Daily Decision Service Alert: Vol. 22, No. 29 ? February 12, 2013

 

 

06-4-8990 Valley National Bank v. Grau, Chancery Div.- Bergen Cy. (Doyne, A.J.S.C.) (16 pp.) In this foreclosure matter, Plaintiff Valley National Bank filed a motion seeking summary judgment and to strike the contesting answer of defendant Artsyl, LLC, and seeking leave to auction the shares of the cooperative apartment owned by Defendants. Defendants filed opposition arguing the impairment of the collateral held by plaintiff as security for a loan presents a material issue of fact precluding summary judgment. Plaintiff primarily argues that the collateral was not impaired, and in any event, defendants waived this defense. The court finds Plaintiff has presented a prima facie case for foreclosure and defendants have not presented any material fact as to why summary judgment should not be granted. Defendants’ argument that plaintiff knowingly or recklessly impaired the collateral by releasing property as collateral on the note, thus putting the remaining guarantors, defendants, in a compromised position, is belied by the fact the defendants were placed in a better position upon the release of this collateral. Even if defendants were placed in a worse position, defendants cannot raise a defense of impairment of collateral as they validly waived this defense in their guarantees. Plaintiff does not owe defendants any fiduciary duty. Further, Plaintiff made no misrepresentations and, in fact, acted in defendants’ best interests by improving defendants’ positions through the release of the property and the acceptance of a lump sum payment. Summary judgment is granted, Artsyl’s answer is stricken, and plaintiff may proceed with the sale of the co-op.

07-2-8991 Williams v. Wilson, App. Div. (per curiam) (8 pp.)Plaintiff Virginia Williams, a purchaser of a used car from defendant Family Auto Center, LLC, appeals he trial court's order entering judgment in her favor against the dealership for $2990, denying without prejudice her request to enter default judgment against defendant bonding company, Aegis Security

Insurance Company, and dismissing Family Auto's counterclaim. She challenges the court's finding of no liability as to the individual principals and no violation of the Consumer Fraud Act and argues that defendant Wayne Wilson, Family Auto's general manager and principal, violated the Truth in Consumer Contract, Warranty, and Notice Act because he failed to disclose the history of the vehicle and that she is entitled to compensation from Aegis on the bond. The panel dismisses the appeal as interlocutory because the decision being appealed is not final as to all issues and parties since final judgment has not been entered against Aegis nor has that count been dismissed.

20-2-8992 New Jersey Division of Youth And Family Services v. L.M., App. Div. (per curiam) (36 pp.) L.M. (Laura) appeals from a judgment of guardianship, terminating her parental rights to three of her children, M.M. (Martin), S.M. (Sally), and N.M. (Norman). Sally's father, P.T. (Peter), appeals from the same judgment which terminated his parental rights to Sally. The appellate panel affirms the judgment as to the termination of Laura's parental rights to Martin and Norman. Because the Division failed to prove that termination would not do more harm than good to Sally by clear and convincing evidence, the panel reverses the order terminating parental rights as to Sally. Sally's age, the severity of her psychiatric disabilities and her extreme behavioral disorders, militate strongly against her prospects of achieving permanency. In seeking to terminate the parental rights of Laura and Peter, the Division of Youth and Family Services (DYFS) is promising only the possibility that Sally may be adopted. The judgment terminating the parental rights of Laura and Peter to Sally is vacated. Because the Division has failed to identify any resource likely to afford permanency for Sally, and because the proofs as to Peter were so profoundly deficient, remand is not for a new trial but requires the reopening of the Title Nine litigation. The case is remanded to the trial court for the immediate development and implementation of a reasonable, realistic and meaningful reunification plan.

36-2-8993 Joseph v. Jefferson, App. Div. (per curiam) (17 pp.) Plaintiff appeals the Law Division's order granting summary judgment to defendants Alesia and Damon Jefferson dismissing his personal injury action filed after he fell and suffered a herniated disc while delivering concrete to their home. The Jeffersons appeal the order granting summary judgment to third-party defendant Zurich American Insurance Company, which insured the concrete company and the truck Joseph was driving, dismissing their third-party complaint for insurance coverage. The panel affirms, finding that there was no master-servant relationship between the Jeffersons and the handyman they hired to prepare the ground and spread the concrete or with the individual the handyman hired to help him and thus the Jeffersons were not responsible for the workers' alleged negligence which caused Joseph to trip and fall. Nor did the Jeffersons have a duty of care to Joseph as an invitee. The panel also finds that the Jeffersons were not entitled to a defense from Zurich because Joseph was not injured while unloading the truck but after he got out of the truck to help with spreading the concrete and thus his injury was not related to his use of the insured vehicle. Further, the panel says it is not convinced that the Jeffersons were insured under the policy because they were not owners or users of the truck.  

