ALM Properties, Inc.
Page printed from: http://www.njlj.com
Select 'Print' in your browser menu to print this document.
Daily Decision Service Alert: Vol. 22, No. 121 - June 24, 2013
New Jersey Law Journal
STATE COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-2-0397 Amore v. Group One Automotive Inc., App. Div. (per curiam) (15 pp.) In this action alleging wrongful termination, defendants appeal the trial court's denial of their motion to dismiss the complaint and compel arbitration. The panel reverses, finding that nothing supports the proposition that plaintiff was forced or coerced to execute the Employee Acknowledgment and Agreement which contained an arbitration agreement or that he was denied the opportunity to review that document before signing it. His signature on the EAA follows an explicit affirmation that he read and agreed to be bound by the agreement and had full opportunity to ask question about its terms; the written document refutes any inference that plaintiff thought it was merely an acknowledgment of receipt of the employee handbook; the arbitration provision was prominently placed on the first page of the EAA and headed in bold print by the label "Arbitration Agreement;" and the terms of arbitration were neither hidden nor elusive. The panel finds that plaintiff's signature is the beginning and end of the analysis and the circumstances do not permit a conclusion that fraud occurred.
17-2-0398 Linden Roselle Sewerage Facility v. New Jersey Department of Environmental Protection, App. Div. (per curiam) (16 pp.) The New Jersey Department of Environmental Protection (DEP) commenced a lawsuit, pending in the Law Division (Passaic River litigation), which seeks relief under the common law and the New Jersey Spill Compensation and Control Act, regarding the alleged discharging of toxic chemicals from manufacturing facilities in Newark. Defendants Maxus Energy Corporation and Tierra Solutions, Inc. filed third-party complaints in the Passaic River litigation against public and private entities, seeking contribution pursuant to the Spill Act and the Joint Tortfeasors Contribution Act, alleging they contributed to the contamination alleged in the DEP's complaint. Many of the third-party defendants moved for dismissal of the Spill Act contribution claim. The Law Division judge denied the motion, relying on the Passaic River litigation's special master's recommendation, which was based on an interpretation of the words "sewage" and "sewage sludge" in an exception in the Spill Act, as interpreted in N.J.A.C. 7:1E-1.6. The third-party defendants did not seek leave to file an interlocutory appeal. Instead, some of them filed this appeal seeking a determination of the validity of the N.J.A.C. 7:1E-1.6 definitions of “sewage” and “sewage sludge.” The appellate panel dismisses the appeal which ostensibly seeks review of an agency regulation as of right but, in actuality, is an appeal of an interlocutory order entered in the Passaic River litigation.
20-2-0399 J.D.G. v. R.P.G., App. Div. (per curiam) (13 pp.) Defendant appeals from a final restraining order, entered pursuant to the New Jersey Prevention of Domestic Violence Act, contending that the Family Part judge erred in relying on allegations plaintiff had previously included when she filed a Pennsylvania protection from abuse petition, which was dismissed with prejudice. The panel affirms substantially for the reasons expressed below. It adds, inter alia, that giving preclusive effect to the Pennsylvania order would run counter to the public policy of New Jersey and the protective purposes of the PDVA since that action was dismissed because plaintiff failed to appear and there was no adjudication on the merits of plaintiff's request for protection.
20-2-0400 Musa v. Musa, App. Div. (per curiam) (14 pp.) Defendant Paul Musa appeals from an order denying his motion to vacate an order that obligated him to satisfy equitable distribution, granting plaintiff Dollie Musa possession of the marital home, and awarding plaintiff $875 in counsel fees. The appellate panel affirms in part and reverses in part. The panel agrees with Paul that the record is unclear as to the basis upon which the trial judge granted Dollie possession of the marital home. The Final Judgment of Divorce is clear that Paul was granted exclusive possession of the home until such time as their daughter completed college or professional school. Thereafter, the parties were to either buy out one or the other's interest or sell the property and equally divide the net proceeds. The panel reverses the portion of the order granting Dollie possession of the marital home. On remand, the trial court must give further consideration of Dollie's request for possession of the house and the previously ordered equitable distribution of the property.
20-2-0401 New Jersey Division of Youth and Family Services v. B.M., App. Div. (per curiam) (4 pp.) The judge's finding of abuse or neglect, based chiefly on the mother's drug use while pregnant, is vacated in light of N.J. Div of Youth & Family Servs. v. A.L. and the matter is remanded for further proceedings.
LABOR AND EMPLOYMENT
25-2-0402 In the Matter of Valentin, App. Div. (per curiam) (6 pp.) Jose Valentin, a senior corrections officer employed by the Adult Diagnostic and Treatment Center (ADTC), appeals the Civil Service Commission's decision to terminate his employment. The ADTC removed Valentin from his position for conduct unbecoming an employee, and other sufficient cause, based on an incident during which Valentin was accused of interfering with Perth Amboy police officers acting in their official capacity. Because the Commission's findings are based on substantial credible evidence and the discipline imposed was not arbitrary, capricious or unreasonable, the appellate panel affirms.
