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Daily Decision Service Alert: Vol. 22, No. 37 ? February 25, 2013
New Jersey Law Journal
STATE COURT CASES
CIVIL PROCEDURE EXPERT WITNESSES
07-2-9105 Townsend v. Pierre, App. Div. (Fasciale, J.A.D.) (14 pp.) We reversed summary judgment and set aside a ruling that plaintiffs expert rendered an inadmissible net opinion. We held that where there is a reasonable basis for a jury to reject a credibility-based recollection of a fact witness, the expert may properly comment, in a hypothetical manner pursuant to N.J.R.E. 705, about alternative factual possibilities that have support in the record. [Approved for publication.]
CONSUMER PROTECTION PRE-EMPTION
09-2-9106 Rosen v. Continental Airlines Inc., App. Div. (Kennedy, J.A.D.) (15 pp.) We hold that plaintiffs complaint against defendant-airline arising from his inability to use a headset purchased from the airline on an earlier flight, and the refusal of the airline to sell him a new headset and alcoholic beverages on a subsequent flight without a credit card, is pre-empted by 49 U.S.C.A. § 41713(b)(1). Plaintiffs complaint alleged that defendant violated the New Jersey Consumer Fraud Act (CFA); that defendants refusal to accept cash during a flight constituted unlawful discrimination against low income individuals; and that defendant, by refusing to accept cash during the flight, prevented plaintiff from enjoying in-flight amenities, and caused plaintiff to suffer severe mental anguish and emotional distress. We affirm the Law Divisions dismissal of plaintiffs complaint, and find that plaintiffs claims under the CFA, and other state tort claims, are pre-empted by the federal Airline Deregulation Act, 49 U.S.C.A. § 41713(b)(1), and that plaintiffs claim for class certification was baseless. [Approved for publication.]
20-2-9107 Brower v. Brower, App. Div. (per curiam) (5 pp.) Plaintiff appeals the Family Part order denying his motion for a change in the residential custody of his son, who currently lives with his mother, defendant. Plaintiff's certification alleged that the child expressed a desire to live with him, and that because defendant was undergoing a divorce and the child would be changing schools, this would be the ideal time to transfer custody. The judge found plaintiff's motion papers did not establish a change in circumstances requiring either oral argument or a plenary hearing with regard to change in custody. On appeal, Plaintiff urged that the child's preference warranted an interview or a plenary hearing. Plaintiff contended that the relocation to a different school and the parents' inability to agree on where the child should live constituted changed circumstances such that oral argument, an interview, or a plenary hearing on the issue of custody was necessary. The appellate panel finds these grounds do not establish changed circumstances and affirms. The certifications did not establish substantive issues or conflicts in material facts requiring oral argument or a plenary hearing. Also, the judge reasonably exercised her discretion in denying the request to interview the child in camera where the movant's proofs fall short of the changed circumstances standard.
20-2-9108 White v. St. Paul, App. Div. (per curiam) (13 pp.) Plaintiff appeals the provisions of a Family Part order requiring her to apply for, and if eligible, enroll in NJ FamilyCare as the parties' child's health insurance provider, rather than enforce a prior order requiring defendant to obtain health insurance coverage; directing defendant to advance three months premiums on the applicable health insurance policy; requiring that the parties exchange financial information even though defendant's motion for modification of child support was denied; and only partially awarding counsel fees incurred in the enforcement application. The panel concludes that the order requiring the exchange of financial information, although no modification motion was pending, was premature and must be vacated. In all other respects, it affirms, finding no abuse of discretion regarding the insurance where defendant remains ordered to provide payment and his loss of employment, limited assets, and four additional children may preclude his ability to continue COBRA benefits for plaintiff's child, or in allowing defendant to pay premiums rather than mandating a wage execution, or in awarding less counsel fees than requested.
