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Daily Decision Service Alert: Vol. 22, No. 83 — April 30, 2013
New Jersey Law Journal
STATE COURT CASES
07-2-9778 Ridgewood Avenue Shopping Center LLC v. I Scream LLC, App. Div. (per curiam) (14 pp.) In this action alleging that defendants failed to pay rent due, in which defendants filed a pro se answer alleging that it vacated the premises because plaintiff had failed to make repairs required by the lease, resulting in damage to defendant's business, and which resulted in an arbitration award of $0 to plaintiff, defendants appeal the trial court's vacation of their demand for trial de novo and the denial of their motion for leave to file an amended answer, counterclaim and third-party complaint, and the denial of their motion for reconsideration. The panel affirms because defendants never served their demand on plaintiff and failed to provide any explanation for this failure, also failed to serve their answer, and there has been no substantial compliance with the service requirement. The panel finds that to grant relief would reward non-compliance with the rules and encourage gamesmanship.
ELECTION AND POLITICAL LAW
21-2-9779 Abernathy v. Garcia, App. Div. (per curiam) (6 pp.) Carmelo Garcia seeks an emergent appeal of the April 19, 2013 Law Division order finding him ineligible pursuant to N.J.A.C. 4A:10-1.2(b) to run as a candidate in the Democratic Party primary for Member of the New Jersey General Assembly for the Thirty-Third Legislative District. The Hudson County Democratic Organization (HCDO) seeks an emergent appeal from the provision of the order denying its request to intervene. Respondents Jerome Abernathy, James Castiglione, Avi Ohring, Sheilah Scully and Vasudev Trivedi are registered Democrats who reside in the Thirty-Third Legislative District. Respondents challenged Garcia's certification on his nominating petitions stating that he is qualified to run for the office of Member of the New Jersey General Assembly. The appellate panel finds the trial court erred in preventing Garcia from running for office by enforcing a provision of the New Jersey Administrative Code that is based on an outdated section of the Hatch Act, which prevented an individual from running for partisan office if his salary was paid in part by federal funds. The Hatch Act Modernization Act of 2012 now permits Garcia to run for partisan office as long as his salary is not entirely paid with federal funds. The panel grants Garcia's and HCDO's motions for an emergent appeal, consolidates the appeals and reverses the order finding Garcia ineligible. HCDOs motion is moot.
20-2-9780 In re: D.D., App. Div. (per curiam) (17 pp.) Defendant T.M., a non-relative resource parent, appeals the decision of the Department of Children and Families (Division) removing minor D.D. from her care and placing her into the home of another resource parent for adoption. She argues that her due process rights were violated and the Division's decision was not in the best interest of D.D. The Law Guardian supports the removal on appeal. The appellate panel affirms, finding the evidence supports the Division's decision to remove D.D. from the resource home of T.M. Among other things, the evidence demonstrates T.M.'s failure to abide by the approved case plan and her unwillingness to accept the services offered by the Division.
20-2-9781 Stephens v. Stephens, App. Div. (per curiam) (18 pp.) In this post-judgment matrimonial case, defendant Andrew J. Stephens, II appeals from an order requiring him to pay plaintiff Martha Jean Stephens $540 for their children's tutoring expenses and $1431 toward her credit card debt, and requiring him to pay off her student loan of $13,780.28. He also appeals from an order denying his application for emergent relief. Martha cross-appeals from the orders denying her counsel fee application, granting Andrew's application to supply the children with a cell phone, denying her application to garnish defendant's salary, requiring her to disclose her home address despite the existence of a final restraining order, and awarding Andrew $1000 in counsel fees. The panel affirms in part, reverses in part, and remands in part, finding, inter alia, no error in requiring Martha to allow the children to use a specific cell phone provided by Andrew to speak with him; on remand the court must undertake the analysis required by Sacharow v. Sacharow concerning whether disclosure of the address where the children are staying would be in the children's best interests; the visitation issue has not been adequately addressed and that matter is remanded for reconsideration; and the court did not abuse its discretion in declining to recast future tutoring expenses as child support which would be enforced through garnishment.
