malpractice complaint against Jodar and Integral Acupuncture after the cancellation. Jodar and Integral Acupuncture filed a third-party complaint against Allied, seeking to compel coverage. Allied filed a separate proceeding against Jodar and Integral Acupuncture, demanding arbitration under the terms of the policy. The appellate panel finds the trial judge appropriately denied enforcement of the choice-of-forum clause in the arbitration section of the policy, relying on the hardship upon Jodar if she were required to arbitrate in California. Also, in this case, arbitration in a state other than New Jersey violates public policy.

20-2-8285 New Jersey Div. of Youth & Family Services v. H.H.M., App. Div. (per curiam) (20 pp.)"Hank" and "Tara" appeal the Family Part judgment terminating their parental rights to "Mary" and "Ned." The panel affirms as to Hank, concluding that given the evidence of his inability to remain substance- or arrest-free while his children were in placement, his having seriously injured Mary, his mental health evaluation, his domestic violence with Tara, and the expert report indicating no connection whatsoever between him and the children, DYFS carried its burden to meet the four prongs of N.J.S.A. 30:4C-15.1(a) for termination of parental rights by clear and convincing evidence. The panel remands for additional proceedings as to Tara's parental rights regarding Mary in order to permit DYFS to present proof as to the status of a prospective adoptive home for her and thus to enable the court to fairly address the fourth prong of the statutory test, i.e., whether termination would do more harm than good.

06-7-8286 Wells Fargo Bank, N.A. v. CCC Atlantic, LLC, Dist. Ct. (Irenas, U.S.D.J.) (25 pp.) This is a commercial foreclosure action. Column Financial, Inc.; KeyBank National Association; and Capmark Finance Inc. sold certain mortgage loans to Credit Suisse First Boston Mortgage Securities Corp. The property at issue in this suit, the Cornerstone Commerce Center (owned by Defendant CCC Atlantic, LLC), originally secured a commercial mortgage loan of $41 million. Before the Court are Plaintiff’s motion to appoint a receiver and Defendant’s motion to dismiss for lack of subject matter jurisdiction. The Court holds that Plaintiff Wells Fargo is an active trustee, thus its state of citizenship must be used in the diversity analysis; and Rule 19 does not require Capmark’s joinder as a party. Even assuming arguendo that Capmark is a required party, and its joinder would destroy diversity, this case could proceed without Capmark. Also, Capmark contracted-away most, if not all, of its interest in this suit. The Court concludes complete diversity of citizenship exists between the parties so that it may exercise subject matter jurisdiction. The Court also concludes that equity favors appointing a receiver to collect rents and income from, and operate and manage, the Cornerstone Commerce Center. Plaintiff’s motion to appoint a receiver is granted. Defendant’s motion to dismiss is denied. [Filed November 21, 2012]

 

46-7-8287 Flemming v. Nettleton, Dist. Ct. (Bumb, U.S.D.J.) (11 pp.) Defendants John Nettleton and Township of Pennsauken Police Department move for summary judgment on plaintiff’s claims. Plaintiff asserts a claim under 42 U.S.C. § 1983 for excessive force against Nettleton based on his shoulder injury resulting when Nettleton shut Plaintiff’s car door; and claims under state law against Nettleton and Pennsauken arising out of the episode. Nettleton’s closing of Plaintiff’s driver side door constituted a seizure because it restrained Plaintiff’s movement. The Court finds Nettleton’s actions in closing the car door were objectively reasonable under the circumstances. And there is no evidence that Nettleton exercised more force than necessary to close the door, much less evidence that would allow a jury to conclude that, notwithstanding the “allowance” afforded officers making split-second judgments like Nettleton, the force applied was unreasonably more than necessary. Plaintiff’s Section 1983 excessive force claim is dismissed. The Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims and they are dismissed without prejudice, for lack of subject matter jurisdiction. [Filed November 26, 2012]

 

