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Vol. 3 No. 193 Decisions Released Oct. 12, 1995 STATE COURT CASES LABOR AND EMPLOYMENT — ARBITRATION 25-2-6701 Rutgers, the State Univ. of N.J. v. Rutgers Council of AAUP Chapters, App. Div. (6 pp.) In light of the decision in Rutgers v. Rutgers Council, No. A-3861-93T5 (App. Div. April 5, 1995), involving another employee’s similar grievance about an alleged breach of confidentiality provisions in a collective bargaining agreement, the chancery judge correctly concluded that dispute in this case was contractually arbitrable. (See prior opinion under DDS No.25-2-5332 in the Alert dated April 5, 1995.) MUNICIPAL LAW — BIDS 30-2-6702 AJM Contractors, Inc., et al. v. City of Passaic, et al., App. Div. (3 pp.) Trial judge’s confirmation of award of municipal paving contract to second lowest bidder, on the basis that the lowest bidder was not responsible, is affirmed, since the record reveals numerous instances of lowest bidder’s delay on projects, several contract litigations, and principal’s untruthful answer to at least one bid question. NEGLIGENCE — PRO SE DEFENDANTS 31-2-6703 Karen Landry, et al. v. Denise Thomas, et al., App. Div. (6 pp.) Pro se defendant’s interrogatory responses were sufficiently complete, such that trial judge mistakenly exercised his discretion in his ruling that defendant could participate at trial only in a limited way; therefore defendant is entitled to a new liability trial in which she and her witnesses may fully participate. (See related case under DDS No. 36-2-6705 below.) PHYSICIAN/PATIENT 29-2-6704 Michael Bennett, an infant, etc., et al. v. Overlook Hosp., et al., App. Div. (11 pp.) Evidence was sufficient to support jury verdict in favor of pediatrician on mother’s suit contending t hat doctor was responsible for her child’s neurological impairment, and any evidentiary errors or mistakes in the charge were harmless. TORTS — NEGLIGENT HIRING 36-2-6705 Karen Landry, et al. v. Denise Thomas, et al., App. Div. (13 pp.) Jury’s verdict for plaintiff, finding that apartment complex management had negligently hired superintendent’s wife, who assaulted plaintiff, is reversed, since there was no proof of prior assaultive conduct, tendency to antisocial behavior or adverse employment history that would have been discoverable or foreseeable by management’s reasonable inquiry. (See related case under DDS No. 31-2-6703 above.) WORKERS’ COMPENSATION 39-2-6706 Carol Gordon v. Paramount Mortgage Serv., App. Div. (6 pp.) The findings of the compensation judge regarding petitioner’s cardiac disability could reasonably have been reached on sufficient credible evidence present in the record, and is affirmed, but since petitioner’s psychiatrist merely “parroted” plaintiff’s subjective statements concerning her psychiatric disability, that award is reversed. CRIMINAL LAW AND PROCEDURE — EVIDENCE SUPPRESSION 14-2-6707 State, in the Interest of J.B., a juvenile, App. Div. (9 pp.) Under the totality of the circumstances, where police officers were patrolling in a high drug-trafficking area and responded to a citizen’s telephoned complaint, and where juvenile fled from the officers as they approached and was later found crouched in an attempt to hide from them, the officer’s lifting of the juvenile to his feet, revealing drug evidence over which the juvenile was crouching, was reasonable and the order suppressing the drug evidence is reversed. [Approved for publication Oct. 12, 1995. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES BANKING 06-7-6708 Mountain Parsippany Corp., et al. v. Howco Residential Dev. Inc., et al., U.S. Dist. Ct. (28 pp.) Partners’ allegations that they were fraudulently induced into forming the partnership and contributing capital to venture by bank’s oral promises to provide construction financing are without merit under the doctrine set forth in D’Oench, Dhume & Co. v. FDIC, 315 U.S. 447 (1942)–precluding obligors from asserting side deals or secret agreements that would tend to diminish the FDIC’s interests after the FDIC has taken over a failed institution–and summary judgment is granted to both the FDIC, as receiver of the failed bank, and to the failed bank’s wholly-owned subsidiary. COMMERCE — PREDATORY PRICING 08-7-6709 Storis Inc. v. GERS Retail Systems, Inc., U.S. Dist. Ct. (4 pp.) Because market power is an essential element to sustain a predatory pricing claim under the Robinson-Patman Act, and the court has previously found that plaintiff’s complaint failed to allege sufficient market power on behalf of defendant in dismissing plaintiff’s antitrust claims, the predatory pricing claim also is dismissed. (See prior opinion in this case under DDS No. 08-7-5819 in the Alert dated June 8, 1995.) CONTRACTS — CHOICE OF LAW 11-7-6710 Crossroads Cogeneration Corp. v. Cooper Indus. Inc., et al., U.S. Dist. Ct. (11 pp.) In a case involving defendant’s production of engines for plaintiff, although the court declares that Ohio law will control both the distribution agreement and the operations and maintenance agreement entered into between the parties, and that New Jersey law will control the sales agreement and claims flowing from the condition of the equipment sold, there are factual issues which must be resolved at trial precluding the court from ruling on the remedies motions at this time. JURISDICTION — LAW AGAINST DISCRIMINATION 24-7-6711 Ruth C. Rainford v. Practising Law Inst., et al., U.S. Dist. Ct. (14 pp.) Since defendant has not met its burden of showing that joinder of a non-diverse defendant was fraudulent, the court lacks subject matter jurisdiction and plaintiff’s motion to remand is granted. LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-6712 William Brown Jr., et al. v. Local #52, et al., U.S. Dist. Ct. (33 pp.) In plaintiffs’ case against union and brewery for racial discrimination, (1) as plaintiffs have not met the class certification requirements, their certification application is denied, (2) plaintiffs’ Title VII claims will be limited to those asserted before the EEOC, and the remaining claims will be dismissed for failure to exhaust administrative remedies, (3) plaintiffs’ Section 1981 claims are adequately pled and defendants’ motion to dismiss is denied, and (4) plaintiffs’ claims under Sections 301 and 401 are dismissed. A

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