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STATE COURT CASES ADMINISTRATIVE LAW – GUN PERMITS 01-2-9627 In re Application of Peterson, etc., App. Div. (per curiam) (8 pp.) On the prosecutor’s appeal, the appellate panel reverses the Law Division order granting respondent Peterson’s application for a firearms purchaser identification card. The judge found that Peterson credibly testified that he had not knowingly provided false answers respecting 7-year-old domestic-violence offenses, and determined that issuance of the FPIC would not be contrary to the public health, safety and welfare because he had remarried, had a responsible job, and posed no public threat. He rejected the prosecutor’s argument that respondent should be precluded from obtaining the FPIC by N.J.S.A. 2C:58-3(c)(8), as a person whose firearms were seized pursuant to the Prevention of Domestic Violence Act, concluding that application of the statute would be unfair to respondent because it was enacted three years after he voluntarily surrendered his weapons. The appellate panel disagrees with the judge’s determination that the statute does not apply to an FPIC applicant whose weapons were seized prior to the enactment of the statute. It further rejects respondent’s argument that the statute violates the constitutional ex post facto clause, and his constitutional right to bear arms. [Decided Feb. 11, 2008.] ATTORNEY/CLIENT – DISQUALIFICATION OF FORMER STATE EMPLOYEES 04-2-9616 In the Matter of Middlesex County Prosecutor’s Office Investigation No. I-07-916, App. Div. (per curiam) (7 pp.) The court reverses the Law Division order disqualifying Patricia Prezioso, Esq., a former assistant attorney general and deputy director of the Division of Criminal Justice, from representing any party in this matter for a period of six months from the date of her resignation from state employment, pursuant to Rule of Professional Conduct 1.11(a)(3). A state trooper retained Prezioso, three months after she left her position, to represent him in a case in which the prosecutor’s office was investigating seven troopers who were accused of being involved in a sexual assault of a 25-year-old woman in the trooper’s home. The motion judge reasoned that, because of the attorney general’s supervisory authority of, and close relationship with, the prosecutor’s office, there was a sufficient nexus between the two for the purposes of the cited ethics rule, and that the interest of Prezioso’s client was materially adverse to both the prosecutor’s office and the AG, inasmuch as both worked together to represent the interest of the state. The appellate court holds that the motion judge erred in rejecting evidence that Prezioso was never employed by, or involved, directly or indirectly, in any matter concerning a county prosecutor’s office; had no connection whatsoever to the investigation while she worked for the AG’s office; and left her employment prior to the alleged sexual assault. Under the cited rule and N.J.S.A. 52:13D-17, Prezioso is not disqualified from representing any trooper implicated in this matter. [Decided Feb. 8, 2008.] ATTORNEYS – ETHICS 04-01-9628 Complainant v. King, Esq.; Complainant v. Brantley, Esq., Office of Attorney Ethics (Morejon, Special Ethics Master) (66 pp.) Concluding the initial phase of N.J.’s oldest pending ethics proceeding, the special master recommends disbarment for attorney David Brantley and a three-year suspension for his wife, attorney Sherry Dorell King, for their handling of a $30,500 cash real estate deposit. Inter alia, the master found that, instead of placing the money in his attorney trust account, as required by the ethics rules, Brantley kept the money, at first, in his office safe, and then in his home safe, and co-mingled it with his own money. King represented the same client when Brantley was suspended from practice, and was faulted for not safeguarding the deposit monies, despite knowing they were kept in the safe, and for not discussing the funds with either Brantley or the client. [Decided Jan. 18, 2008.] CIVIL RIGHTS – PARENT/CHILD – FOSTER CHILDREN – ABUSE AND NEGLECT – REGISTRY – DEFAMATION 46-2-9654 Antrom v. D.Y.F.S., et al., App. Div. (per curiam) (6 pp.) Plaintiff’s name was placed on the Child Abuse Central Registry in 1991 after three foster children were removed from her care because of substantiated physical abuse, although she adamantly disputed this finding. She attempted to become a foster parent again in 1999, and learned of the registry listing. From then until 2005 she sought to have her name deleted from the registry; and, in 2005, for reasons not contained in the record, the Division of Youth and Family Services advised that the abuse charge was not substantiated, and plaintiff’s name was finally removed from the registry. She thereafter