 

42-7-8994 Smith v. Manasquan Savings Bank, Dist. Ct. (Pisano, U.S.D.J.) (3 pp.) Presently before the court is a motion by appellant for reconsideration of the court’s order

dismissing her appeal of the Bankruptcy Court's order denying her motion for reconsideration of a prior order. Also before the court is an amendment to appellant’s motion for reconsideration and a motion by appellant to dismiss appellee Teich Groh’s cross-motion to dismiss the appeal. Considering appellant's pro se status, the court permits her to amend her motion. Appellant's motion for reconsideration is denied because the information that she seeks to provide - additional clarification regarding the purported bias that the bankruptcy judge showed in denying her motion for reconsideration - would not alter the court's earlier conclusion which was based on its own review of the Bankruptcy Court's record and the record of appeal. Appellant's motion to dismiss appellee's cross-motion is denied as moot because no cross-motion is pending. [Filed February 11, 2013]

46-7-8995 Gumbs v. O’Connor, Dist. Ct. (Bongiovanni, U.S.M.J.) (7 pp.) This case involves a Fourth Amendment unreasonable search and seizure claim arising out of a search of Plaintiff’s home conducted by members of the Keansburg Police Department. The Court previously granted Plaintiff’s application to file a Second Amended Complaint insofar as it added Patrolman Lopez and Special Officer Rivera as Defendants in addition to Defendant Detective O’Connor, and permitted Plaintiff to assert a cause of action for an unreasonable search in violation of his Fourth Amendment rights against all Defendants in their official and individual capacities. The Court, however, denied Plaintiff’s request to assert any cause of action against Lieutenant White or Chief Officer Pigott, as there were no adequately pled facts to support such claims. Plaintiff’s Second Amended Complaint improperly included White and Pigott, and failed to omit claims of malicious prosecution, false arrest and false imprisonment. Plaintiff now seeks leave to file a Third Amended Complaint, asserting claims against White and claims of false arrest and false imprisonment. Plaintiff is attempting to reassert claims which were dismissed three times. Plaintiff’s claims of false arrest and false imprisonment against O’Connor, Lopez and Rivera remain futile. Plaintiff’s claims against White are futile where he has not alleged that White was present at the search but only that he was the named supervisor. [Filed January 31, 2013]

10-7-8996 International Association of Firefighters, Local 1197 v. Township Of Edison, Dist. Ct. (Martini, U.S.D.J.) (8 pp.) Plaintiffs International Association of Firefighters, Local 1197 (the “Union”), Robert Yackel, Anthony Pepe, and James Walsh filed this action against the Township of Edison, Antonia Ricigliano, Dennis Gonzalez, William Stephens, and Richard Laird. The Union is the collective bargaining representative for Township of Edison firefighters. Yackel is the Union’s president. Pepe and Walsh are firefighters. Ricigliano is the Mayor of Edison. Gonzalez, Stephens and Laird are current or former Township employees. The complaint alleges that Defendants retaliated against Plaintiffs because they publicly criticized Defendants’ management of the Fire Department and campaigned against Stephens when he ran for Mayor. Plaintiffs assert seven allegedly retaliatory actions by Defendants. The facts alleged in this complaint have been the subject of 13 proceedings in five forums. The legal issues have been litigated and the adjudicators found the facts present no novel constitutional issues, the claims of retaliation and anti-union animus lack merit, and the Township properly exercised its authority in making decisions affecting the Fire Department. Plaintiffs are barred from litigating the issues raised in their complaint on various grounds including the entire controversy doctrine, res judicata, and the Younger abstention doctrine. The complaint is dismissed with prejudice. The request for frivolous litigation sanctions is denied on procedural grounds. [Filed January 31, 2013]

 

09-7-8997 Crozier v. Johnson & Johnson Consumer Compaines, Inc., Dist. Ct. (Simandle, U.S.D.J.) (13 pp.) Plaintiffs filed these putative class actions alleging that Defendant Johnson & Johnson Consumer Companies Inc. (“J&J”) violated the New Jersey Consumer Fraud Act (“NJCFA”) by misleading consumers to believe that J&J’s Neosporin NEO TO GO! first aid antiseptic/pain relieving spray contains antibiotics. In Crozier I, the Court dismissed Plaintiffs’ NJCFA claims without prejudice. Here, Defendants’ motion for leave to file a sur-reply is granted and Plaintiffs’ motion to amend their complaints is denied. The Court finds Plaintiffs have not pled affirmative advertising misrepresentations to satisfy the Rule 9(b) pleading standards. Plaintiffs have not pled that the spray, which contains an antiseptic, does not provide infection protection or that J&J’s statement about infection protection was false. Plaintiffs claim that J&J deceived them into believing that the spray contained antibiotics, but Plaintiffs do not allege J&J ever stated that the spray contains antibiotics. The Court finds the presence of the Neosporin Signature Gold Mark and Trade Dress, absent any false statements, is insufficient to satisfy the unlawful conduct prong of the NJCFA. Plaintiff’s NJCFA claims are dismissed with prejudice. The case is dismissed. Plaintiffs’ motions to amend are denied because amendment is futile. [Filed January 31, 2013]

