STATE COURT CASES
CONTRACTS -- BREACH
11-2-6566 Studio 6 Photography, L.L.C. v. Mowerson, App. Div. (per curiam) (3 pp.) Plaintiff Studio 6 Photography, L.L.C., filed this action against defendant Mowerson and Eagle Star Corporation, alleging that, in breaching their contract, defendants failed to pay for goods and services rendered by plaintiff. Plaintiff also sought damages based on a quantum meruit theory. During a brief nonjury trial, plaintiff's representative testified that, as agreed, he photographed numerous pieces of artwork for defendant Mowerson at the cost of $90 per item and thereafter provided defendant with a DVD containing the photographs. Defendant denied the existence of an agreement and denied that plaintiff provided her with any goods that she either desired or requested. The judge found plaintiff's representative to be "very credible." The judge found that defendant was not credible in many respects and, as to the worth of the DVD, concluded that defendant did "not in any way, shape, or form give credible testimony," as demonstrated by her failure to bring the DVD to court for trial. Applying quantum meruit principles to the facts he found, the trial judge entered judgment in favor of plaintiff and against defendant of $2,250. Giving deference to the judge's credibility findings, the appellate panel affirms, rejecting defendant Mowerson's argument that plaintiff failed to demonstrate an enforceable oral or written contract.
FAMILY LAW – CHILD SUPPORT
20-2-6567 New Jersey Division of Youth and Family Services v. K.H., App. Div. (per curiam) (5 pp.) Appellant K.H. appeals pro se from the Family Part order that denied her motion to terminate child support. Two months after K.H. gave birth to her son, B.W.H., the Family Part entered an order that (a) established C.N.'s paternity of B.W.H. by default; (b) set support to be paid to K.H. by C.N. at the rate of $120 per week; and (c) ordered that arrears by C.N. were payable at the rate of $20 per week. A second order directed K.H. to pay child support to DYFS of $65 weekly, plus $5 a week toward arrears. A guardianship judgment indicates that C.N. voluntarily executed an identified surrender of B.W.H. to K.H.'s aunt and uncle so they could adopt the boy. There is no automatic termination of child support when the court enters a judgment of guardianship. Thus, the court must make an affirmative determination regarding child support on the guardianship judgment. However, N.J.S.A. 9:3-50 provides that an adoption judgment finally terminates the obligation to support the child. Therefore, this matter is remanded to the Family Part, Camden County, for a fact-finding hearing to determine (1) whether K.H.'s child-support obligation is terminated by operation of law because B.W.H. has been adopted; or (2) whether elimination or modification of K.H.'s support obligation is warranted for any reason, including her current financial situation.
FAMILY LAW – DOMESTIC VIOLENCE
20-2-6568 J.B. v. J.B., App. Div. (per curiam) (8 pp.) Defendant ex-wife appeals from a final restraining order under the Prevention of Domestic Violence Act that was issued after the trial court concluded plaintiff had proved an act of domestic violence by criminal trespass. The panel reverses, finding that the evidence did not prove the elements of the offense where no one testified that defendant entered plaintiff's house (the evidence was only that she and her son removed a window screen and tried to open the sliding door), defendant merely came onto the front porch, she gave a plausible explanation of why she was trying to gain entry for her son (so that he could stay in his father's home, where he had stayed before, while she went to work) and there was no evidence that her son was not authorized to enter the house nor evidence that she intended to enter the house herself. Further, without any evidence of prior domestic violence or other reason for plaintiff to fear defendant, the proofs did not support entry of an FRO because there was no evidence of danger or even harassment by defendant and no need for an order of protection.
REAL ESTATE – JUDICIAL ESTOPPEL – ATTORNEY FEES
34-2-6569 Taylor v. American Home Mortgage Servicing Inc., App. Div. (per curiam) (16 pp.) Because plaintiff avoided for nearly two years of summary judgment in the foreclosure action on her Newark property by asserting that it was her primary residence, during which time she benefited from that position as she continued to collect rents and did not remit any of those rents, the trial court correctly held that she was barred by judicial estoppel from asserting that her East Orange property is her primary residence in order to pursue claims under the Home Ownership Security Act of 2002 in this action against the mortgagee on the East Orange property. The dismissal of that complaint is affirmed because the mortgage on the East Orange property is not a mortgage on the borrower's principle dwelling and thus was not a home loan within the meaning of N.J.S.A. 45:10B-24. However, the panel reverses the award of attorney fees because the trial court did not identify the legal basis for fee-shifting in this case. Defendants may re-apply for attorney fees citing appropriate legal authority for such relief if they do so within 30 days of the opinion.
