Daily Decision Service Alert: Vol. 21, No. 244 ? December 18, 2012

 

 

01-2-8486 In re Bid Solicitation #11-X-21175, Snow Removal and Salting Services Statewide, App. Div. (per curiam) (11 pp.) Central Jersey Landscaping Inc. appeals from a final decision of the Division of Purchase and Property (DPP) rejecting its bid protest and awarding a bid to Garden State Sealing (GSS). Central argues that the DPP erred by (1) awarding GSS the bid despite its nonconformance for failing to include the source disclosure form; and (2) failing to consider all relevant criteria in evaluating the bid proposals. The appellate panel agrees with the acting director's determination that the source disclosure form was not required by the request for proposals (RFP) when submitting a bid. Thus, GSS submitted a conforming bid. Further, the panel rejects Central’s contention that the Purchase Bureau improperly focused only on price and failed to consider all of the RFP's bid evaluation criteria.

 

08-2-8487 Foulke Management Corp. v. Audi of America Inc., App. Div. (per curiam) (21 pp.) In this motor vehicle franchise termination action, defendant Audi of America Inc.'s motion for leave to appeal to review paragraph two of the April 18, 2012, order of the Law Division was granted. In that paragraph, the trial judge required Audi to provide its franchisee, plaintiff Foulke Management Corp., d/b/a Atlantic Audi (Atlantic), with a guaranteed number of new vehicles each month during the pendency of the litigation. Audi argues the judge exceeded his authority under the New Jersey Franchise Practices Act, and because there were disputed issues of material facts, mandatory preliminary injunctive relief should not have been granted. Significantly, the judge did not conduct a plenary hearing; the failure to conduct such a hearing was critical because the facts underlying each of the parties' respective claims were sharply disputed. The appellate panel finds the judge misapplied his discretion in granting Atlantic mandatory injunctive relief under the circumstances of this case. The panel reverses the judge’s decision, vacates paragraph two of the April 18, 2012, order, and remands.

 

20-2-8488 Greeley v. Greeley, App. Div. (per curiam) (24 pp.) In this matrimonial matter, defendant appeals from the order denying his motion to vacate a default final judgment of divorce (FJD), filed eight months later, alleging there was excusable neglect and, in the alternative, contending the judgment was unconscionable and unfair. He also argues the court failed to make factual and legal findings as to the reasonableness and fairness of the judgment, inappropriately denied him the child dependency tax exemption, and awarded plaintiff excessive counsel fees. The appellate panel finds there was no excusable neglect. Further, as the trial judge noted, the FJD was based on minimal financial information within plaintiff's possession because defendant failed to cooperate with discovery. As plaintiff testified at trial, defendant's failure to provide his financial information was also the primary roadblock for a resolution during mediation. The appellate panel finds that the record is adequate to support the FJD. However, the panel remands the issue of attorney fees to the trial court.

 

25-2-8489 Townsend v. Board of Review, App. Div. (per curiam) (6 pp.) Appellant was terminated from his position as a bus driver after having exhausted his temporary disability and vacation time and having failed to provide any documentation verifying that he could return to work. He appeals from the Board of Review's decision denying him unemployment benefits because he voluntarily left his position with New Jersey Transit without good cause attributable to the work. The panel affirms, finding that where plaintiff failed to communicate with his employer, provide necessary documentation or even appear for hearings scheduled to address his status, the board's judgment that he left his position voluntarily without good cause attributable to the work was amply supported by the record and its action was not arbitrary, capricious or unreasonable.

 

25-2-8490 Townsend v. Amalgamated Transit Union Division 540, App. Div. (per curiam) (8 pp.) Pro se appellant, a former bus driver for New Jersey Transit, appeals from the grant of summary judgment dismissing his complaint against defendant-union to which he belonged while employed at NJ Transit. The panel affirms, finding that viewing the evidence in the light most favorable to plaintiff, he fell far short of establishing material issues of fact or a colorable claim of law for relief against the union since, in the absence of a grievance, or any other appropriate response to the numerous communications made by New Jersey Transit as well as the union, the union had no obligation to do anything further on behalf of plaintiff.

