STATE COURT CASES
Animal Protection League of New Jersey v. New Jersey Department of Environmental Protection, App. Div. (per curiam) (8 pp.) In this appeal, plaintiffs Animal Protection League of New Jersey, Angela Metler and William Crane argue that the Department of Environmental Protection and other state departments and officials infringed the rights guaranteed them by the First Amendment of the Constitution of the United States and Article I, Paragraph 6 of the New Jersey Constitution by denying their application for a permit to protest the black bear hunt scheduled to occur in seven northern counties in December 2011. The bear hunt ended in December 2011, and the special-use permit expired with the hunt’s termination; any decision will have no practical effect on the parties’ positions with respect to the protesting of a bear hunt that ended two years ago. Because the issues raised are moot, the appeal is dismissed.
CREDITORS’ AND DEBTORS’ RIGHTS
Dobriner v. Williams, App. Div. (per curiam) (3 pp.) Defendant appeals from an order denying his motion to vacate a lien placed on personal property. Defendant argues that his son inherited the property from defendant’s mother and therefore the levy was improper because defendant did not own the property levied on. Here, the judge did not make any factual findings or state any legal conclusions. Finding it is uncertain whether plaintiff properly levied on defendant’s property, the appellate panel remands and directs the judge to make the requisite findings of fact and conclusions of law.
Bulusu v. Allstate New Jersey Insurance Company, App. Div. (per curiam) (4 pp.) Plaintiff was the owner of a Millstone Township home. Defendant Allstate New Jersey Insurance Company provided plaintiff with homeowner’s insurance coverage. Plaintiff sought compensation from Allstate as a result of vandalism in the home but Allstate declined, stating that the home’s vacancy for more than 30 days prior to the loss exempted it from coverage. Plaintiff commenced this action and the judge ruled against him. Plaintiff appeals. The Allstate policy clearly stated that it would not provide plaintiff with coverage for damage to the structure or to personal property caused by “vandalism or malicious mischief” if the dwelling remained “vacant for more than 30 consecutive days immediately prior to the vandalism or malicious mischief.” The policy did not define the word “vacant.” Judge O’Brien found that plaintiff last lived at the Millstone home in February 2010, when he moved to Virginia to take a temporary job. Before then, in December 2009, plaintiff stopped making mortgage payments. Plaintiff returned to New Jersey in April 2010, but did not reside at the Millstone home. Plaintiff had the gas turned off, ceased maintaining the lawn, and terminated his contract with an alarm security company. There was a lack of bedroom furniture or clothing in the closets, there was no food, dishes and utensils in the home, and, with the gas turned off, no heat or hot water. Adopting the plain and ordinary meaning of the word “vacant,” the judge appropriately determined the property was vacant for more than 30 days prior to the vandalism and that Allstate was justified in denying coverage.
LABOR AND EMPLOYMENT – DISCRIMINATION
Hennigan v. Merck & Co. Inc., Law Div., Somerset Co. (Coleman, P.J.Ch.) (19 pp.) This dispute arises out of plaintiff’s allegation of gender discrimination and unlawful termination by his former employer, defendant Merck & Co. Inc. Plaintiff’s complaint alleges a violation of the New Jersey Law Against Discrimination (NJLAD), wrongful discharge and fraudulent concealment. Merck filed a motion for summary judgment. Merck argued that plaintiff signed a counseling memorandum acknowledging that continued contact with a female co-worker was “unwelcome, and would lead to disciplinary action, including termination of his employment.” Merck argued that plaintiff violated the counseling memorandum as well as Merck’s workplace harassment policy. Where plaintiff is not a member of the minority and is not representative of persons usually discriminated against in the workplace, the court finds that plaintiff failed to establish a prima facie case of employment discrimination. Plaintiff was unable to show that Merck is “the unusual employer who discriminates against the majority.” Even assuming arguendo that plaintiff put forth a prima facie case of reverse gender discrimination, plaintiff has presented no argument that Merck’s stated reasons for his termination were a pretext for discrimination. The court further finds that plaintiff cannot establish a claim for wrongful discharge. Defendant’s motion is granted and plaintiff’s complaint is dismissed with prejudice. [Decided Dec. 16, 2013.]