TAXATION – PROPERTY TAX REBATES
35-5-6570 Torella v. Dir., Div. of Taxation, Tax Ct. (Menyuk, J.T.C.) (6 pp.) Plaintiff appeals from the final determination that he must repay property tax reimbursements for tax years 2008 and 2009. He argues that he failed to disclose accidental disability pension income on his applications because he was obligated to pay that income directly to his former wife as alimony. The court affirms because there is no exclusion from income that must be reported to determine eligibility for property tax reimbursement for income from disability pensions and because, although it is less clear whether alimony payments may be deducted from income, the court need not decide the issue because, even if the documentation submitted by plaintiff was sufficient to establish a binding obligation to pay alimony to his ex-wife, that agreement was not entered into until after the date that he submitted the application for tax year 2008 and it was signed subsequent to tax year 2008. Because their joint income exceeded $70,000, plaintiff was not eligible for the reimbursement for tax year 2008 and because he was not eligible for tax year 2008, he also was ineligible for tax year 2009. [Decided May 29, 2012.]
FEDERAL COURT CASES
ANTITRUST – ATTORNEY FEES
59-8-6571 Deutscher Tennis Bund, German Tennis Federation v. ATP Tour Inc., Third Cir. (per curiam) (8 pp.) ATP Tour Inc. appeals from the order of the district court for the district of Delaware denying its post-trial motion for attorney fees, costs and expenses after successfully defending against a suit brought by ATP member federations Deutscher Tennis Bund and Qatar Tennis Federation, and Rothenbaum Sports GMBH. Deutscher and Qatar alleged that by restructuring the ATP tour, ATP created a favored class of tournaments and systematically disadvantaged the rest of ATP’s tournaments from competing by controlling, inter alia, access to top players, prize money, broadcast rights and the schedule. In so doing, Deutscher and Qatar asserted that ATP and its individual board members violated §§ 1 and 2 of the Sherman Act; and under Delaware law breached fiduciary duties, tortiously interfered with contractual and business interests, and converted their membership rights. They sought compensatory damages, treble damages, and an injunction to stop implementation of the restructuring plan. The District Court granted judgment as a matter of law to ATP and the individual defendants on the state law counts, and to the individual defendants on the antitrust claims. A jury concluded that ATP was not liable for any antitrust violations. The Third Circuit affirmed the judgment, and the Supreme Court denied the federations’ petition for certiorari. Here, the circuit panel vacates the order of the district court denying attorney fees and remands the case so that it can examine, in the first instance, whether the fee-shifting provision in ATP’s bylaws creates an enforceable obligation under state law on Deutscher and Qatar to pay ATP’s attorney fees. [Filed May 11, 2012.]
BANKRUPTCY – CHAPTER 11
42-6-6572 In re G-I Holdings, Inc., U.S. Bank. Ct. (Gambardella, U.S.B.J.) (27 pp.) G-I Holdings and ACI Inc., its subsidiary, each filed a voluntary petition for relief under Chapter 11. G-I continued to operate its business as a debtor-in-possession. Before the court is a motion to correct a mistake filed by claimant New York City Housing Authority (NYCHA). NYCHA filed a proof of claim for asbestos property damage to housing complexes for the abatement of asbestos-containing materials allegedly manufactured, mined, distributed and sold by G-I or its predecessors in interest. The debtors filed an objection. NYCHA is asking the court to clarify its intent in stating that "the alleged asbestos-containing products that are the subject of the claim are non-friable asbestos-containing floor tiles (VAT).” NYCHA argues that the last sentence of the opinion contains a factual mistake; no mistake was made, however. The sentence is ambiguous but it does not state what NYCHA asserts it states. Merely mechanically replacing "VAT" with "asbestos-containing materials" would not be a simple exchange of equivalent terms nor would it provide the remedy requested. The court, therefore, finds Rule 60(a) is inapplicable; the court is being asked to clarify its opinion, not modify or change it. The court grants the motion to the extent that NYCHA asks the court to clarify that NYCHA's claims include all the product types specified in its claim and supplemental submission. [Filed May 17, 2012.] [For publication.]
CIVIL PROCEDURE – CLASS ACTIONS – ERISA
07-7-6573 In re Schering-Plough Corp. Enhance ERISA Litig., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (15 pp.) In this action alleging the defendant breached their financial duties to certain participants in the Schering-Plough Employees' Savings Plan and the Schering-Plough Puerto Rico Employees' Retirement Savings Plan, the court grants plaintiffs' motion for approval of the proposed settlement. It applies the Girsch factors and finds that the settlement appears fair, adequate, reasonable and proper and in the best interests of the class and the shareholders and that the plan of allocation is fair, adequate and reasonable. It applies the Gunter factors and finds the requested attorney fees reasonable. It also approves the award of incentive fees. [Filed May 31, 2012.]