 

04-2-8491 New Century Financial Services Inc. v. C&M Pools & Installations Inc., App. Div. (per curiam) (6 pp.) Plaintiff New Century Financial Services Inc. obtained a judgment against Keith Wilson, a part-time seasonal employee of defendant. Plaintiff served a wage garnishment on defendant. When no payments were received, plaintiff sent written inquiries to defendant regarding its failure to comply with the wage execution order and then filed suit. A default judgment was entered against defendant for the full amount of the judgment against Wilson plus interest and costs. Defense counsel sent "a safe harbor letter" to plaintiff’s attorneys, Pressler & Pressler, claiming "[t]here was no legal or factual basis for the entry of a default judgment against the defendant for the full amount owed by the debtor" and demanding that plaintiff vacate the default judgment. Defendant then moved to vacate the default judgment. The parties entered into a consent order; in addition to vacating the default judgment and dismissing plaintiff's complaint, the consent order required defendant to comply with the writ of execution should Wilson become employed by defendant until the judgment was satisfied. Here, the appellate panel affirms the court’s denial of defendant’s motion for sanctions under Rule 1:4-8 against plaintiff's attorneys.

 

 

07-7-8492 Williams v. BASF Catalysts, L.L.C.,U.S. Dist. Ct. (Chesler, U.S.D.J.) (41 pp.) Before the court are several motions to dismiss the amended class action complaint filed by defendants. This lawsuit, filed as a putative class action, seeks nationwide relief for the alleged misconduct of defendant BASF (and/or its predecessors) and its then-counsel, Cahill Gordon & Reindel (Cahill), in connection with thousands of asbestos exposure lawsuits filed by individuals primarily in state courts throughout the United States over a period of more than 25 years. Plaintiffs contend that their personal-injury lawsuits were dismissed, voluntarily or otherwise, because BASF and Cahill deliberately concealed the fact that Englehard talc, sold under the trade name “Emtal,” contained asbestos. In spite of their effort to redraw this action to avoid a confrontation between the respective roles of state and federal courts, the court concludes that the entire amended complaint must be dismissed both as barred by the Anti-Injunction Act and for failure to state a claim on which relief may be granted. [Filed Dec. 12, 2012.]

 

07-7-8493 Veverka v. Royal Caribbean Cruises LTD., U.S.Dist. Ct. (Debevoise, S.U.S.D.J.) (14 pp.) Plaintiff is an 81-year-old woman who suffered a slip and fall on defendant’s cruise ship, which resulted in emergency hip replacement surgery in New Jersey and consequential medical treatments, the effect of which results in ongoing pain, discomfort and need for assistance with basic daily activities. Defendant Royal Caribbean Cruises LTD. has filed this motion to dismiss and motion to transfer venue to the U.S. District Court of the Southern District of Florida, Miami Division, as per a forum-selection clause on the cruise ticket contract. The lynchpin issue here is the reasonableness of the forum-selection clause, and specifically whether the forum is so gravely difficult and inconvenient that plaintiff will be deprived of her day in court. Given plaintiff’s age, medical condition, need for ongoing treatment and assistance, and defendant’s contacts and proximity in and near New Jersey, and associated expense and time necessary for litigation, the factors and the interests of justice clearly weigh in favor of New Jersey as the proper forum. Defendant’s motions are denied. [Filed Dec. 11, 2012.]

 

09-7-8494 Robinson v. Hornell Brewing Co., U.S. Dist. Ct. (Simandle, U.S.D.J.) (29 pp.)Plaintiff filed this suit as a putative class action alleging that he and other citizens of New Jersey were induced to buy defendants’ Arizona Brand beverages because of misleading labels touting “All Natural” ingredients when the beverages contained high fructose corn syrup, which plaintiff asserts is not a natural ingredient. The court denied plaintiff’s motion to certify because plaintiff lacked standing and the Third Circuit denied his petition for permission to appeal. Plaintiff now seeks a dismissal without prejudice, arguing that the court lacks subject-matter jurisdiction after denying certification of the class. Defendants oppose the motion and filed a cross-motion for partial summary judgment on plaintiff’s claims for injunctive relief. The court holds that it does not maintain jurisdiction under the Class Action Fairness Act of 2005 after denying class certification for lack of subject-matter jurisdiction due to the sole plaintiff's lack of standing, and because it lacks an independent basis for jurisdiction over plaintiff's individual money damage claims and it declines to exercise supplement jurisdiction over the damage claims, it grants plaintiff's motion to dismiss without prejudice. It therefore lacks jurisdiction to rule on defendants' cross-motion for partial summary judgment. [Filed Dec. 13, 2012.]