FAMILY LAW JURISDICTION
20-2-9109 Spierto v. Spierto, App. Div. (per curiam) (15 pp.) Defendant, a California resident, appeals the order denying his motion to dismiss, based on lack of jurisdiction, this action by plaintiff, a New Jersey resident, seeking full faith and credit of the parties final judgment of divorce entered in New York and to compel him to contribute to the college costs of their son, also a New Jersey resident. The panel finds that the trial court correctly concluded that New York no longer has continuing exclusive jurisdiction to modify the child support provisions in the FJD since it is neither the child's state of residence nor the residence of any individual contestant. However, the panel holds that the trial judge did not make sufficient findings regarding the nature, duration and extent of defendant's parenting time and other activities in New Jersey, which analysis is required to determine if minimum contacts exist to establish personal jurisdiction over defendant. It therefore remands and directs that the judge make the requisite findings regarding whether there are sufficient minimum contacts in New Jersey.
INSURANCE LAW POLICY TERMS
23-2-9110 Angelo v. County of Essex, App. Div. (per curiam) (12 pp.) This insurance matter arises from a car accident involving Michael Carlucci, who was riding as a passenger in a Nissan 350Z, owned and operated by Michael Castellano. Castellano and Carlucci were ejected from the car, and they died as a result. Castellano's Nissan was insured under a commercial auto insurance policy that Harleysville Insurance Company of New Jersey had issued to Spearhead, Inc., a store owned by Castellano's father. Although Spearhead did not own, lease, hire or borrow the Nissan and the car was not used in Spearhead's business, Harleysville's agent asked Harleysville to list the car as a covered auto under Spearhead's policy. In addition, Liberty Mutual Insurance Company had issued a personal auto insurance policy to Castellano's wife, Dawn Mullen, which was in effect when the accident occurred. Mullen's Acura was the only vehicle identified as a covered auto under the Liberty Mutual policy. The appellate panel rejects Harleysvilles argument that the trial court erred by concluding that Castellano was not entitled to coverage under the Liberty Mutual policy. Castellano was an insured under the Liberty Mutual policy; however, he was not covered for claims arising from his use of the Nissan, which did not meet the definitions of a "covered auto" in the Liberty Mutual policy.
36-2-9111 Valentin v. Township of Pemberton, App. Div. (per curiam) (4 pp.) Defendant appeals the order granting the motion of plaintiff, who had been involved in a two-car auto accident, to file a late tort claim notice where her attorney promptly obtained the police report which contained no suggestion that a public entity was directly or indirectly involved, and only six months later obtained the DWI report indicating for the first time that the other driver had been drinking at a Christmas party at her place of employment, a school in Pemberton, and a few days later moved to file a late notice. The panel affirms substantially for the reasons expressed below: there was no reason to believe from the nature of the accident or the accident report that a public entity was involved and upon learning of a potential claim, plaintiff's counsel immediately sought leave to file a late notice.
14-2-9112 State v. Makovic, App. Div. (per curiam) (11 pp.) The State appeals the Law Division order dismissing the indictment charging defendant with maintaining a facility for the manufacture of marijuana in an amount greater than five pounds or 10 plants and possession of more than 50 marijuana plants with the intent to distribute them. The panel reverses, finding that the prosecutor did not withhold evidence from the grand jurors that either directly negated defendant's guilt or was clearly exculpatory and that the Law Division misapplied its discretion and improvidently dismissed the indictment.
14-2-9113 State v. Wilke, App. Div. (per curiam) (11 pp.) Defendant Jennifer Wilke was convicted in the Law Division of the disorderly persons offense of hindering apprehension pursuant to N.J.S.A. 2C:29-3(a)(7). The genesis of the State's case is found in a municipal complaint against Michael Tirado. A bench warrant was issued and a year and a half later, police officers went to a townhouse address where they believed they might find Tirado. They encountered Wilke, who informed them Tirado was not there. However, she was then observed reentering the garage and taking something from a man who turned out to be Tirado. Because the State's proof failed to demonstrate that Wilke acted with knowledge that the police officers wanted to apprehend Tirado for an offense, the appellate panel reverses and vacates the judgment of conviction. It was both unreasonable and beyond the logical limits of the evidence to infer that Wilke knew the police were pursuing Tirado within the meaning of N.J.S.A. 2C:29-3(a)(7). Thus, the State failed to prove all of the elements of the offense beyond a reasonable doubt.