LABOR AND EMPLOYMENT
25-2-9782 Collins v. P.I.E. Nationwide/New Jersey Self-Insurers Guaranty Association, App. Div. (per curiam) (10 pp.) Appellant Collins appeals from the order of the Division of Workers' Compensation, dismissing with prejudice his Application for Review or Modification of Formal Award. The primary question presented on appeal is whether Collins, whose injury occurred before his employer, P.I.E. Nationwide (P.I.E.), filed for bankruptcy and before it became a member of the New Jersey Self-Insurers Guaranty Association , is eligible for payment of workers' compensation benefits by the Association. The judge of compensation determined that, since the accident occurred before P.I.E. was a member of the Association, Collins is not entitled to benefits from the Association and that his application for review should be dismissed. The appellate panel concludes that the statute imposes a limitation of October 1, 1990 for obligations of insolvent members - not for the occurrence of compensable accidents. The Association is obligated to cover compensation payments owed by an insolvent member whose employees were injured before October 1, 1990, even if the employer was not a member at the time of the injury. In December 1989, Collins suffered a compensable accident arising out of the course of his employment with P.I.E. The appellate panel accordingly reverses and remands.
LABOR AND EMPLOYMENT
25-2-9783 Reilly v. Village of Ridgewood, App. Div. (per curiam) (3 pp.) In this action alleging violations of the Conscientious Employee Protection Act, plaintiff, a fireman employed by defendant, appeals the trial court's grant of remittitur, reducing the jury's award of $3,500,000 for emotional distress to $500,000 after finding the award to be shockingly high. Plaintiff also appeals the court's calculation of post-judgment interest based on the reduced award rather than the initial award. The panel affirms substantially for the reasons expressed below.
27-2-9784 Lamar Enterprises, LLC v. SES Properties, LLC, App. Div. (per curiam) (5 pp.) On July 22, 2011, plaintiff Lamar Enterprises, LLC, obtained a judgment by default in the amount of $108,804.51 against its former tenant SES Properties, LLC, and William Spencer, trading as Smoothie Factory. The judgment was docketed on August 17, 2011, and a writ of execution issued October 20, 2011. On January 30, 2012, a wage garnishment order was entered against Spencer. Defendants filed a motion objecting to the garnishment, seeking a stay of execution, and a hearing to address the amount of the judgment. The court denied the application and the motion for reconsideration. The appellate panel affirms, finding Judge Brennan correctly noted that defendants could not, post-judgment, directly attack the merits of the judgment. Defendants had an opportunity to file an answer, or take an appeal, and did neither. Nor did they file a motion to set aside the judgment. In addition, Spencer's proofs failed to demonstrate any inequity in the wage garnishment.
04-2-9785 Pinson v. Arzad, App. Div. (per curiam) (5 pp.) This action arose from an automobile accident in which plaintiff Aisha Pinson was the driver and her mother, plaintiff Rhonda Pinson, was a passenger in a vehicle rear-ended by a vehicle driven by Naveem Gunti. Plaintiffs retained the defendant-attorneys. In this appeal, plaintiffs argue that the judge erred in dismissing their professional negligence claim against defendants, without a formal motion, immediately prior to the commencement of the trial because they intended to attempt to prove professional negligence without expert testimony. Rhonda's claims were settled in 2008. Plaintiffs filed this action in 2010, alleging professional negligence and violations of the Rules of Professional Conduct (RPC). Although the impetus for this suit may have been plaintiffs' claim that defendants failed to remit all of the settlement funds due Rhonda, on the day of the aborted trial, plaintiffs' counsel acknowledged that all funds due Rhonda had been turned over. Nonetheless, plaintiffs sought to pursue their claim that defendants committed RPC violations. The judge correctly held that, without expert testimony, the jury would not be permitted to determine whether defendants were professionally negligent as a result of alleged RPC violations or whether their alleged negligence was the proximate cause of any damage to plaintiffs.