 

09-7-8495 Goodrich Management Corp. v. Afgo Mechanical Services Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (7 pp.) In these putative class actions, in which plaintiffs seek to represent classes of persons who allegedly received unsolicited faxes from defendants in violation of the Telephone Consumer Protection Act, defendants move to deny class certification. The court holds that for substantially the same reasons set forth in Bais Yaakov of Spring Valley v. Peterson's Nelnet LLC, the court is not required by 47 U.S.C. § 227(b)(3) to, nor should it, forgo the class certification requirements in Federal Rule of Civil Procedure 23 by instead applying New Jersey class-action law to plaintiffs' TCPA class claims brought in federal court. Thus, the relief sought by defendants seeking dismissal predicated on the court first determining that it should apply a state law that purportedly bars class certification of private TCPA actions is denied. [Filed Dec. 14, 2012.]

 

15-7-8496 Cooper v. Pressler & Pressler. L.L.P., U.S. Dist. Ct. (Hillman, U.S.D.J.) (24 pp.) Plaintiff asserts claims under the Fair Credit Reporting Act and the Fair Debt Collection Practices Act, along with several New Jersey state law claims arising out of defendants' alleged collection efforts on plaintiff's credit-card account. Defendant Capital One moves to dismiss. The court finds that Capital One was a creditor with respect to plaintiff's alleged debt and that the complaint fails to state a claim against it under the FDCPA because it does not allege facts sufficient to show that Capital One meets the definition of debt collector under the act. The claim under the FDCPA is dismissed with prejudice. The claim under the FCRA against Capital One is dismissed because plaintiff has failed to allege that Capital One, as opposed to any other defendants, engaged in any actions that violated the FCRA. Moreover, even accepting as true the allegation that Capital One initiated a "soft pull" of plaintiff's credit report, it clearly had a permissible purpose for obtaining plaintiff's credit report under FCRA. This claim is dismissed with prejudice. The court declines to exercise supplemental jurisdiction over plaintiff's state law claims and dismisses those claims without prejudice. [Filed Dec. 17, 2012.]

 

19-7-8497 Coles v. Carlini, U. S. Dist. Ct. (Simandle, U.S.D.J.) (7 pp.) In his dispute arising out of an allegedly illegal traffic stop of plaintiffs by the New Jersey State Police, plaintiffs' appeal from the magistrate judge's nondispositive order denying their motion to deem a videotape exhibit a "true, correct and accurate and admissible transcription and copy of the original VHS videotape recording" of the stop by the State Police, made after defendants had admitted the authenticity of the video in their motion to dismiss but their answer denied allegations in the amended complaint because the video had not been authenticated. Noting the that magistrate judge ordered defendants to cure problems with their answer by eliminating denials based on the videotape exhibit, rendering unnecessary any decision on the authenticity of the exhibit until such time as its authenticity becomes a material issue, the court affirms, finding that this solution was within the magistrate judge's discretion and that there was no abuse of discretion. In light of both sides' agreement during briefing this motion that the videotape is authentic (although defendants sought to reserve the right to challenge it if testing later reveals evidence of tampering), the court deems the exhibit as having been authenticated and its admissibility at trial will depend on either the parties' stipulation of admissibility or on plaintiffs' showing under the relevant exceptions to the hearsay rules in Rules 801-803. [Filed Dec. 14, 2012.]

