Daily Decision Service Alert: Vol. 22, No. 8 ? January 11, 2013

 

46-2-8685 Thompson v. Township of East Brunswick, App. Div. (per curiam) (19 pp.) In this action asserting claims under 42 U.S.C. sections 1983, 1995, and 1986 based on alleged violations of plaintiff's Fifth and Fourteenth Amendment rights, as well as claims of malicious prosecution, intentional and negligent infliction of emotional distress, and violations of the Law Against Discrimination arising out of plaintiff's arrest and prosecution for theft and receipt of stolen property, plaintiff appeals from the Law Division's grant of defendants' motion for summary judgment. The panel affirms, finding that the trial court did not err in dismissing the federal civil rights claims, the malicious prosecution claim or the punitive damages claim because it correctly determined that defendant-police officers had probable cause to charge plaintiff with theft and receipt of stolen property. Nor did the trial court err in granting summary judgment to the public entity defendants on his federal claims because the evidence is insufficient to show that the actions taken by the officers constituted an official custom, policy and/or practice of the public entity defendants regarding the handling of criminal cases which would subject them to liability under section 1983.

25-2-8686 In The Matter Of The Tenure Hearing Of Jennifer O'Brien, App. Div. (per curiam) (12 pp.) Jennifer O'Brien appeals from a final determination of the Acting Commissioner of Education, which upheld her dismissal from her teaching position in the City of Paterson's school district. O'Brien posted two statements on Facebook, an internet social-networking site. The first statement was, "I'm not a teacher — I'm a warden for future criminals!" The second statement was, "They had a scared straight program in school — why couldn't [I] bring [first] graders?" The appellate panel affirms her dismissal, finding the Acting Commissioner appropriately concluded that O'Brien's Facebook postings were not constitutionally protected; the evidence established that O'Brien engaged in conduct unbecoming a teacher; and removal was the appropriate penalty.

35-5-8687 Flemington Trade Center v. Township of Raritan, Tax Ct. (DeAlmeida, J.T.C.) (13 pp.) Plaintiff challenges the imposition of roll-back taxes on the subject property for tax years 2006, 2007 and 2008. Although the evidence suggests that the property was preferentially taxed as farmland for several years without justification, its eligibility for farmland status in the years prior to 2009 is not before the court. The municipal tax assessor imposed roll-back taxes on the property after she determined in 2009 that it did not qualify to be treated as farmland because there had been a change in use of the property. The court finds the municipality has not established by a preponderance of the evidence that there was a change in use of the property. The roll-back tax statute cannot be used to ameliorate the effects of an assessor’s incorrect decision to grant a farmland assessment application for property. Absent a change in use, the assessment of roll-back taxes is not statutorily authorized. The court reverses the judgment of the Hunterdon County Board of Taxation which affirmed the imposition of roll-back taxes.

 

36-2-8688 Dodd v. Uni-Mart, App. Div. (per curiam) (9 pp.) The appellate panel affirms the order dismissing plaintiffs’ complaint filed against defendants Uni-Mart, Inc. and Exxon Uni-Mart for lack of jurisdiction. Plaintiffs, who were married residents of New Jersey, stopped at the Exxon Uni-Mart service station in East Stroudsburg, Pennsylvania, for gas. While using the restroom, plaintiff Linda Dodd fell and was injured. The complaint alleged negligence and nuisance and sought per quod damages. Uni-Mart maintains it is incorporated in Pennsylvania and had no contacts or business operations in New Jersey. Plaintiffs rely on a stream of commerce theory to support their claim that New Jersey has jurisdiction. Uni-Mart's contacts with New Jersey were limited to transient New Jersey travelers stopping for gas or other services. These contacts were insufficient to qualify as continuous and substantial contacts, such that they approximated a physical presence in New Jersey. Uni-Mart, by selling gas to New Jersey drivers, did not purposefully avail itself of the protection and benefits of New Jersey's laws and agree to submit to those laws.

 

36-2-8689 Nielsen v. Wal-Mart Store #2171, App. Div. (Fisher, P.J.A.D.) (19 pp.) The court held that a commercial condominium unit owner owed the employee of an independent contractor a duty of care regarding a hazardous condition outside the boundaries of its unit, notwithstanding that the condominium developer continued to own and had contractually assumed the duty to maintain and repair the area in question. [Approved for publication.]

 

39-2-8690 Tumolo v. Ocean County Road Department, App. Div. (per curiam) (23 pp.) In the first of these consolidated appeals, defendant-department appeals a workers' compensation judge's decision awarding Tumolo, a heavy equipment operator employed by the department, medical and temporary benefits paid for by the department for an accident that occurred while he was driving to work. In the second, Tumolo appeals the WCJ's denial of benefits payable by the Borough of Seaside Park where he served as fire chief. Finding that Tumolo was not on a special-mission at the direction of the department at the time of the accident, but was merely commuting to his place of employment, the panel reverses the award of benefits to be paid by the department. The panel affirms the denial of benefits payable by Seaside Park, finding that Tumolo's driving to his place of employment, even though driving the fire chief's truck, armed with his pager and ready to respond to a fire emergency if called, does not fit within the statutory provision of "doing public fire duty" or "injured in the line of duty."