35-5-9786 Phillipsburg Riverview Organization, Inc. v. Town Of Phillipsburg, App. Div. (Axelrad, P.J.A.D.) (11 pp.) In this local property appeal, the issue is whether the taxpayer, a not-for-profit corporation organized under the laws of New Jersey and granted § 501(c)(3) non-profit charitable status, that operates a community arts center, satisfied the third prong for an exemption under N.J.S.A. 54:4-3.6, i.e., that the operation and use of the property is not conducted for profit. Plaintiff Phillipsburg Riverview Organization, Inc. challenged the property tax assessment for the 2010 tax year on its property located in Phillipsburg. Plaintiff contended the subject property was statutorily exempt as an arts center open to the public, utilized to support and promote performing and visual arts by providing affordable studio space and creating community-based arts programs. The burden is on plaintiff to prove it qualifies for a tax exemption, and as noted by Judge Bianco, plaintiff failed to prove that the various dancers, artists, and teachers did not use the facility to earn a profit. The Tax Court found plaintiff did not carry its burden of proof, and the appellate panel affirms. It is of no moment that the commissions and fees received by plaintiff went towards the maintenance and utility costs of the building since the artists and teachers derived pecuniary profits from their use of the facilities.
35-2-9787 Schweitzer-Mauduit International Inc. v. Director, Div. of Taxation, App. Div. (per curiam) (23 pp.) Plaintiff appeals the Tax Court's determination after a trial that plaintiff owes the Division of Taxation $24,419.84 in net unpaid sales and use taxes, plus a penalty and interest. The panel affirms, except to correct a small mathematical error, finding that the Tax Court had reasonably concluded that plaintiff's witness failed to establish the statutory requirements for exemption under N.J.S.A. 54:32B-8.13(a) of the disputed items and that the trial judge did not err when, in calculating the refund due to overpayments, the judge did not extrapolate the overpayments in the sample month over the audit period since N>J.S.A> 54:32B-20(a) mandates a refund only for those taxes proven to have been actually collected or paid. Moreover, plaintiff's request for an additional refund based on an extrapolation theory was untimely in substantial part.
36-2-9788 Rockemore v. AMBA Corp., App. Div. (per curiam) (10 pp.) Pro se plaintiff appeals the involuntary dismissal of his tort action, filed after he allegedly slipped and fell on an exterior staircase sprinkled with calcium chloride while a guest at defendants' motel. The panel affirms, finding that the trial judge did not abuse his discretion in barring plaintiff's medical expert from testifying to opinions not provided to the defense in discovery, or in concluding that plaintiff had failed to establish a prima facie case where, since the ruling prevented the expert from providing any opinion as to causation, plaintiff did not call him.
39-2-9789 Executrix of the Estate of Bellino v. County of Hudson, App. Div. (per curiam) (26 pp.) Petitioner Rosemarie Bellino, a retired sheriff's officer with Hudson County, filed five workers' compensation claims alleging two specific accidents and three occupational exposures. After completion of the trial, petitioner's counsel raised the possibility of bias on the part of the compensation judge and formally filed a motion for recusal. The judge denied the motion and subsequently found petitioner sustained her accident claim for her elbow injury and her occupational exposure claim for carpal tunnel syndrome, but dismissed the remaining claims and found petitioner was not totally and permanently disabled. The panel affirms, finding that the judge did not abuse her discretion in denying the recusal motion since neither the length nor nature of the judge's questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses. Further, the judge properly concluded the pulmonary claims were time-barred and otherwise not cognizable because there was no expert testimony causally relating the workplace conditions, about which petitioner complained, to her specific condition. Likewise, none of plaintiff's experts established a causal connection, to a reasonable medical probability, to the claimed conditions an each expert noted that petitioner's conditions could have equally been attributed to other non-work related factors, such as her age, obesity, pre-existing asthmatic condition, residuals of her bunionectomy, cancer and history of smoking.
14-2-9790 State v. Turner, App. Div. (per curiam) (17 pp.) After a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance ("CDS"), specifically heroin (count one); third-degree possession of CDS (heroin) with the intent to distribute (count two); and third-degree possession of CDS (heroin) with the intent to distribute within a school zone (count three). Although defendant concedes that he was in possession of the heroin, he argues that his convictions on the intent-to-distribute offenses in counts two and three should be set aside because of alleged trial errors. The appellate panel reverses defendant's convictions on counts two and three because the trial court erroneously and prejudicially allowed a police officer presented by the State solely as a lay witness to provide, in essence, expert opinions about defendant's involvement in a drug transaction, contrary to State v. McLean. Because that plain error could easily have tainted the jury's considerations of the pivotal intent-to-distribute charges, defendant is entitled to a new trial on those counts of the indictment. The panel affirms defendant's conviction on count one, the simple possession offense.