 

25-7-8498 DeMaio v. Right Management Inc.,U.S. Dist. Ct. (Thompson, U.S.D.J.) (16 pp.) Plaintiff Raymond DeMaio alleges that defendant Right Management Inc.’s termination of his employment was based on age discrimination in violation of the New Jersey Law Against Discrimination. Defendant filed a motion for summary judgment. The issue is whether a reasonable fact finder could conclude that the reason given by Right Management for DeMaio’s termination, his deficiencies in talent management, was not the actual motivation. DeMaio attempts to demonstrate inconsistencies in Right Management’s proffered reason. He argues that Right Management evaluated general managers based on the totality of their performance, not talent management performance alone, and his overall performance was outstanding. DeMaio argues that Right Management’s assertion that it fired him for his performance in talent management is not supported by the facts. Finally, DeMaio argues that Right Management was inconsistent in its internal documents as to why it terminated him, suggesting it attempted to cover-up its discriminatory motive. The court finds DeMaio failed to prove that Right Management’s reason for firing him was a pretext for discrimination, and Right Management is entitled to summary judgment. [Filed Dec. 14, 2012.]

 

25-7-8499 Montvale Surgical Center v. Horizon Blue Cross Blue Shield of New Jersey Inc., U.S. Dist. Ct. (Debevoise, U.S.D.J.) (11 pp.) This action arises out of defendant District Council Ironworkers Funds of New Jersey's willingness to pay only a fraction of the amount claimed by plaintiff for medical care. The fund is a benefit plan that is administered in accordance with the Employee Retirement Income Security Act that includes a self-funded health insurance plan that is administered by defendant Horizon. The medical care at issue was rendered to a subscriber to the plan who assigned his rights under the health insurance plan to plaintiff. When it was only reimbursed a very small fracture of the cost of the medical services rendered, plaintiff filed this action in state court asserting claims for, inter alia, breach of contract, promissory estoppel and unjust enrichment. The court finds that plaintiff's claims are pre-empted by ERISA and that the complaint should be dismissed with prejudice because Montvale failed to exhaust the mandatory administrative appeals process under the summary plan description when it failed to appeal Horizon's denial to the fund's board of trustees before filing suit for benefits. [Filed Dec. 14, 2012.]

 

25-7-8500 In re Morgan Stanley Smith Barney Wage and Hour Litigation, U.S. Dist. Ct. (Martini, U.S.D.J.) (8 pp.) In this multidistrict wage-and-hour case, plaintiffs, who worked for defendant as financial advisers and were paid on commission, allege that defendant failed to pay overtime in violation of state and federal law and impermissibly deducted money from their paychecks in violation of state law. Defendant moves to dismiss the overtime claim sounding in Rhode Island law, all of the impermissible deduction claims, and the claim for failure to maintain records. The Rhode Island overtime claim is dismissed because the Rhode Island minimum wage law did not contain a private right of action at the time these suits were filed. As to the claims of impermissible wage deduction, the claim under New York law is dismissed because, to the extent it alleges impermissible deductions, it is conclusory and to the extent it alleges a failure to reimburse, it does not aver a violation of New York law; the claim under New Jersey law is dismissed because it is conclusory; the claim under Rhode Island law is dismissed based on the absence of a private right of action; and the claim under Connecticut law is dismissed because it is conclusory. The claim for failure to maintain records is dismissed because it is duplicative. The court grants in part and denies in part the motion to strike the class and collective allegations, striking trainees from the putative impermissible deductions classes but finding it premature to strike overtime class allegations. [Filed Dec. 14, 2012.]

 

04-7-8501 Tadros v. City of Union City Mayor Stack, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (6 pp.) In this action asserting a breach of fiduciary duty against plaintiffs' former attorney arising out of her purported forgery of their signatures on the substitution of counsel forms and the detriment they allegedly suffered as a result of her continuing to enter appearances on their behalf after she withdrew from their case, the court grants defendant's motion for summary judgment, finding that plaintiffs have not and cannot show that defendant committed any intentional misconduct in her role as plaintiffs' counsel where plaintiffs failed to respond to defendant's requests for admission seeking the authentication of several of their signatures which failure constitutes an admission under Rule 36(a)(3) that their signatures are authentic, and because plaintiffs have shown no damages proximately caused by defendant's continued representation or that she committed any intentional misconduct that would rise to the level necessary to constitute a breach of her fiduciary duty. [Filed Dec. 14, 2012.]