 

46-7-8691 Brown v. Mincey, Dist. Ct. (Hillman, U.S.D.J.) (20 pp.) Plaintiff brings claims against Defendants Borough of Penns Grove and former Borough council president Carol Mincey for alleged violations of her civil rights. Plaintiff is a “citizen activist” and vice president of the Salem County Coalition. According to Plaintiff, a Complaint-Summons charging her with harassment was issued as a result of false accusations by Mincey that Plaintiff “had threatened and/or insulted her and/or made terroristic threats” during a council meeting. Plaintiff represents that she was found not guilty of the charge. Plaintiff alleges that Mincey unjustly initiated criminal charges in an attempt to stifle Plaintiff’s political activities and opposition to Mincey’s actions on the council. Here, the Court denies Defendants’ motion to dismiss Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983, which assert that Defendants violated Plaintiff’s civil rights by retaliating against Plaintiff for speaking freely about civic matters of public concern, by falsely accusing Plaintiff of harassment, and by falsely arresting and unlawfully detaining Plaintiff. The Court also denies the motion to dismiss the claim alleging that Mincey conspired to deprive Plaintiff of her civil rights in violation of 42 U.S.C. § 1983; and the conspiracy, malicious prosecution, and defamation claims under New Jersey law. [Filed December 31, 2012]

 

46-8-8692 Raeford v. Williams, Third Cir. (Sloviter, C.J.) (5 pp.) In this action alleging that defendants violated plaintiff's Fourth and Fourteenth Amendment rights by failing to ensure that the order vacating the bench warrant that had been entered against him for failure to appear at a child support hearing, which was entered into the Automated Child Support Enforcement System database, was also entered into the Sheriff's Department's computer system, resulting in his arrest and detention, and by not releasing him from custody expeditiously, the court affirms the District Court's grant of summary judgment to defendant Jane Bozinovski, a Probation Department employee who entered the order vacating the warrant into ACSES but did not print the "Notice to Vacate/Amend Bench Warrant" that could have been given to the Sheriff's Department. The court finds that Bozinovski is entitled to qualified immunity because she acted to secure Raeford's release as soon as she realized he was in custody based on the vacated warrant and because she did not intend to cause his arrest and her conduct was at most negligent and thus insufficient to establish a violation of the Fourteenth Amendment. [Filed January 9, 2013]

 

11-7-8693 Mateo Express Inc. v. Puebla Travel & Latin Music Limited Liability Co., Dist. Ct. (Thompson, U.S.D.J.) (3 pp.) Plaintiff, a licensed money transmitter, filed this breach of contract against defendant Puebla, one of its agents, and defendant Sanchez, Puebla's owner who personally guaranteed Puebla's obligations under its agreement with plaintiff, after Puebla failed to make payments to plaintiff of funds it received from the public for further transmission and for plaintiff's service fees. The court finds that Puebla's failure to make payments breached its contract with plaintiff and Sanchez's failure to make payments breached his personal guarantee. It finds that plaintiff is entitled to treble damages under N.J.S.A. 17:15C-18(c) against Puebla and Sanchez jointly and individually plus interest. [Filed January 8, 2013]

 

17-7-8694 Dattilo Realty v. Chevron, U.S.A., Inc., Dist. Ct. (Waldor, U.S.M.J.) (10 pp.) Plaintiff Dattilo Realty, L.L.C. filed a motion for leave to file a second amended complaint to add as new plaintiffs: the Estate of Rose Dattilo, Edward Dattilo and, via Guardian ad Litem, John Dattilo, Jr. in this environmental remediation case. The second amended complaint alleges: (1) breach of contract against Defendant Chevron, U.S.A. pursuant to a Lease in which Chevron was obligated to maintain and repair an underground gasoline storage system and to indemnify the Dattilos from damage to the property; (2) negligence in that Defendant negligently failed to repair and maintain the underground storage tanks; and (3) a claim for contribution under the New Jersey Spill Compensation and Control Act. Opposing the motion to amend, Defendant argues that Plaintiff delayed for three years in joining the new plaintiffs, the amendment would be prejudicial because discovery is closed and would need to be reopened, and Plaintiff failed to comply with court orders setting deadlines for amendments. The Court finds that the new plaintiffs are the same individuals who have participated in discovery to date, albeit in different standing, and there is minimal if any prejudice to Defendant. Finding there will be no undue delay or prejudice, the Court grants Plaintiff’s motion to amend. [Filed December 28, 2012]

 