FEDERAL COURT CASES
59-7-9791 Castro v. Sanofi Pasteur Inc., Dist. Ct. (Linares, U.S.D.J.) (24 pp.) In this putative class action, plaintiffs are medical practices that purchase pediatric vaccines directly from Sanofi or VaxServe, Inc,. its wholly owned subsidiary, pursuant to contracts negotiated by Physician Buying Groups, which are privately-held, for-profit entities that negotiate group prices for their member family practices, pediatricians and other independent medical practices. Plaintiffs allege that defendant engaged in anticompetitive and exclusionary scheme to restrict competition in the pediatric meningococcal vaccine market resulting in artificially inflated prices in violation of the Sherman Act. Plaintiffs move to dismiss defendant's counterclaim alleging that plaintiffs engage in unlawful collective action through their membership in PBGs by demanding discounts that depress the price of the relevant vaccines. The court finds that defendant has not properly alleged that PBGs are illegal per se or that they unreasonably restrain trade under a rule of reason analysis and it grants plaintiff's motion to dismiss the counterclaim with prejudice to the extent that it alleges a per se antitrust violation and without prejudice to the extent is alleges an antitrust violation under the rule of reason. Plaintiffs' motion to strike defendant's nine affirmative defenses is granted as to defenses one and nine because the court has already held that plaintiffs have alleged sufficient facts to support their claims under the Sherman Act, but is denied as to defenses 2, 3, 4, 5, 6, 7, and 8 because, while they merely name legal theories, when considered in the contact of the first amended complaint and defendant's answer and counterclaim as a whole, they provide sufficient information as to why they may be applicable. [Filed December 20, 2013]
59-7-9792 Castro v. Sanofi Pasteur Inc., Dist. Ct. (Linares, U.S.D.J.) (10 pp.) In this putative class action, plaintiffs are medical practices that purchase pediatric vaccines directly from Sanofi or VaxServe, Inc,. its wholly owned subsidiary, pursuant to contracts negotiated by Physician Buying Groups, which are privately-held, for-profit entities that negotiate group prices for their member family practices, pediatricians and other independent medical practices. Plaintiffs allege that Sanofi used its market power across all relevant markets to impose bundled-pricing contracts on PBGs as a means of stifling competition from Sanofis rivals and that, under Sanofis exclusionary contracts with PBGs, buyers are penalized for purchasing any vaccine that Sanofi offers from one of its competitors, in violation of the Sherman Act. Sanofi now moves for entry of final judgment pursuant to Rule 54(b) or for leave to file an interlocutory appeal of its counterclaim alleging that plaintiffs engage in unlawful collective action through their membership in PBGs by demanding discounts that depress the price of the relevant vaccines. The court denies entry of final judgment as to the claim raised in the counterclaim because, inter alia, plaintiffs' claims and Sanofi's counterclaim raise common questions and to grant Sanofi leave to appeal at this stage would raise a substantial likelihood that the Third Circuit may have to revisit these questions on a future appeal. The court also denies leave to appeal for similar reasons, finding that it would not materially advance the termination of the litigation and because Sanofi has not established a substantial ground for difference of opinion concerning the reasons given for dismissing the counterclaim. [Filed April 9, 2013]
46-7-9793 Callaway v. New Jersey State Police Troop A, Dist. Ct. (Kugler, U.S.D.J.) (20 pp.) This 42 U.S.C. section 1983 action arises out of plaintiff's arrest and detention by the New Jersey State Police. The court finds that in alleging that while arresting him, troopers used sufficient force to tear cartilage and/or break his rib and forced his arms above his head causing severe pain, and that he was doing nothing to provoke such treatment, plaintiff has alleged facts sufficient to raise a plausible claim for relief against the unidentified troopers and the excessive force claim may proceed against them, but the Bridgeton and Woodston Barracks must be dismissed because a state, its agencies and its actors in their official capacities are not persons who may be sued under section 1983. Plaintiff's Miranda claim is dismissed because it does not state a colorable claim under section 1983. Finding that the interrogation tactics used by the state trooper defendants did not rise to the level of a coercive interrogation that shocks the conscience and resulted in a federal constitutional deprivation, the court dismisses plaintiff's due process coercive interrogation claim. Plaintiff's claim of a denial of medical care is dismissed without prejudice since, although his allegations are sufficient to support a denial of medical care claim, plaintiff fails to identify any defendants and generally refers to the Bridgeton and Woodston Barracks, which are not subject to suit under section 1983. [Filed April 9, 2013]
