CIVIL PROCEDURE — VENUE — MOTION TO SUPPRESS
07-2-5663 Eastern Concrete Materials, Inc. v. Colonial Surety Company, App. Div. (per curiam) (17 pp.) In A-4356-08, plaintiff Eastern Concrete Materials, Inc. appeals from an order dismissing its complaint against defendant Colonial Surety Company and denying its motion to suppress. In A-3186-08, plaintiff appeals from an order dismissing a complaint filed by plaintiff against Colonial in Union County, involving the same claim asserted in A-4356-08 in Bergen County. Addressing both appeals, the appellate panel reverses and remands the order in A-4356-08 because the trial court did not squarely address the issues raised in plaintiff's motions. On remand, the trial court should determine whether suppression of Colonial's answer is warranted under Rule 4:23-5(a) because Colonial's attorney answered the interrogatories and/or because Colonial's answers were patently inadequate. The court also should determine whether Colonial's cancellation of the scheduled depositions constitutes a failure to appear. Further, the panel finds the filing of the lawsuit in the wrong vicinage does not warrant dismissal of plaintiff's claim against Colonial. In A-3186-08, the appeal is dismissed as moot.
20-2-5664 M.R. v. Thomas, App. Div. (per curiam) (4 pp.) Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act. The appellate panel reverses and remands, finding that, having received the complaint the day before the trial, defendant did not receive meaningful notice and an opportunity to adequately respond to the charges. Also, the trial judge never advised defendant of the serious consequences associated with the entry of a domestic violence restraining order, never advised defendant that he had the right to have an attorney represent him at the hearing, and never advised defendant that he could request an adjournment to consult with an attorney.
21-2-5665 Cioffi's Towing Service, Inc. v. Borough of Collingswood, App. Div. (per curiam) (9 pp.) This appeal involves a dispute between two competing bidders for a municipal contract to provide towing services. The successful bidder's proposal indicated it was in possession of two wreckers despite the specifications' mandate that three wreckers were required. The appellate panel concludes that the municipality could not waive this material nonconformity and, therefore, reverses the dismissal of the complaint and remands for judgment in favor of plaintiff, the next lowest bidder.
26-2-5666 Griffin v. Barnegat Township Committee, App. Div. (per curiam) (10 pp.) In this challenge to the sufficiency to the notice of an ordinance permitting the construction of telecommunications towers, the panel affirms the dismissal of the complaint, finding that plaintiff-owners of neighboring property were not entitled to personal notice under Robert James Pacilli Homes, LLC v. Twp. of Woolwich since it announced a new rule of law that should not be applied retroactively to the notice given here, nearly four years before Pacilli was decided.
31-2-5667 Marion v. Saduk, App. Div. (per curiam) (9 pp.) The panel affirms the trial court's grant of summary judgment dismissing this personal injury action, agreeing that plaintiff's familiarity with the staircase in defendant's home, on which she fell while a guest in his home, negated his duty to warn of its alleged defects.
31-2-5668 Virduet v. St. Mary Hospital, App. Div. (per curiam) (20 pp.) Eighty-four-year old Consuelo Muniz was taken by ambulance to defendant St. Mary Hospital, complaining of shortness of breath. A chest x-ray taken approximately one-and-one-half hours after her arrival diagnosed Muniz, who has a history of osteoporosis, with bilateral shoulder fractures. Alleging that the fractures occurred at the hospital, Muniz's daughter Carmen Virduet (plaintiff), as her guardian ad litem, sued defendant for medical malpractice. Eventually, the lawsuit was dismissed on defendant's motion for summary judgment, simultaneous with the court's denial of plaintiff's motion for supplemental discovery. The appellate panel affirms, finding Plaintiff failed to join all possible defendants and failed to exclude the possibility that Muniz's condition was due to a cause unconnected to defendant. Further, the court did not err in denying plaintiff's motion to depose the triage nurses where, even assuming that the shoulder fractures occurred at the hospital, there has been no proffer whatsoever that the triage nurses are able to state what caused these fractures. Therefore, the nurses' depositions could not have cured the fatal flaws in plaintiff's expert report, which was appropriately rejected as a net opinion.
35-2-5669 CCTS Tax Liens I, LLC v. Gilbert, App. Div. (per curiam) (22 pp.) A prospective intervener, Saint Vincent DePaul Society, appeals from an order denying its motion to intervene in a tax foreclosure proceeding involving plaintiff-holder of a tax sale certificate and defendant property owner, not as a third-party investor but as a lender of funds to defendant for the limited purpose of redeeming the tax sale certificate. Finding that the SVDS should have been permitted to intervene, as it had a sufficient interest and the motion was timely, and that the record is insufficient to permit the court to explore the unique facts surrounding the matter, the panel reverses and remands for a plenary hearing so that the court will have a full record on which to assess and adjudicate the parties' respective rights.