filed this suit seeking $10 million in “actual” damages, as well as unspecified punitive damages, for violation of her due process rights. The appellate panel upholds the trial court’s dismissal of the suit based on both the general personal injury statute of limitations and the Tort Claims Act’s statute of limitations, since plaintiff knew her name was listed in the registry in 1999. The judge also properly rejected the theory that maintaining plaintiff’s name on the list constituted a continuing tort, tolling the statute of limitations until the removal of her name, since New Jersey follows the single-publication rule for the accrual of defamation actions. [Decided Feb. 13, 2008.] CRIMINAL LAW AND PROCEDURE – LURING CHILDREN 14-2-9641 State v. Bogan, App. Div. (per curiam) (24 pp.) During the course of defendant’s trial, the court admitted certain incriminating statements that defendant had made to the police after they entered his girlfriend’s apartment without a warrant. Because the warrantless entry was unconstitutional, the trial court erred in denying defendant’s pretrial motion to suppress the fruits of that entry. Consequently, the appellate panel vacates defendant’s conviction and remands for a new trial. [Decided Feb. 11, 2008.] EDUCATION – BOARDS OF EDUCATION – ETHICS 16-2-9629 In the Matter of the Suspension of Knight, etc., App. Div. (per curiam) (5 pp.) The appellant, a member of the Brick Township Board of Education, approached a member of the public, Lanzieri, after the public portion of the meeting concluded and the board broke before going into executive session. Upset by comments Lanzieri had made during the public meeting, she accosted him in an aggressive manner, engaged in physical contact with him, angrily berated him, and threatened him. On Lanzieri’s complaint, the appellate court affirms the final decision of the State Board of Education, upholding the finding of the School Ethics Commission that appellant violated N.J.S.A. 18A:12-24.1e of the School Ethics Act, and affirming the two-month suspension from the township board of education, imposed by the acting commissioner of the Department of Education. [Decided Feb. 11, 2008.] EDUCATION – DANGEROUS CONDITION OF SCHOOL – DISCOVERY SANCTIONS 16-2-9630 Sgarlato, etc., et al. v. Bd. of Education of Caldwell-West Caldwell, App. Div. (per curiam) (9 pp.) Plaintiffs’ lawsuit on behalf of their minor child – alleging that defendants negligently or intentionally created, concealed, tolerated and/or failed to eliminate a dangerous and/or defective condition on the school property – was improperly dismissed as a result of their failure to comply with discovery requests. Noting from the transcript that a hostile relationship existed between the plaintiffs and their attorney; that the judge even acknowledged a conflict of interest between them; and that plaintiffs seemed surprised to learn that their interrogatories had not been answered, the panel concludes that the fault lay with the attorney, not the plaintiffs. The trial judge should not have dismissed the minor’s complaint, but should have adjourned the motion and granted plaintiffs leave to obtain new counsel. [Decided Feb. 11, 2008.] FAMILY LAW – ALIMONY 20-2-9631 Majkrzak v. Majkrzak, App. Div. (per curiam) (12 pp.) Carefully reviewing the history of the parties’ marriage and the financial situations of each party, and noting the enormous disparity in the parties’ income, the Family Part judge aptly ordered defendant to pay plaintiff $500 per week in permanent alimony. Despite defendant’s arguments to the contrary, the judge did not err by applying a “projected standard of living” to calculate plaintiff’s need; by failing to consider either the impact of equitable distribution or the plaintiff’s full earning capacity, or by failing to distinguish between defendant’s earning capacity prior to the marriage and his earning capacity established during the marriage. [Decided Feb. 11, 2008.] FAMILY LAW – CHILD SUPPORT 20-2-9632 Dunn v. Dunn, App. Div. (per curiam) (8 pp.) The Family Part judge accurately denied the latest of defendant’s applications to modify child support, finding no demonstrated change of circumstances in defendant’s arguments that (1) plaintiff had remarried; (2) plaintiff had boarders in the former marital home and was receiving rental income for three years; (3) his business had failed; and (4) at age 60, he was having difficulty finding meaningful work. Inter alia, defendant failed to file a current CIS to accompany his motion, creating a “woefully inadequate record.” Moreover, the judge accurately found that defendant had “not demonstrated efforts to bring [his] income back up.” [Decided Feb. 11, 2008.] 