CRIMINAL LAW PROSECUTORIAL MISCONDUCT
14-3-9114 State v. Eckel, (Batten, J.S.C.) (16 pp.) The prosecutor made comments regarding the quantum, quality and significance of evidence to the grand jury subsequent to its vote to indict, but prior to its return of the indictment. The defendant motioned to dismiss the indictment on this ground. The court granted the motion, finding such comments constituted prosecutorial misconduct that impermissibly intruded on the function of the grand jury. [Decided Sept. 6, 2012.] [Approved for publication.]
FEDERAL COURT CASES
42-6-9115 In re: Herchakowski, Bankruptcy Ct. (Ferguson, U.S.B.J.) (12 pp.) In connection with a home remodeling project, the Lloyds sued Herchakowski, the Debtor, for violations of the New Jersey Consumer Fraud Act. A consent order of partial summary judgment was entered. Plaintiffs seek to have their debt declared nondischargeable under § 523(a)(2)(A) or (a)(6) or to deny the debtor a discharge under § 727(a)(4). Count Five of the complaint alleges the Debtors failure to list assets in his bankruptcy petition, schedules, and Statement of Financial Affairs (SOFA) violated 11 U.S.C. § 727(a)(4)(A). Considering the answers in the SOFA, the court finds Herchakowski knew (or recklessly disregarded) that his sworn statements were false. While an inaccurate SOFA alone may not justify discharge, a series or pattern of errors or omissions may give rise to an inference of intent to deceive. Here, there is a clear pattern of careless and inaccurate statements. The number of errors coupled with inaccurate amendments compels the conclusion that Herchakowskis disregard for the truth equates to fraudulent intent. The court finds Plaintiffs have established the elements of § 727(a)(4) and enters judgment for the Lloyds on Count Five. The court declines to rule on the § 523 counts; a denial of discharge renders all pre-petition debt nondischargeable. [Filed February 19, 2013]
42-6-9116 In re Kesler, U. S. Bankruptcy Ct. (Kaplan, U.S.B.J.) (17 pp.) The debtors, who had executed a mortgage with Chase, later assigned to Freddie Mac and insured by Stewart Title, part of the proceeds of which were to be used to satisfy First Financial's prior home equity line of credit, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Stewart filed an adversary proceeding alleging that debtors failed to terminate the line of credit, forcing it to remit funds to satisfy the obligation. First Financial also filed an adversary proceeding claiming that debtors committed a fraud by taking additional advances when they knew, or should have known, that they had to terminate the line of credit as a condition of the loan. The debtors filed third-party complaints against Chase and Freddie Mac alleging breach of contract, violation of New Jersey's Consumer Fraud Act and negligence. The court now grants Chase's and Freddie Mac's motions to dismiss the claims against them, noting that the third-party actions fall outside the scope of Rule 14; the court is without subject matter jurisdiction to hear the third party actions pursuant to the Rooker-Feldman doctrine where Chase and Freddie Mac proceeded through state court and obtained a judgment of foreclosure; debtors are precluded from bringing the third-party actions under the doctrine of judicial estoppel; and the claims are subject to dismissal under Rule 12(b)(6) since debtors fail to plead enough facts to state a plausible claim to relief. [Filed February 21, 2013]
CIVIL PROCEDURE CLASS ACTIONS ARBITRATION
07-7-9117 Muhammad v. Delaware Title Loans, Inc.,U.S. Dist. Ct. (Bumb, U.S.D.J.) (5 pp.) Plaintiff filed a class action complaint alleging that Plaintiff and a class of similarly situated individuals were victims of usurious and fraudulent loans issued by Defendants. Plaintiff entered nine short-term loan agreements, each containing an arbitration clause. Two of the loan agreements contain express class action waivers; the other seven are silent on the issue of class waiver. Defendants filed a motion to compel individual, as opposed to class, arbitration of all claims arising under the loan agreements. Magistrate Judge Donio found that: (1) all of Plaintiffs claims were subject to arbitration; (2) Plaintiff was obligated to initiate individual arbitrations of her claims based on agreements in which class arbitration was expressly waived; and (3) whether Plaintiffs claims based on agreements that were silent as to class arbitration could proceed as a class was a decision for the arbitrator. Defendants filed for reconsideration of Judge Donios order to the extent it held that, where arbitration agreements are silent as to class arbitration, the propriety of class arbitration is an issue for the arbitrator, and not the court, to decide. The Court affirms, finding Third Circuit precedent holds that this issue is exclusively for the arbitrator to decide. [Filed February 21, 2013]
46-8-9118 Vaticano v. Township Of Edison, Third Circuit (Hardiman, U.S.C.J.) (14 pp.) Carmelo Vaticano appeals the District Courts summary judgment dismissing his civil rights claims against Appellees Township of Edison, Jun Choi, and other municipal officials. In 2006, when Vaticano was a Deputy Police Chief, Jun Choi became the Mayor of Edison Township. Vaticano had supported Chois opponent in the primary election of 2005. The gravamen of Vaticanos case is that from 2005 to 2009, Mayor Choi devised and implemented a scheme to elevate an unqualified supporter to Chief of Police while denying Vaticano his rightful promotion to Chief. Vaticano also alleges that Choi and his supporters punished him for his lack of political support for the Mayor by assigning Vaticano to demeaning tasks that were below his rank and experience and by paying him less than comparable officers. The District Court granted the Appellees motion for partial summary judgment, dismissing Vaticanos § 1983 claims. The circuit panel affirms, agreeing with the District Court that Vaticano failed to marshal facts sufficient for a reasonable jury to find that he was discriminated against based on his political beliefs or punished for exercising his First Amendment rights. [Filed February 20, 2013]
51-7-9119 Ferguson v. Elwood, U. S. Dist. Ct. (Thompson, U.S.D.J.) (11 pp.) Ferguson, a citizen of Jamaica, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2241 challenging his continued detention without a bond hearing. Finding that he is not subject to mandatory detention under section 8 U.S.C. section 1226(c) based on his 2002 and 2004 convictions because the Immigration and Customs Enforcement did not immediately place him into custody when he was released from jail on those allegedly removable offenses more than 10 years ago, the court grants the petition for habeas corpus and directs that an Immigration Judge provide petitioner with an individualized bond hearing pursuant to 8 U.S.C. section 1226(a)(2). [Filed February 22, 2013]
LABOR AND EMPLOYMENT
25-7-9120 May v. Borough of Pine Hill, U. S. Dist. Ct. (Irenas, S.U.S.D.J.) (14 pp.) In this action alleging sexual harassment and retaliatory dismissal in which the court previously denied defendants' motions for summary judgment on plaintiff's claims under the Law Against Discrimination and her Conscientious Employee Protection Act claims against defendants Costantino and Pine Hill, defendants move for reconsideration of the denial of summary judgment on the CEPA claim against Costantino and Pine Hill and to dismiss. The court grants the motion for reconsideration to the extent that the portion of the court's opinion that relied on certain findings of the Administrative Law Judge, which were overturned by the Director of the Division of Local Government Services, Department of Community Affairs, is withdrawn. However, the court affirms its prior denial of summary judgment on the CEPA claim, finding that the court did not err in relying on the fact that the DCA renewed May's tax collector's license and her deposition testimony regarding whether defendants' proffered non-discriminatory reason for her termination was pretextual. The court denies the motion to dismiss, finding that the interests of judicial economy, convenience, and fairness weigh heavily in favor of the court exercising its discretion to retain jurisdiction. [Filed February 22, 2013]