36-2-5670 Bellvue v. New Jersey Transit Bus Operations, App. Div. (per curiam) (15 pp.) Here, Plaintiff appeals from a summary judgment dismissing his personal injury claim against New Jersey Transit Bus Operations (NJT) and its bus driver, Andrew D. Graves, Jr. Plaintiff was driving his car in East Orange, when he was struck in the rear by an NJT bus operated by Graves. The dismissal was based upon plaintiff's failure to satisfy the threshold for recovery contained in the New Jersey Tort Claims Act (TCA). Here, the appellate panel affirms summary judgment, rejecting Plaintiff's argument that the judicial interpretation of the Automobile Insurance Cost Reduction Act (AICRA) should be applied in interpreting the TCA tort recovery threshold, which would have the effect of reducing the requirements of that threshold.
39-2-5671 Paladino v. Pier 1 Imports, App. Div. (per curiam) (4 pp.) Here, where plaintiff received a check for the full amount of her disability award in February 2005, but did not present the check to her bank until July 2006, at which time the bank refused to honor the check, she received a replacement check in August 2007, and on August 28, 2007 she filed an application for modification or review of the February 2005 order, the Division of Workers' Compensation's dismissal of her application as untimely is affirmed since the two-year period for review ran from the date she received the original check, not from the date she received the replacement check.
39-2-5672 Lindsay v. Borough of Carteret, App. Div. (per curiam) (6 pp.) Based on a review of the record and its limited scope of review, the panel finds that the judge's factual and credibility findings are amply supported by sufficient credible evidence and affirms the decision awarding petitioner, a police telecommunicator, temporary disability for an occupational injury to her left hand manifesting as carpal tunnel syndrome and for an award of permanent partial disability for the traumatic injury to her right hand and left knee suffered in a fall at the workplace.
14-2-5673 State v. Gore, App. Div. (per curiam) (16 pp.) Defendant appeals his convictions for murder, felony murder, robbery and weapons offenses, asserting that the trial judge committed plain error when she allowed his unsigned and unacknowledged statement to be admitted in evidence and twice circulated to the jury. No objection was made to the introduction of the transcribed confession at the time of trial. Noting that the jury experienced significant difficulty in reaching a verdict, requiring extensive read-backs of testimony and at one point stating that a unanimous verdict could not be reached, the appellate panel reverses defendant's conviction and remands the matter for a new trial.
04-7-5674 M.G. v. Eastern Regional High School District, Dist. Ct. (Kugler, U.S.D.J.) (23 pp.) This matter involves an improper attorney's fee request. Before the Court is M.G.'s Motion for Summary Judgment for Prevailing Party Attorneys' Fees and Costs as the prevailing party in a Rehabilitation Act claim. The motion was filed by Jamie Epstein, counsel for the Plaintiff. Notwithstanding that Plaintiff was the prevailing party, the Court finds that Epstein is not entitled to any attorneys fees because the fee request is so grossly exaggerated that the request shocks the conscience of the court. Plaintiff is awarded no fees, and the case is dismissed. [Filed October 21, 2009]
42-8-5675 In re Nickels Midway Pier, LLC, Third Circuit (Ambro, C.J.) (8 pp.) Based on its interpretation of the lease agreement between Wild Waves and the debtor Nickels and its consideration of extrinsic evidence, the Third Circuit affirms the rent abatement the Bankruptcy Court granted to Wild Waves after a fire destroyed a castle and a dungeon on the portion of the pier it rented, based on a finding that the parties agreed to abate rent based on an appraised market rate valuation of the leased area available after the fire, and its decision that the $400,000 escrow required by the loan amendment to the lease should remain in effect, based on a finding that the escrow was intended to remain until the mortgage matures and that the amendment was not obtained through economic duress. [Filed October 15, 2009]
07-7-5676 Insignia Systems, Inc. v. Edelstein, Dist. Ct. (Goodman, U.S.M.J.) (8 pp.) Petitioner Insignia Systems, Inc. filed a petition seeking to compel compliance with two separate subpoenas duces tecum, served upon Respondents with regard to a matter pending in the United States District Court for the District of Minnesota. Here, the Court denies the Petition. While the Petition seeks compliance with subpoenas for documents to be used in the Minnesota Action, it actually arises out of an action that was docketed in New Jersey as FGI, Inc. v. News America Marketing In-Store Services Inc. That case was dismissed with prejudice as settled on March 10, 2009. Given that the Court finds ample basis to deny the motion to compel in light of the fact that discovery in the Minnesota Action has been closed since August 11, 2008 - more than a year before the present motion to compel was filed, and well before the subpoenas at issue were served - and both Goodell and Edelstein have asserted that they do not have possession, custody or control over the documents sought - the Court need not reach the issues of relevance, overbreadth, burden, and confidentiality. [Filed October 22, 2009]