20-2-9655 Ellison v. West, App. Div. (per curiam) (6 pp.) Because the motion judge made neither findings of fact, nor reached conclusions of law, the appellate panel is unable to review, in any meaningful fashion, her order awarding child support to plaintiff, and denying defendant’s request for a downward modification, and reverses. Inter alia, the panel notes that (1) defendant argued that, on occasion, double the amount of weekly support had been deducted from his paycheck; however, the judge made no assessment of whether defendant was due any credits; (2) the judge also reduced the amount of life insurance coverage to be maintained by defendant, from $500,000 to $150,000, without any explanation whatsoever; (3) the judge ordered each party to bear his or her own counsel fees, even though this was plaintiff’s third time in court since 2005, due solely to defendant’s conduct; and (4) the judge, in her most egregious omission, failed to make findings as to the amount of support itself, which was the whole point of the proceeding. [Decided Feb. 13, 2008.] FAMILY LAW – CUSTODY – INJUNCTIVE RELIEF 20-2-9633 M.N., et al. v. M.N., et al., App. Div. (per curiam) (11 pp.) The plaintiffs, father and stepmother of defendant M.N., filed a complaint seeking custody of M.N.’s two children when plaintiffs learned that M.N. intended to move out of the state with the children. The Family Part initially restrained M.N. and the children from leaving the state prior to the completion of certain evaluations (a psychological evaluation of the children and an evaluation of defendants’ home); however, on receipt and review of those evaluations, the judge aptly dissolved the restraints, denied any additional restraints, and dismissed plaintiffs’ custody litigation. Although plaintiffs do not appeal the final dismissal of their action, they appeal two of the orders denying temporary relief, including appointment of a guardian ad litem. Giving deference to the special jurisdiction of the Family Part and the expertise of its judges, the appellate court affirms. Despite plaintiffs’ numerous complaints of defendants’ possible abuse of the children, all Division of Youth and Family Service investigations concluded that the children were not at risk and that there was no evidence of abuse. Moreover, the evidence did not raise a genuine factual issue about plaintiffs’ status as the psychological parents of the children. Further interference with defendants’ parental rights was not warranted on the basis of plaintiffs’ allegations. [Decided Feb. 11, 2008.] FAMILY LAW – DOMESTIC VIOLENCE 20-2-9634 Rogers v. Rogers, App. Div. (per curiam) (11 pp.) The appellate panel holds that the final restraining order was justifiably entered, on a finding of simple assault, in favor of the 18-year-old plaintiff against defendant, her father. Plaintiff alleged that, in an argument, defendant pushed plaintiff against a shelf with his hands around her throat. Defendant asserted that he only grabbed her by the shoulders after she told him to “go f**k himself.” However, the testimony of a store employee who intervened and pulled defendant off plaintiff, as well as police-authenticated photographs of plaintiff’s bruises, corroborated her version of events. The panel rejects defendant’s argument that the trial judge should have granted his motion for a new trial based on his claim that he was prejudiced by defects in the procedures below, including (1) the speed with which the matter came on for final hearing; (2) his not being advised of his right to counsel; and (3) error in the judge’s not allowing him to cross-examine his daughter until after he had given his own direct testimony, and after she was allowed to rebut what he said. The panel also agrees with the judge’s finding that the parties’ relationship as former members of the same household was sufficient to invoke the act’s jurisdiction. [Decided Feb. 11, 2008.] HEALTH – VISITING NURSES – NEGLIGENCE – MEDICAL SUPPLIERS – HOYER LIFTS – RES IPSA LOQUITUR 22-2-9635 Goldberg, et vir. v. At Home Medical, Inc., et al., App. Div. (per curiam) (19 pp.) The panel reverses the involuntary dismissal of plaintiffs’ negligence complaint against the defendant, At Home Medical, a supplier that supplied and serviced the bed and Hoyer lift of a patient for whom plaintiff served as a visiting nurse. During defendant’s employee’s servicing of the bed, plaintiff was injured while attempting to maneuver the patient, who weighed more than 300 pounds. He fell on plaintiff’s hand while she was trying to release him from the Hoyer lift by cutting the straps (because the lift would not lower the patient to the bed), and she felt her back pop. Ultimately, she underwent lumbar surgery for her injury. Plaintiff sued defendant, alleging that it was negligent in failing to properly maintain and service the Hoyer lift. Plaintiff produced neither an expert nor the actual Hoyer lift, and her product