LABOR AND EMPLOYMENT – WAGES AND HOURS
Meahan v. Michael Anthony Sign Design
, App. Div. (per curiam) (16 pp.) This appeal arises out of a determination, after a de novo trial in the Law Division, rejecting plaintiff’s claim that his former employer, defendant Michael Anthony Sign Design, failed to pay him wages and commissions in alleged violation of the Wage Collection Law. The appellate panel affirms, finding no basis to set aside the trial judge’s decision and, in particular, his key finding that defendant’s version of the facts was more credible than that of plaintiff. The panel rejects plaintiff’s contention that once he agreed to the compensation terms, he was entitled to receive a salary, rather than have his biweekly payments deemed to be a draw against future commissions, because he never signed the ensuing written agreements drafted by his employer. Employment contracts need not be in writing to satisfy the statute of frauds in New Jersey. In any event, the judge did not necessarily have to rely on the unsigned contracts to reach his decision. Plaintiff’s course of conduct in continuing to work for defendant and receive the proceeds of his biweekly checks after his payments were adjusted is consistent with a legal conclusion that he impliedly agreed to the adjusted terms of his compensation arrangement. Also, the court did not abuse its discretion in denying plaintiff’s extemporaneous request to adjourn the trial in order to allow him to present another former employee of the company as an additional witness.
Penpac Inc. v. County of Passaic, App. Div. (per curiam) (13 pp.) This appeal concerns the liability of Passaic County for one particular debt of the Passaic County Utilities Authority (PCUA). Plaintiff Penpac Inc., a waste management company, holds a judgment against the PCUA for services rendered. Penpac appeals from an order granting summary judgment to Passaic County and dismissing Penpac’s complaint seeking that the county pay the PCUA’s debt. Passaic County agreed to financially assist the authority in a number of agreements, but refused to pay the PCUA’s debt owed to Penpac. The appellate panel affirms. Nothing in the record indicates that the county clearly, unequivocally, or decisively assumed the PCUA’s debt to Penpac. None of the agreements entered into by the county support Penpac’s claim that the county assumed all of the PCUA’s debts, thereby waiving its rights under N.J.S.A. 40:14B-33. By assumption of other debts, Passaic County has not waived the statutory protection afforded the county to avoid paying debts of the PCUA. The statutory framework controls public entities and places broad financial discretion in the hands of state and local government, including whether to assume a particular debt belonging to the authority.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
Everbank v. Larry, App. Div. (per curiam) (5 pp.) In this foreclosure matter, defendant appeals from the Chancery Division order that denied her second motion to vacate a default judgment. Defendant did not deny she was personally served with the summons and complaint; rather, she gave reasons for failing to file an answer. She argued that the final judgment should be vacated because plaintiff lacked standing because it did not possess the note when it filed the complaint. Judge Kessler found there was no dispute that plaintiff had standing because it possessed the original note. The judge also determined that defendant failed to show excusable neglect, a meritorious defense, or exceptional circumstances to warrant relief from the default judgment. The appellate panel affirms, finding plaintiff had possession of the note and an assignment of the mortgage and note prior to filing the complaint. Thus, Judge Kessler correctly determined that plaintiff had standing to file the foreclosure complaint.
TORTS – PERSONAL INJURY
Guerriero v. Visual E-Fex, L.L.C.
, App. Div. (per curiam) (18 pp.) After plaintiff was struck and injured by a go-kart owned by defendant Jeffery Wernes in the parking lot of Wernes’ employer, defendant Visual E-Fex, plaintiff filed a negligence action against Wernes and Visual E-Fex. The trial judge granted Visual E-Fex’s motion for an involuntary dismissal of plaintiff’s claims against it at the close of plaintiff’s evidence. During the presentation of Wernes’ case, the judge permitted him to read portions of a discovery deposition of plaintiff’s expert to the jury. The jury returned a verdict in favor of Wernes. Plaintiff appeals. The appellate panel affirms the judge’s decision to grant Visual E-Fex’s motion to dismiss. It is clear that Wernes was not acting within the scope of his employment with Visual E-Fex when he started the go-kart in the parking lot. As the trial judge found, Wernes was hired to work in the shop, not to sell go-karts. Visual E-Fex was not in the business of selling go-karts and it received no financial benefit from permitting Wernes to park his vehicle in the parking lot with a “for sale” sign. The panel reverses and remands the judgment entered in favor of Wernes, finding the judge mistakenly exercised her discretion in permitting Wernes to read portions of plaintiff’s expert’s discovery disposition to the jury.