24-7-8288 Neuner v. Samost, Dist. Ct. (Bumb, U.S.D.J.) (8 pp.) The Court previously ordered that Defendants furnish certain information in order to allow the Court to assess whether the parties were diverse to one another when the matter was removed from state court; and whether Defendant Quinrick Realty LLC, which was joined after this matter had been removed, should be dismissed pursuant to 28 U.S.C. § 1447(e) because its joinder would defeat diversity. The Court concludes that it had jurisdiction to hear this matter when it was removed and that Quinrick should be dismissed. The parties were diverse to one another at the time of removal. The newly submitted evidence establishes that Quinrick is a New Jersey citizen because it has only one member and he is a citizen of New Jersey. If the fraudulent joinder analysis is considered dispositive, the Court’s observation in its prior order - that Plaintiff had failed to articulate any legal theory on which it could have a claim against Quinrick on the facts alleged - compels a finding of fraudulent joinder and dismissal of Quinrick. Even if fraudulent joinder is merely a relevant factor, the Court would still dismiss Quinrick under the four 1447(e) factors. The Court orders that Quinrick is dismissed from this matter without prejudice. [Filed November 26, 2012]

24-7-8289 Giovanni v. Mentor Worldwide LLC, U. S. Dist. Ct. (Simandle, U.S.D.J.) (10 pp.) Plaintiff, a Louisiana resident, filed this tort action in state court seeking to recover damages pursuant to New Jersey state law for personal injuries caused by the defective product ObTap Transoburator sling. Defendants Mentor, Ethicon and Johnson & Johnson are all New Jersey residents. Mentor removed the action on the basis of diversity and now opposes plaintiff's motion to remand, claiming that Ethicon and J&J were fraudulently joined and it has not been properly served as it was not personally served with plaintiff's complaint. The court concludes that because Mentor appeared in state court by filing a notice of removal within 60 days of receiving plaintiff's complaint by certified mail, plaintiff's service of the complaint was effective and Mentor was properly served pursuant to New Jersey Rule 4:4-4(c) and 28 U.S.C. section 1441(b)(2), and the forum-defendant rule applies to prohibit removal of this case since Mentor is a citizen of the forum state. Plaintiff's motion to remand is granted. [Filed November 21, 2012]

 

25-8-8290 McClement v. Port Authority Trans-Hudson, Third Circuit (Fisher, U.S.C.J.) (9 pp.) McClement appeals from the District Court’s grant of summary judgment to defendant Port Authority Trans-Hudson Corporation (PATH) on her allegations of age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). PATH’s policy is that employees can be screened out of promotional opportunities for one year following a disciplinary action, which is what occurred here in relation to the first disciplinary charge against McClement. The fact that the policy is unwritten does not necessarily make it illegitimate. Because McClement failed to establish a prima facie case of discrimination, the District Court did not err in granting summary judgment to PATH on her ADEA discrimination claim. As to McClement’s claim of retaliation under the ADEA, neither adverse employment action amounted to retaliation. The second disciplinary charge was due to McClement’s display of a fraudulent parking pass, not because of her EEOC complaint. Nor was PATH’s refusal to promote McClement due to her EEOC filing. McClement’s supervisor provided a legitimate reason for not choosing her for promotion. The District Court did not err in granting summary judgment to PATH on McClement’s ADEA retaliation claim. [Filed November 20, 2012]

 

31-7-8291 Polis v. Harrah's Hotel and Casino, U. S. Dist. Ct. (Simandle, U.S.D.J.) (9 pp.) Plaintiff filed this negligence action to recover damages for injuries she sustained when she slipped on a puddle of clear liquid in defendant's passageway and fell. Finding that plaintiff has identified a material dispute of fact because a reasonable jury viewing the videotape that she provided could conclude that the puddle existed for over 38 minutes, and that if it did, then a reasonable jury could conclude that defendant acted negligently in failing to identify and clean the spill. Plaintiff has also identified a disputed issue of material fact regarding whether defendant conducted reasonable inspections where the video shows numerous employees walking through the location of plaintiff's fall but defendant does not argue that any of them actually conducted an inspection, only that they were tasked with that duty. Because plaintiff has established a genuine dispute of fact as to whether defendant had actual or constructive notice of the fluid on the floor, the court denies defendant's motion for summary judgment. [Filed November 21, 2012]