35-5-0403 Al-Yousefy v. Paramus, Tax Ct. (Nugent, J.T.C.) (24 pp.) Plaintiff challenges the 2009 and 2010 tax assessments on his property. Rejecting plaintiff's claims that the assessor's bias against him resulted in his home being assessed disproportionately higher than the others in the neighborhood, the court weighs the evidence of value as presented by the parties' experts, the assessor and plaintiff and concludes that, using the sales comparison approach, neither party proved by a preponderance of the evidence that the assessments are incorrect and that relief is warranted. The assessments are affirmed. [Filed June 6, 2013]
CRIMINAL LAW — SENTENCING
14-1-0404 State v. Tedesco, Sup. Ct. (Rabner, C.J.) (30 pp.) A criminal defendant does not have an absolute right to be absent from his sentencing hearing. Trial judges have discretion to decide whether to accept a defendant’s waiver of the right to be present. In an attempt to justify a waiver, a defendant must advance specific reasons that demonstrate special circumstances. Judges must consider various concerns, including the interests of the public, the defendant, the victims and the state.
FEDERAL COURT CASES
42-8-0405 In re Jones, Third Circuit (per curiam.) (3 pp.) Appellant Jean Jones, proceeding pro se, appeals from the District Court’s dismissal of her appeal from a decision of the Bankruptcy Court for the District of New Jersey. On March 11, 2009, the Bankruptcy Court issued a ruling denying Jones’ motion for accounting. The Bankruptcy Court denied Jones’ motion for reconsideration on October 29, 2009. Jones was discharged from bankruptcy on March 2, 2012, and a final decree was entered on March 5, 2012, closing the case. On June 6, 2012, Jones filed a notice of appeal of the Bankruptcy Court’s order denying her motion for reconsideration. Jones argued that the Bankruptcy Judge engaged in fraud by ruling against her. Finding no error in the Bankruptcy Court’s ruling, and no evidence of fraud, the District Court dismissed Jones’ case. Assuming the Bankruptcy Court’s October 29, 2009 order was interlocutory, Jones had 14 days from entry of final judgment to seek review of that order. Jones did not file her notice of appeal until more than three months after final judgment was entered. Her notice of appeal was therefore untimely. Because the District Court did not have jurisdiction to review the Bankruptcy Court’s order, the circuit panel here is also precluded from reviewing the merits of the order and affirms the judgment dismissing Jones’ case. [Filed May 24, 2013]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-0406 Mitsui O.S.K. Lines Ltd. v. Evans Delivery Co. Inc., Dist. Ct. (Debevoise, S.U.S.D.J.) (16 pp.) plaintiff, which used the services of defendant-motor carriers to transport cargo shipments from foreign countries to inland destinations, filed an action asserting claims for, inter alia, fraud and breach of contract, after learning that defendants had been diverting shipments to locations closer than their intended destinations but billing as if the goods had been delivered to their intended destinations. Defendants removed the action and plaintiff moves to remand it. Defendants filed an action seeking declaratory relief against Mitsui's claims in the first action which Mitsui moves to dismiss. The court grants Mitsui's motion to remand, finding that there is no complete preemption of Mitsui's claims under the Interstate Commerce Commission Termination Act of 1995, which thus cannot serve as a basis for removal and that the Carriage of Goods by Sea Act cannot serve as a basis of removal since the parties have not contractually stipulated that it extends to inland transportation in furtherance of maritime contracts. Nor is there complete diversity of the parties. The court grants the motion to dismiss the declaratory judgment action in light of the parallel state court proceeding involving the same parties and claims. [Filed June 10, 2013] [For publication]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-0407 Ortiz v. K-Hovnanian Homes, Inc., Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Plaintiffs brought this action to recover damages for personal injuries against defendants K-Hovnanian Homes, Inc., d/b/a K-Hovnanian Four Seasons (“Hovnanian Entity”), and Anchor Wood Framing Corp. (“AWF”). Plaintiffs, pursuant to their own allegations and the Court’s own research, are deemed to be citizens of Pennsylvania. Plaintiffs assert that the Hovnanian Entity “is a corporation who regularly conducts business in the state of New Jersey at the [New Jersey] address [listed on the Complaint];” (2) AWF “is a New Jersey Corporation who regularly conducts business in the state of New Jersey at the [New Jersey] address [listed on the Complaint];”, and (3) “Defendants . . . are corporations who are registered to do business in New Jersey”. Assuming that the Hovnanian Entity and AWF are corporations, plaintiffs have failed to allege the states in which each defendant is incorporated, and has “its principal place of business”, as opposed to an address where each defendant regularly conducts business. Because Plaintiffs have failed to show that complete diversity of citizenship exists, the Court dismisses their complaint without prejudice. [Filed May 28, 2013]