CIVIL PROCEDURE – CLASS ACTIONS – REMANDS
07-8-6574 Probola v. Long & Foster Real Estate Inc., Third Cir. (Jordan, U.S.C.J.) (7 pp.) Plaintiffs filed a state court action asserting claims under the New Jersey Consumer Fraud Act and the New Jersey Truth-in -Consumer Contract, Warranty and Notice Act, and a claim for breach of fiduciary duty arising out of an allegedly unlawful document fee charged by defendant when they purchased their New Jersey real estate. Defendant removed the matter to the district court claiming diversity jurisdiction under the Class Action Fairness Act. That court remanded it on plaintiffs' motion, after which the trial court dismissed the matter, plaintiffs appealed, and the Appellate Division has issued a scheduling order. Without knowing of the state court proceedings, the Third Circuit granted defendant's motion to appeal the district court's remand. Determining that it is no longer prudent to exercise appellate CAFA jurisdiction, given that the case has already proceeded to judgment in state court, the court vacates as improvidently granted its order granting defendant leave to appeal and dismisses the appeal. [Filed June 1, 2012.]
DEBTOR/CREDITOR
15-7-6575 Ortiz v. Malcolm S. Gerald & Associates Inc., U.S.Dist. Ct. (Cecchi, U.S.D.J.) (9 pp.) Defendants Malcolm S. Gerald & Associates Inc. and Equable Ascent Financial filed a motion to dismiss plaintiff’s complaint. The complaint alleges that defendants violated the Fair Debt Collection Practices Act (FDCPA), and that defendants’ actions also constitute an invasion of privacy under New Jersey tort law. The complaint alleges that defendants violated § 1692c(a)(2) when they directly contacted plaintiff despite his representation by counsel. Plaintiff has failed to present sufficient factual allegations to support the inference that defendants had actual knowledge of plaintiff’s representation. As a result, this claim is dismissed without prejudice. Further, plaintiffs claim under § 1692e(2)(A) is dismissed without prejudice for failure to state a claim. The complaint does not identify the date of the communication, or the nature of the communication and whether it occurred by phone, letter, e-mail, or in person; Plaintiff fails to state the amount that defendants claimed he owed or the extent to which this figure was a misrepresentation; Plaintiff provides nothing to assert his claim aside from the conclusory statement that defendants “are misrepresenting the amount owed, if indeed any debt exists.” As to the invasion-of-privacy claim, plaintiff failed to present sufficient factual allegations for the court to reasonably infer that either defendant communicated in such a way as to invade plaintiffs privacy. Accordingly, this claim is dismissed without prejudice. [Filed May 17, 2012]
GOVERNMENT – PUBLIC CONTRACTS
21-7-6576 ISObunkers, L.L.C. v. Byram Township Board of Education, U.S.Dist. Ct. (Cavanaugh, U.S.D.J.) (9 pp.) Plaintiff, ISOBunkers, L.L.C., filed a complaint against defendant Byram Township Board of Education concerning an alleged breach of an agreement pursuant to which plaintiff agreed to supply defendant with the fuel oil needs for schools in defendant’s school districts. The court conducted a nonjury trial limited to the issue of whether the plaintiff is entitled to relief under a theory of promissory estoppel. The court finds the law is clear that a binding contract could not be formed until a formal resolution is passed by the board. Although plaintiff may have thought that the board resolution was a mere formality or rubber stamp, the law clearly indicates otherwise and defendant made no promise to the contrary. Plaintiff and its agents were well aware of the bidding procedure and were at the very least charged with knowledge that a binding contract could not be entered into prior to the passage of a resolution of the board. Plaintiff established its own pattern of practice in which it purchased futures contracts on notification that it was the lowest bidder. However, this pattern was developed by plaintiff and cannot be attributed to any promise made by defendant on which it intended plaintiff to rely. Accordingly, the court finds that plaintiff has failed to establish a cause of action under a theory of promissory estoppels. A finding in favor of defendant will be entered. [Filed May 18, 2012.]
INSURANCE
23-8-6577 North Plainfield Board of Education v. Zurich American Insurance Company, Third Cir. (Roth, U.S.C.J.) (3 pp.) The North Plainfield Board of Education appeals from the district court’s order denying reconsideration of the order denying summary judgment. The board also appeals from the final judgment that dismissed with prejudice the board’s claims against National Union Fire Insurance Company of Pittsburgh, Pa. The board alleged that, pursuant to a claims-made errors-and-omissions policy, National Union owed it an unlimited duty to defend and indemnify in three underlying actions. The circuit panel affirms the district court's order denying the board’s motions for summary judgment in all three actions and holding that National Union was obligated to pay up to an aggregate limit of $100,000 for each of the three actions ($300,000 total). The panel further affirms the order denying the board’s motion for reconsideration and finding that Flomerfelt v. Cardiello is not an intervening change in the law. [Filed May 17, 2012.]