51-7-8998 Nikolashin v. Holder, Dist. Ct. (Linares, U.S.D.J.) (10 pp.)Vladimir Nikolashin, a citizen of Ukraine who is detained at Hudson County Correctional Center, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his pre-removal period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of the Department of Homeland Security. The court holds that Nikolashin’s detention is governed by 8 U.S.C. § 1226(a) because he is not an alien who was taken into DHS custody when the he was released from incarceration for a crime listed in § 1226(c) and grants a Writ of Habeas Corpus directing the Immigration Judge to conduct an individualized bond hearing pursuant to 8 U.S.C. § 1226(a) to determine if Nikolashin is a flight risk or danger to the community. [Filed February 7, 2013]

 

23-7-8999 Clark v. The Prudential Ins. Co. of America, Dist. Ct. (Debevoise, S.U.S.D.J.) (107 pp.) This action alleges deception and bad faith arising out of defendant's stopping the sale of health insurance plans marketed under the name Coordinated Health Insurance Program. The heart of the complaint is that Prudential stopped selling CHIP policies to new customers (closed the book) knowing that this would result in a prohibitive increase in premium rates but concealed this information from policy holders and instead represented that premiums would rise only due to increasing age of the insured and rising medical costs. Plaintiffs assert claims for fraudulent misrepresentation, fraudulent omissions, breach of the duty of good faith and fair dealing and violation of California's Unfair Competition Law. The court denies plaintiffs' motion for class certification due to lack of commonality and predominance based on the individualized review necessary to establish materiality, reliance and redress. It grants Prudential's motion for summary judgment based on the statute of limitations with respect to two plaintiffs and denies it with respect to two others, finding that the running of their claims involves genuine issues of material fact. [Filed February 5, 2013] [For publication]

 

25-7-9000 Zavala v. Wal-Mart Stores, Inc., Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Plaintiffs bring this putative class and collective action against Defendant Wal-Mart Stores, Inc., alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Fair Labor Standards Act (“FLSA”) and the common law of false imprisonment. This case is a follow-on case to Zavala v. Wal-Mart Stores, Inc. (“Zavala I”). Plaintiffs allege that Wal-Mart entered into a criminal enterprise to exploit their labor. In Zavala I, the Third Circuit affirmed the dismissal of Plaintiffs’ RICO claims, the “decertification” of the collective action, and the grant of summary judgment on the false imprisonment claims. After the Zavala I collective action was decertified, individuals who had been part of the collective action filed the instant suit. The complaint contains four counts: RICO (Count I), RICO conspiracy (Count II), FLSA (Count III), and false imprisonment (Count IV). In Count III, Plaintiffs assert both individual claims and a collective action under the FLSA. Wal-Mart moves to dismiss Counts I, II, and IV. With respect to Count III, Wal-Mart moves to dismiss only the FLSA collective action claim. Defendants’ motion to dismiss is granted. Counts I, II and IV are dismissed with prejudice. The FLSA collective action claim asserted in Count III is also dismissed with prejudice. Plaintiffs’ individual claims under the FLSA will move forward. [Filed January 31, 2013]

 

36-7-9001 Rodriguez v. City of Camden, Dist. Ct. (Irenas, S.U.S.D.J.) (9 pp.) In this action, plaintiff asserts several federal constitutional claims based on the alleged use of excessive force by a Camden police officer during his arrest, a Monell claim against the city and police department alleging that it was their policy, practice, or custom for police officers to use excessive force and that they failed to properly train and supervise the officers, and state law tort claims against individual officers for assault and battery and intentional infliction of emotional distress. The court considers the motion of the city and police department to dismiss the claims asserted against them as one for judgment on the pleadings and grants in part and denies in part. The Monell claim is dismissed without prejudice because plaintiff has failed to allege any factual allegations concerning the city or the police department and no reasonable fact finder could plausibly infer a pattern or practice of excessive force from a single incident on a single day involving a single officer, and plaintiff has failed to identify any municipal decision maker who adopted the alleged policies or knowingly acquiesced to the use of excessive force and, therefore, no reasonable fact finder could plausibly infer that the officer's conduct resulted from any municipal policy or custom. The motion to dismiss the state law tort claims is denied since those claims were brought only against individual officers and defendants therefore cannot move to dismiss them. [Filed February 11, 2013]