46-7-0408 Artis v. McCann, U. S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Plaintiff, a civilly committed patient at the Special Treatment Unit in Avenel, filed this 42 U.S.C. section 1983 action against several corrections officers for violation of his constitutional rights. The court grants the motion to dismiss the use of excessive force complaint against defendant McCann as the only allegation against her is that she "shoved" plaintiff. It denies the motion to dismiss this claim filed by the other defendants, finding that, construing all inferences in plaintiff's favor, an issue of fact exists as to whether they used excessive force in the incident involving plaintiff. Defendants' motion for summary judgment finding that plaintiff is not entitled to compensatory damages is denied since plaintiff is not a prisoner and 42 U.S.C. section 1997e(e) therefore is not applicable. The motion seeking a finding that he is not entitled to punitive damages is denied at this time because plaintiff's deposition testimony and other evidence would permit a jury to find that defendants acted with the requisite malice, intent, and evil thought to award punitive damages and there are a large number of disputed facts which remain to be decided. [Filed June 10, 2013]
16-8-0409 Gillespie v. Janey, Third Cir. (per curiam) (5 pp.) Pro se plaintiff appeals the District Court's denial of her motion to vacate the judgment dismissing this action alleging various violations of her constitutional, civil, and statutory rights arising from tenure charges filed against her by the Newark school district. The Third Circuit affirms, finding that plaintiff cannot meet the demanding standard of proof required to show fraud upon the court as the District Court dismissed the complaint on the grounds that the claims were either time-barred or premature, and the allegedly fraudulent documents cited by plaintiff had no bearing on the propriety of that ruling. Nor is plaintiff entitled to relief on the ground that the judgment is void since the court had jurisdiction over the complaint because plaintiff included claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act and alleged violations of her constitutional rights; her claim that the judgment had been voided by certain state Appellate Division opinions is an attack on the court's reasoning, not its authority to render a judgment; and many of her contentions are the same arguments are the same arguments that were rejected when her complaint was dismissed. The court denies defendants' motion for damages and costs pursuant to Rule 38. [Filed June 7, 2013]
LABOR AND EMPLOYMENT
25-7-0410 Bravo v. Union County, Dist. Ct. (Debevoise, U.S.D.J.) (23 pp.) This matter arises out of the discipline and ultimate termination of Plaintiff’s employment with the Union County Board of Elections (“BOE”). Plaintiff filed a complaint against Union County, the BOE, and Dennis Kobitz, asserting claims under the Family Medical Leave Act (“FMLA”), and the New Jersey Law Against Discrimination (“NJLAD”). The Union County Board of Elections and move for summary judgment on all of Plaintiff’s claims, while Plaintiff moves for summary judgment on her claim for FMLA interference. Defendants’ motion is granted with respect to Plaintiff’s NJLAD claims in their entirety, and her FMLA claims, as they relate to her surgery, but denied with respect to her other FMLA claims. Plaintiff’s motion is denied in its entirety. [Filed May 23, 2013]
LABOR AND EMPLOYMENT
25-7-0411 Lampon -Paz v. Department of Homeland Security, Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Reading pro se plaintiff's complaint as an appeal of the decision of the Merit Systems Protection Board and as asserting causes of action under seven federal statutes and five common law tort theories, the court grants the federal defendants' and the State of New Jersey's motions to dismiss, finding that it does not have jurisdiction over the MSPB appeal because MSPB decisions may only be reviewed by the United States Court of Appeals for the Federal Circuit, and that the remaining claims cannot proceed because plaintiff failed to state a claim upon which relief can be granted. The complaint does not contain a single allegation about the State of New Jersey and the only allegation that pertains to the federal defendants is an allegation that the Social Security Administration gave plaintiff full benefits but such an action does not give rise to any type of liability. The dismissal is with prejudice as the court finds that further amendments would be futile. [Filed June 7, 2013]
14-7-0412 United States of America v. Roque, Dist. Ct. (McNulty, U.S.D.J.) (11 pp.) Defendants, the Mayor of West New York and his son, are charged with seeking to disable a website critical of the mayor's administration and to harass persons associated with the website. The current motions are directed to the sufficiency of the indictment. The court finds that, inter alia, the allegations encompass a set of facts that, if proven, would make out a violation of the Computer Fraud and Abuse Act that would fall within the Commerce Clause power; that the indictment has sufficiently pled the charges of conspiracy to gain access to Hotmail and Facebook to damage protected computers and to harass and of unauthorized access to Hotmail to damage protected computers and to harass; and the indictment is not duplicitous. The court exercises its discretion to require a bill of particulars as to count 2 of the indictment, ordering the government to prepare a bill of particulars (a) listing each act of unauthorized access that is charged substantively in Count 2 and, as to each, (b) stating whether the government contends that defendant(s) did it in furtherance of a CFAA “damage” offense; (c) stating whether the government contends that defendant(s) did it in furtherance of state-law “harassment” offense. The court denies defendant Joseph Roque's motion to strike the "a/k/a" names in the caption of the indictment. [Filed June 6, 2013]