17-7-8695 Raritan Baykeeper Inc. v. NL Industries Inc., Dist. Ct. (Pisano, U.S.D.J.) (52 pp.)In this environmental remediation action brought pursuant to the citizen suit provisions of the Resource Conservation and Recovery Act and the Clean Water Act, plaintiffs seek the remediation of contaminated sediments in the Raritan River and the remediation of on-site sources of contamination that discharge into the river. Defendants are past and current owners or lessees of the site at issue and highway authorities that own highways across the land. Defendants Michael Davis and James S. Simpson1 from the New Jersey Department of Transportation’s Central Region move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6); defendants New Jersey Turnpike Authority and Veronique Hakim move to dismiss pursuant to 12(b)(6); defendant Sayreville Seaport Associates, L.P. move to dismiss the amended complaint, or in the alternative, for a stay; defendant Sayreville Economic and Redevelopment Agency moves to dismiss the amended complaint, or in the alternative, for a stay; defendant Middlesex County moves to dismiss; defendants NL Industries, Inc. and NL Management Services, Inc. move for summary judgment or, in the alternative, for a stay; and defendant NL moves to dismiss the amended complaint. The court finds that NL has not established that it is entitled to judgment as a matter of law because plaintiffs' citizen suit is expressly authorized by law and the express prohibitions in the statutes do not apply to this case because neither the EPA or the State has commenced and diligently prosecuted an enforcement action, and plaintiffs have alleged sufficient facts to establish a plausible claim for relief under Rule 12(b)(6); therefore, the court denies the motions. It reserves decision on the motions for a stay and orders the parties to submit proposals regarding the parameters of a stay. [Filed January 8, 2013]

 

53-7-8696 Noven Pharmaceuticals v. Watson Laboratories, Inc., Dist. Ct. (Cavanaugh, U.S.D.J.) (16 pp.) This matter comes before the Court by request of Noven Pharmaceuticals and Watson Laboratories, Inc., and Watson Pharmaceuticals, Inc. for a claim construction hearing. A Markman hearing was held and the Court sets forth its construction of the disputed terms relating to the patents-in-suit that are directed toward a transdermal patch. [Filed December 27, 2012]

25-7-8697 Farneski v. Hunterdon County, Dist. Ct. (Irenas, S.U.S.D.J.) (43 pp.)This matter arises from plaintiff Jeffrey Farneski’s suit against defendants Hunterdon County, Office of the Hunterdon County Prosecutor, Patrick Barnes, and Daniel Hurley for violation of his civil rights and retaliation during his employment with HCPO. The court grants defendants' motion to dismiss, finding, inter alia, that (1) the First Amendment retaliation claims against Barnes and Hurley are unfounded based on the lack of any protected speech and of any attributable retaliation based on the alleged speech; (2) the First Amendment claim against Hurley based on this litigation fails because there is no evidence to support a finding that this suit is anything other than an everyday employment dispute; (3) the First Amendment claim against the county fails because the county cannot be liable under section 1983 where plaintiff has provided no evidence as to what its medical leave and internal affairs policies required, that the policies are so inadequate that the county can have expected them to be used as a means to retaliate against an employee, or that the county was deliberately indifferent to how its employees carried out these policies; (4) the Second and Fourth Amendment claims arising out of the order to turn over his personal firearms fails because nothing in the record supports an inference that he was coerced into surrendering the weapons and because the chief of police had authority in his supervisory capacity to order plaintiff to relinquish his weapons; (5) the failure to provide due process claims fails because the formal reprimand, transfer and receipt of a lower increment did not constitute demotion, discharge or lost compensation and thus did not touch an actual property interest; and (6) the conspiracy claims fail since, among other things, plaintiff does not even allege that there was any invidiously discriminatory animus behind any potential conspirators' actions. [Filed January 9, 2013] 

25-7-8698 Malave v. Freytes, Dist. Ct. (Hochberg, U.S.D.J.) (20 pp.) Cedestino Malave, William Malave, and Elvin Sanchez brought this action against Defendants Laura Freytes, the Office of the Passaic County Superintendent of Elections, and Passaic County. Freytes is the former Passaic County Superintendent of Elections and was responsible for overseeing a staff of clerks, investigators, and voting machine technicians. Plaintiffs Malave and Sanchez are former voting machine technicians for the Department of Elections and Cedestino Malave is currently an investigator. The complaint alleges that Defendant Freytes outsourced the duties of the voting machine technicians and terminated Malave and Sanchez in retaliation for complaints and grievances they had filed against Freytes about issues that they contend were matters of public concern. Because Plaintiffs do not allege that they were treated differently from others similarly situated where all of the technicians were fired, not just these plaintiffs, their equal protection claims fail. The Court dismisses Plaintiffs’ § 1983 claims and declines to exercise supplemental jurisdiction over Plaintiffs’ state law claims. Plaintiffs may pursue their claims under the state constitution and the CEPA in state court or before the PERC. [Filed December 26, 2012]

 

36-7-8699 Wisowaty v. Port Authority Trans-Hudson Corp., Dist. Ct. (Linares, U.S.D.J.) (6 pp.) Plaintiff, injured during the course of his employment with defendant, seeks reconsideration of the court's denial of his motion for partial summary judgment in this action alleging that defendant was liable for his injuries pursuant to the Federal Employers' Liability Act. The court affirms, finding no error of law in its conclusion that, under FELA, to prevail on his motion, plaintiff had to show that defendant had actual or constructive knowledge of the dangerous condition and that the cases to the contrary cited by plaintiff analyze state law claims analyzed under New Jersey law. [Filed January 8, 2013]