10-7-5677 Kerchner v. Obama, Dist. Ct. (Simandle, U.S.D.J.) (11 pp.) Under Article II, Section 1, of the Constitution, a person must be a "natural born citizen" to be eligible for the office of President of the United States. Four individuals, believing that President Barack Obama is not eligible for his office on this ground, have filed suit seeking a court order to require various officials to look into their claims and to remove the President from office. Assuming, as the Court must, that Plaintiffs' allegations are true for the purposes of deciding this jurisdictional motion, the injury, if any, suffered by Plaintiffs is one that would be shared by all the American
People. Where the Supreme Court has consistently held that this generalized harm is not sufficient to establish standing under Article III, the Court will grant Defendants' motion to dismiss for lack of subject matter jurisdiction. [Filed October 20, 2009]
09-7-5678 Capogrosso v. State Farm Insurance Co. Dist. Ct. (Cavanaugh, U.S.D.J.) (10 pp.) Plaintiff filed a pro se complaint against her landlord and the Department of Housing and Urban Development, alleging personal injury and property damage resulting from a water pipe that burst in her Jersey City apartment. Plaintiff filed a separate complaint against defendant State Farm Insurance Company, arising from the same incident, seeking to recover under two insurance policies. After removal, Plaintiff's complaints were consolidated. Plaintiff was granted leave to amend the complaint for the purpose of alleging claims under the Consumer Fraud Act ("CFA"); these counts are the subject of Defendant's present motion to dismiss. The application of the CFA to insurance policies is qualified by excluding claims regarding payment of insurance benefits. Given this explicit qualification, recognized by the Third Circuit in In re Van Holt, the Court dismisses Plaintiff's CFA claims insofar as they pertain to the payment of insurance benefits. [Filed October 21, 2009]
53-7-5679 MEI, Inc. v. JCM American Corp., U. S. Dist. Ct. (Kugler, U.S.D.J.) (12 pp.) In this matter arising out of alleged patent infringement by defendants, previously before the court in Mars, Inc. v. JCM American Corp., Japan Cash Machine Co., Ltd., which included a Markman hearing and order, because JCM did not make a claim against MEI in the previous action and because MEI was precluded from raising its own claims in the prior suit, JCM's motion to dismiss for failure to raise a compulsory counterclaim in the previous action is denied. Defendants' motion for summary judgment, motion to strike, and motion for sanctions are stayed pending the lapse of one year and application by plaintiff or defendants to reinstate the case to the active docket, or disposition of MEI's appeal of the Markman Order in the prior litigation and application by plaintiff or defendants to reinstate the case to the active docket, whichever occurs sooner. The matter is administratively terminated without prejudice until either of the conditions terminating the stay are satisfied. [Filed October 15, 2009]
INSURANCE — BREACH OF CONTRACT — BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING
23-7-5680 Yapak, LLC v. Massachusetts Bay Ins. Co., U. S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) In this insurance coverage dispute, the court grants defendant's motion to dismiss this action alleging breach of contract and breach of the duty of good faith and fair dealing for failure to state a claim upon which relief may be granted under Rule 12(b)(6). The first claim fails because plaintiff has not alleged any facts concerning the terms of the insurance contract or the losses at issue and therefore has not adequately alleged defective performance. The second claim fails because plaintiff's simple allegation that its insurance claim was denied does not support an inference that this claim is a plausible one. Plaintiff is given 30 days to move for leave to file a second amended complaint. [Filed October 16, 2009]
24-7-5681 Devine v. Norvartis Pharmaceutical Corp., Dist. Ct. (Rodriguez, U.S.D.J.) (17 pp.) Plaintiff commenced this action against Defendants for damages allegedly incurred from Defendants' product, Elidel. Here, in light of the absence of a substantial, disputed, and necessary federal question, coupled with the disruption of the balance between federal and state judicial responsibilities, Plaintiff's Motion to Remand is granted based upon lack of federal subject matter jurisdiction. [Filed October 19, 2009]
24-7-5682 Davis v. Quality Carriers, Inc., U. S. Dist. Ct. (Chesler, U.S.D.J.) (7 pp.) On this renewed motion to dismiss filed by defendant/third party defendant Bourassa, a Canadian company, which is opposed by defendant/third party plaintiff Quality Carriers, the court concludes that dismissal of all claims is warranted since Quality Carriers has failed to carry it burden of showing with reasonable particularity that sufficient contacts between Bourassa and New Jersey exist to support personal jurisdiction and has not shown that a transfer of venue to Pennsylvania under 28 U.S.C. sec. 1406(a) or 28 U.S.C. sec. 1404(a) is appropriate relief to cure the lack of personal jurisdiction over Bourassa in this forum. [Filed October 15, 2009]
