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Vol. 4 No. 28 Decisions Released Feb. 12, 1996 Editor’s Note: There are no state cases today, as the courts are closed for the Lincoln’s Birthday holiday. FEDERAL COURT CASES ATTORNEYS — EX PARTE COMMUNICATIONS — F.E.L.A. 04-7-7855 John W. Blasena v. Consol. Rail Corp., etc., U.S. Dist. Ct. (7 pp.) Order denying defendant’s motion seeking to compel plaintiff to provide all statements obtained ex parte from railroad employees by plaintiff’s counsel was proper, since the application of RPC 4.2 would have a chilling effect upon that part of the Federal Employer’s Liability Act which prevents a railroad from hindering or preventing any employee from voluntarily furnishing information to a person in interest. (For prior opinion, see DDS No. 04-7-6783 in the Alert dated 10/19/95.) BANKRUPTCY — LANDLORD/TENANT — DAMAGES 42-7-7856 In re: Edward S. Cohen, Debtor; Hilda De La Cruz, et al. v. Edward S. Cohen, U.S. Dist. Ct. (24 pp.) When debtor set rents for plaintiffs/tenants, he impliedly represented that those rents were lawful, and, because they were greater than the rents permitted under the applicable rent control ordinance, the debtor committed a misrepresentation, which, under the facts of this case, amounted to reckless indifference to the truth sufficient to satisfy both the knowledge and intent requirements of Sec. 523(a)(2)(A), and the Bankruptcy Court did not err in holding that debtor was responsible to tenants for treble damages under the Consumer Fraud Act, and that this debt was nondischargeable. [For publication. Available online in 3rd Circuit - District Court.] (For prior opinion, see DDS No. 42-6-6389 in the Alert dated 8/16/95.) CONTRACTS — DEFAULTS 11-7-7857 Swissrose Int’l Inc. v. Evergreen Am., et al., U.S. Dist. Ct. (15 pp.) In a case where cheese importer sued several cheese manufacturers for spoiled brie, where defendant’s counsel had a number of conversations with plaintiff’s counsel after plaintiff’s initial failed attempt to serve defendant, and defendant indicated a clear intent to defend the suit, defendant was entitled to three days’ notice prior to the entry of a default judgment, and, since plaintiff has not shown that it will be prejudiced by vacating the judgment, and the defendant has a meritorious defense (since the brie supplied to plaintiff was manufactured by at least eight different companies), motion to vacate default is granted. CORRECTIONS — APPOINTMENT OF COUNSEL 13-7-7858 Reginald Walker, pro se v. R. Kearney, etc., et al., U.S. Dist. Ct. (7 pp.) While the inmate’s claim that prison officials verbally threatened or abused him does not amount to a constitutional violation under Sec. 1983, his complaints of excessive force could support a meritorious Eighth Amendment claim, requiring the court to examine the factors set forth in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993) for appointment of counsel; since the legal and factual issues involved do not appear beyond inmate’s grasp, he is capable of representing himself, and his application for appointment of counsel is denied. CORRECTIONS — CIVIL RIGHTS 13-7-7859 Robert V. Shawger, Jr. v. Morris Cy. Jail, U.S. Dist. Ct. (4 pp.) Judge properly denied inmate’s motion for an independent medical examination on his civil rights claim — that his rights were violated when he was forced to sleep on the jail floor, allegedly injuring his back — since the motion was untimely; the judge also properly denied the inmate’s motion for appointed counsel, since the issues presented were not complex, and there did not appear to be a need for investigation beyond that which the inmate could obtain in representing himself. CORRECTIONS — FALSE ARREST 13-7-7860 Ronald Mazique v. Det. Thomas Milmoe, et al., U.S. Dist. Ct. (7 pp.) Inmate’s claims against detective and municipal court administrator — alleging falsification of his arrest documents — is dismissed because inmate offers not a shred of evidence to support his claim, other than to allege he would call a handwriting expert at trial. INSURANCE — ADVERTISING LIABILITY 23-7-7861 Vickers Inc. v. Seaboard Surety Co., U.S. Dist. Ct. (23 pp.) When a company terminated its relationship with prior distributors, and was sued by them for improperly obtaining and using customer lists, and where the company then sued insurer for defense and indemnification under its “advertising liability policy,” the court finds that the allegations of the complaints establish a causal link between advertising and the tort of unfair competition such that the policy language’s requirement that a tort occur within the course of advertising activities has been satisfied, but, since the tort did not occur in an advertisement, insurer is granted summary judgment. LABOR AND EMPLOYMENT 25-7-7862 Kevin Fouskey, et al. v. Local 153 of the Intl. Union of United Auto. Aerospace, etc., et al., U.S. Dist. Ct. (10 pp.) Plaintiffs’ complaint alleging union’s breach of the duty of fair representation is dismissed, since the plaintiffs have failed to exhaust the administrative remedies prescribed in the applicable labor agreement, and, since they cannot establish that the union violated its duty, their claim against the employer must also fail. LABOR AND EMPLOYMENT — APPOINTMENT OF COUNSEL 25-7-7863 Pat Roland, pro se v. Local 1, I.L.A.-C.I.O., U.S. Dist. Ct. (4 pp.) Employee’s request for appointment of counsel in his action against union — alleging racial discrimination when it failed to represent him in a grievance — is denied, since he has shown neither a meritorious claim, nor that he would be unable to adequately represent himself. LABOR AND EMPLOYMENT — C.E.P.A. 25-7-7864 Dean Mulligan v. Delicato Vineyards, U.S. Dist. Ct. (13 pp.) Employer’s motion for summary judgment on wrongful termination/whistleblowing complaint is granted, since employee has made no showing that his termination was not due to downsizing, but, instead, was as a result of his protestations on the subject of his employer’s need for obtaining certain N.J. licenses, and he also has failed to introduce evidence supporting his claim that he entered into his severance agreement under economic duress. REAL ESTATE — FAIR HOUSING — HANDICAP DISCRIMINATION 34-7-7865 U.S.A. v. Drakesville at Roxbury Homeowners, et al., U.S. Dist. Ct. (6 pp.) In a case where plaintiff had brought suit on behalf of the complainants, a married couple, against a homeowners’ association for handicap discrimination against the couple by refusing to designate a handicapped parking space on private a road near complainants’ home — and one of the complainants, whose handicap had been detailed most extensively in the complaint, passed away, plaintiff’s motion to amend its complaint — to clarify the handicapped status of husband of the deceased complainant — is granted, since defendants were on notice of the husband’s handicap as he was named as an original complainant, and defendant has not shown that the amendment will cause undue prejudice.

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