INTELLECTUAL PROPERTY – PATENT INFRINGEMENT
53-7-6578 Medeva Pharma Suisse A.G. v. Par Pharmaceutical Inc., U.S. Dist. Ct (Wolfson, U.S.D.J.) (66 pp.) In this action alleging infringement of plaintiffs' U.S. Patent No. 5,541,170 by defendants in their abbreviated new drug application to market a generic version of Asacol, which is approved for the treatment of an inflammatory disease of the large intestine, the court adopts constructions of several disputed phrases submitted by the parties, including "a layer which is insoluble in gastric juice and in intestinal juice below pH 7 but soluble in colonic intestinal juice." [Filed June 1, 2012.]
INTELLECTUAL PROPERTY – TRADEMARK INFRINGMENT
53-7-6579 Moroccanoil Inc. v. Conforti, U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) In this action for violations of the Lanham Act, alleging that defendants Conforti and Salon Distribution Inc. infringed plaintiff's trademarks and copyrights and distributed counterfeit Moroccanoil products, in which defendants filed a third-party complaint against Venus Beauty Supplies, a Canadian corporation, alleging that it sold them the allegedly counterfeit products, Venus' motion to dismiss the third-party complaint for lack of personal jurisdiction is granted. Venus' sale of allegedly counterfeit products to SDI in Canada does not constitute a contact with New Jersey and SDI's subsequent sale of those products to a company in New Jersey cannot constitute a basis of personal jurisdiction over Venus, and the fact that Venus has occasionally bought scissors from a New Jersey company does not constitute continuous and substantial contacts sufficient to give rise to personal jurisdiction over it in New Jersey. Nor is Venus subject to personal jurisdiction based on its contacts with the United States as a whole because the claims against it do not arise under federal law where the single count asserted against it is for common-law indemnification and contribution. [Filed June 1, 2012.]
PUBLIC EMPLOYEES – POLICE – TORTS
33-7-6580 Dawson v. Township of Ocean, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (14 pp.) In this 42 U.S.C. § 1983 action against the township, the police chief and a patrolman and a sergeant arising out of a motor vehicle infraction, defendants' motion for summary judgment is granted as to plaintiff's federal and state constitutional claims for municipal liability, injunctive relief, false arrest/false imprisonment, malicious prosecution and malicious abuse of process because, inter alia, it is undisputed that there was probable cause for the arrest where plaintiff refused several requests to turn over his license, registration and insurance card in connection with an eyewitness report of an accident involving a truck with a license plate registered to him. It is also granted on the state law claims for assault and battery, malicious prosecution, malicious abuse of process and false arrest/imprisonment because plaintiff failed to comply with the notice requirements of the Tort Claims Act. Defendants' motion is denied as to the constitutional claims for excessive force, failure to intervene and supervisory liability because there are genuine issues of material fact as to the amount of force used and the extent and nature of the sergeant's participation in the arrest. [Filed May 29, 2012.]
Additional opinion approved for publication: DDS No. 07-3-5535, I/M/O the State through the Essex Cty. Prosecutor's Office, Compelling the Jury Manager to Provide Information on Prospective Jurors, decided on Feb. 27, 2012, and reported in the March 13, 2012, Alert, has been approved for publication by the Committee on Opinions as of June 11, 2012. The approved opinion has 20 pages, four more than the original version. The full squib is repeated below for ease of reference:
CIVIL PROCEDURE – JURIES
07-3-5535 I/M/O the State through the Essex Cty. Prosecutor's Office, Compelling the Jury Manager to Provide Information on Prospective Jurors, Law Div. – Essex Co. (Costello, A.J.S.C.) (20 pp.) The state's application to have the court order the jury manager to turn over the dates of birth of certain persons in the petit jury pool to the state to facilitate running criminal background checks on those potential jurors is denied because Rule 1:38-5 does not authorize the assignment judge to distribute juror questionnaires, and Rule 1:8-5 and N.J.S.A. 2B:20-4 suggest that such distribution should be conducted with extreme caution but the state's application does not propose a system rooted in deep caution; it would give the state a competitive advantage by providing it alone with the added ability to learn pertinent information about potential and sitting jurors, and it is fraught with constitutional issues concerning the privacy rights of citizens and the due process rights of defendants. [Decided Feb. 27, 2012.]