INTELLECTUAL PROPERTY COPYRIGHTS
53-7-9794 Malibu Media, LLC v. John Does 111, Dist. Ct. (Hammer, U.S.M.J.) (15 pp.) Defendant John Doe #10 filed a motion to quash a third-party subpoena served by Plaintiff Malibu Media, LLC, on the Internet Service Provider (ISP) for John Doe #10 in order to pursue claims for copyright infringement. Malibu Media owns certain United States Copyright Registrations, and each registration covers a motion picture (collectively, the Works). Plaintiff alleges that each defendant is liable for copyright infringement in that plaintiff did not authorize, permit, or consent to defendants copying of its Works. Each defendant is known to plaintiff only by its IP address, which is assigned by an ISP. The subpoenas seek the identities of the individuals to whom the IP addresses were registered on the dates of the alleged infringement. John Doe #10 presents four grounds to support the motion to quash: 1) the subpoena requires time and the ability to respond accordingly, which is not possible in this case; 2) the subpoena is not reasonably calculated to lead to any admissible evidence; 3) the requirements necessary to apply joinder in this case have not been met; and 4) Malibu Media does not truly seek to litigate the case, but to cut court costs, discover the identities of the John Does, and facilitate an out-of-court settlement. The Court finds these arguments are insufficient to support a motion to quash. Further, Defendant does not cite to a specific part of Rule 45 or use the language therein to support his motion. The Court finds that plaintiff may obtain the information sought by the third-party subpoena, and denies Defendants motion to quash. [Filed April 11, 2013]
LABOR AND EMPLOYMENT
25-7-9795 Cottrell v. Rowan University, Dist. Ct. (Hillman, U.S.D.J.) (4 pp.) For the second time, and almost two years after the issuance of the Courts opinion, plaintiffs are seeking reconsideration of the Courts decision granting summary judgment in defendants favor. Plaintiffs argue that defendants violated the Americans with Disabilities Act, New Jerseys Law Against Discrimination, the New Jersey Civil Rights Act, and Plaintiffs First Amendment, Due Process, and Equal Protection constitutional rights when they banned Plaintiffs from entering the Rowan University campus, and terminated plaintiff Richard Hollands employment. Plaintiffs have not presented any change in law or the discovery of any new evidence since the entry of the Courts order; nor have Plaintiffs demonstrated that the Court needs to correct a clear error of law or fact or to prevent manifest injustice. Plaintiffs motion for reconsideration is denied. [Filed April 11, 2013]
TORTS CIVIL PROCEDURE
36-7-9796 Bryson v. Diocese of Camden, New Jersey, Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff, who was born in 1961, alleges that a priest in the Defendant Diocese of Camden sexually molested him when Plaintiff was in the first grade. Plaintiff alleges negligence and breach of fiduciary duty claims against Defendant. Defendant filed a motion to dismiss arguing, inter alia, that the statute of limitations bars Plaintiffs claims because the abuse occurred over 40 years ago. Plaintiff alleges he suffered traumatic amnesia and repressed memories of the abuse until February 10, 2010, when he saw an adult male who triggered memories of the abuse. Plaintiff thus argues that he is entitled to the benefit of New Jerseys discovery rule, an equitable doctrine that tolls the applicable statute of limitations until Plaintiff knew of the wrong suffered. Plaintiff appeals Magistrate Judge Williams order limiting the scope of discovery before the Court holds a preliminary hearing on equitable tolling of the applicable statute of limitations. The Court affirms the order because it was neither clearly erroneous nor an abuse of discretion. [Filed April 11, 2013]