liability claim against the manufacturer was dismissed on summary judgment. The negligence claim proceeded to trial under the theories of negligence and res ipsa loquitur, but the judge dismissed the matter at the end of plaintiff’s case, finding that, inter alia, the decision to cut the straps, even if made by the defendant’s technician, was an intervening force, unrelated to whether the lift malfunctioned; and plaintiff failed to show that the instrumentality causing the accident was within the exclusive control of defendant. The panel agrees that plaintiff did not meet the elements of res ipsa loquitur, adding that plaintiff’s own voluntary act of cutting the straps also defeated her entitlement to a res ipsa inference. However, the inquiry does not end there, as her claim that the defendant was negligent, through the actions of its employee in cutting the straps, should have survived the motion to dismiss. [Decided Feb. 11, 2008.] INSURANCE – FIRE DAMAGE – FRAUD – MOLD CONTAMINATION 23-2-9656 Lucky, et ux. v. Liberty Mutual Fire Ins. Co., et al., App. Div. (per curiam) (21 pp.) The defendant-insurance carrier paid plaintiffs more than $200,000 toward fire damages to their home, and related expenses, but refused to pay for additional mold remediation in the basement, which was caused by the flooding of the basement during firefighting efforts. Plaintiffs sued, also joining the public adjuster, general contractor and subcontractors as defendants. In this opinion, the appellate court affirms the trial court’s (1) denial of plaintiffs’ motion seeking to extend discovery (consequently barring plaintiffs from producing expert testimony), due to plaintiffs’ continued discovery defalcations and failed to show due diligence or exceptional circumstances; and (2) dismissal of plaintiff’s claims against all parties except the general contractor, which order is reversed. Inter alia, as to the insurance carrier, evidence showed that plaintiffs submitted fraudulent bills to the carrier for payment of their living expenses, and the judge aptly found that their fraud precluded their claim for coverage. As to the other defendants, without any expert testimony, plaintiffs failed to prove their claims; there was no evidence implicating the defendants, other than plaintiffs’ assertion that the continued existence of the mold condition proved that defendants did not perform properly. However, as to the general contractor, the appellate court noted that plaintiffs had hired an environmental firm before the litigation began to conduct a post-remedial evaluation; and this report contained a statement that the general contractor’s painting of the floors, walls, and other surfaces in the basement of the home was “ill advised” and a contributing cause of the contamination. This was sufficient to defeat the contractor’s summary judgment motion. [Decided Feb. 13, 2008.] LANDLORD/TENANT – DISCRIMINATION – SECTION 8 RENT SUBSIDIES 27-2-9636 Miller v. Brookside at Somerville, L.L.C., App. Div. (per curiam) (16 pp.) The court below properly denied the 77-year-old plaintiff’s request for emergent relief and vacated an order to show cause with temporary restraints in this action alleging that defendant discriminated against plaintiff, a partially blind Section 8 participant, in violation of the New Jersey Law Against Discrimination and the Fair Housing Amendment Act, when it declined his rental application; wrongfully refused to examine his actual credit history; and failed to provide him with reasonable accommodation. Defendant stresses that it considered plaintiff’s Section 8 income and his proffered explanations and corrective information regarding his allegedly erroneous credit report, but that he still fell short of defendant’s criteria. The evidence reflects that defendant did not discriminate against plaintiff because it used the same criteria to evaluate plaintiff’s application as it would have used with other prospective lessees, employing a standardized, objective check of the applicant’s creditworthiness. [Decided Feb. 11, 2008.] NEGLIGENCE – PREMISES LIABILITY – MARINAS 31-2-9657 Christensen, et ux. v. Fairbanks Motel & Marina, L.L.C., App. Div. (per curiam) (3 pp.) The plaintiff, a self-employed commercial fisherman, rented a berth from defendants. A ladder was attached to the side of the berth, going down into the water, so that the boat docked there could be accessed, whatever the tide. Plaintiff was injured when a rung in the ladder gave way while he was going into his boat, causing him to fall. Dismissing plaintiff’s negligence suit, the trial court justifiably found that plaintiff, who did not retain an expert, had provided no factual evidence indicating that the ladder rung was rotten or defective in any respect. In fact, no evidence respecting the condition of the ladder