State v. R.P., App. Div. (Maven, J.A.D.) (19 pp.) Defendant appeals from his convictions and sentence. The appellate panel affirms the convictions and sentences for first-degree aggravated sexual assault (count two) and second-degree sexual assault (count four). The panel reverses the conviction for first-degree aggravated sexual assault (count three), and remands for a new trial, concluding the lesser-included offense, sexual assault, should have been additionally charged to the jury on that count.
FEDERAL COURT CASES
INTELLECTUAL PROPERTY – COPYRIGHTS
Battle Force, L.L.C. v. John Does 1-39, U.S. Dist. Ct. (Williams, U.S.M.J.) (11 pp.) This action involves the alleged illegal distribution of plaintiff’s copyrighted work, the motion picture
Battle Force (the work). Plaintiff alleges that each of the 39 John Doe defendants used an Internet file-sharing protocol called BitTorrent to copy and reproduce the work without authorization. Plaintiff’s complaint identifies the 39 John Doe defendants by IP address only. The court sua sponte issued an order to show cause as to why all John Does except John Doe 1 should not be severed and dismissed without prejudice. Plaintiff filed a response and argued that joinder of John Does 1 through 39 is appropriate pursuant to Fed. R. Civ. P. 20(a) because each defendant’s alleged infringement occurred through a series of transactions and there exist common issues of both law and fact regarding each defendant. The court finds that joinder is inappropriate due to case management and logistical concerns. In addition to the likelihood that many of the defendants will have different defenses, the court finds that it will be difficult to manage discovery with respect to each of the defendants, given that the identity of each defendant will likely not be discovered at the same time. The court severs plaintiff’s claims as to each defendant; this action shall proceed against John Doe 1 only. [Filed Oct. 25, 2013.]
LABOR AND EMPLOYMENT
New Jersey Building Laborers Statewide Benefit Funds and the Trustees Thereof v. LaConti Concrete & Masonry Inc., U.S. Dist. Ct. (Thompson, U.S.D.J.) (2 pp.) Petitioners New Jersey Laborers Statewide Benefit Funds and the trustees thereof filed a motion to confirm an arbitration award. The motion is unopposed by respondent LaConti Concrete & Masonry Inc. Having considered the written submissions of petitioners in light of respondent’s failure to oppose the motion, and for good cause shown, the court grants petitioners’ motion. [Filed Oct. 28, 2013.]
TORTS – PERSONAL INJURY
Boswell v. Eoon, U.S. Dist. Ct. (Shipp, U.S.D.J.) (11 pp.) At 1:50 a.m. on Sept. 4, 2005, Patrolman Feaster of the New Brunswick Police Department issued a summons to plaintiff Boswell and directed him to leave Boyd Park by way of the exit located at the intersection of Route 18 and Commercial Avenue. Boswell walked into oncoming traffic, where he was struck by two vehicles and sustained grave injuries. Tests performed after the accident revealed that he had a .24 percent blood-alcohol concentration. Plaintiff asserts claims under 42 U.S.C. § 1983 and New Jersey state law against Feaster and his employers, the city of New Brunswick and the New Brunswick Police Department. Count two claims negligence on the part of Feaster and the municipal defendants. Count three is a § 1983 claim against Feaster. In count four, plaintiffs seek to hold the municipal defendants liable under § 1983 for failure to “train and/or supervise” police officers regarding “the proper care of intoxicated [and homeless] persons” caused Feaster to violate Boswell’s civil rights. Count five sets forth a claim against both Feaster and the municipal defendants under the New Jersey Civil Rights Act. In count six, Ethel Boswell, Boswell’s mother, seeks to recover for his past and future medical and nursing bills. Defendants seek summary judgment on counts two, four, and five. The court grants summary judgment to New Brunswick and the New Brunswick Police Department on Plaintiffs’ civil rights claims and denies summary judgment in all other respects. [Filed Oct. 30, 2013.]