rung that broke was presented at all. Without such evidence, there was no basis for an inference that a reasonable inspection would have revealed any defect in the ladder; thus, the accident did not bespeak negligence, and plaintiff could not prevail under a theory of res ipsa loquitur. [Decided Feb. 13, 2008.] NEGLIGENCE – SLIP AND FALL – ENGINEERING EXPERTS 31-2-9658 Calamia v. Kempton, App. Div. (per curiam) (16 pp.) The court reverses the dismissal of plaintiff’s complaint for injuries she sustained in a fall on a short flight of stairs in the basement of defendant’s home, as she was looking through it with a realtor. Plaintiffs’ experts opined that the staircase violated the building code in several ways, including lack of a handrail, too small of a landing, uneven risers and tread dimensions, insufficient headroom, and no walls. Defendant attempted to have plaintiff’s expert’s testimony completely barred. However, the judge held that the expert could testify as a code construction expert, even though not as an engineer. Defendant subsequently brought an 11th-hour application challenging the expert’s “GA” license and asserting that his opinion was a net opinion. In order to ameliorate the surprise to plaintiff, the trial judge should have declared a mistrial or carried the trial to give plaintiff the opportunity to investigate what was permitted by the “GA” license, to secure a certification, if necessary, and to brief the net opinion issues and whether an expert was even necessary to prove her case. Moreover, the appellate court concludes that the opinion was not a net opinion, and all of the areas covered in the report were well within the expert’s area of expertise as a construction code official, even if he could not testify as an engineer. The court finally notes that plaintiff’s expert was not required to opine on the issue of proximate cause in this particular case; having established through expert testimony that the staircase presented a tripping hazard, plaintiff could, and did, present proof herself of proximate causation, which was within the ken of the average juror. [Decided Feb. 13, 2008.] NEGLIGENCE – SLIP AND FALL – SNOW AND ICE REMOVAL – INSURANCE COVERAGE – ATTORNEYS’ FEES – INDEMNIFICATION 31-2-9637 Hartz Mt. Industries, Inc., et al. v. Preserver Ins. Co., et al., App. Div. (per curiam) (15 pp.) The trial judge erroneously dismissed plaintiff’s complaint seeking indemnification and attorneys’ fees on the ground that the slip-and-fall injuries suffered by defendant Gage were not caused by the negligence of the paving company that contracted to provide snow and ice removal services on plaintiff’s property. As a consequence, the judge concluded that Gage’s injuries did not arise out of the work contemplated by the policy issued by the defendant-insurance company to the paver, and, thus, plaintiff was not entitled to defense and indemnification from the carrier. The appellate panel reverses because plaintiff was an additional insured under the applicable policy, and the accident occurred while the paving company was in the process of salting the property. [Decided Feb. 11, 2008.] PHYSICIAN/PATIENT – AFFIDAVIT OF MERIT – RES JUDICATA 29-2-9638 Hawkins, et al. v. Garden State Surgical Assocs., P.A., et al., App. Div. (per curiam) (11 pp.) A plaintiff, whose medical-malpractice complaint was dismissed in one county for failure to file an Affidavit of Merit, may not file another medical-malpractice complaint in another county against the same defendants, alleging essentially the same facts and seeking the same remedies. Accordingly, the plaintiff’s medical-malpractice complaint was justifiably dismissed, with prejudice, against certain defendants on res judicata grounds. [Decided Feb. 11, 2008.] REAL ESTATE – BREACH OF CONTRACT 34-2-9659 Blue & Gold Dev. Group, Inc. v. DTH 15, L.L.C., et al. v. Havasy, App. Div. (per curiam) (3 pp.) The appellate panel summarily affirms the trial judge’s grant of summary judgment dismissing this breach-of-contract suit in this matter dealing with a piece of commercial real estate. Inter alia, the judge found that whether the time-of-the-essence clause in the contract was reasonable or not was a legal question, not a question for the jury. He relied on the “abandoned impracticability” theory, and found that it was reasonable, and the contract was not breached by defendants, but properly canceled when plaintiffs failed to meet the date. The judge also rejected plaintiffs’ claims that defendant breached the covenant of good faith and fair dealing and tortiously interfered with plaintiff’s contract rights. [Decided Feb. 13, 2008.] REAL ESTATE – WATER DRAINAGE 34-2-9639 Lane, et ux. v. Schmied, et ux., et al., App. Div. (per curiam) (7 pp.) The plaintiffs experienced water problems in their yard soon after purchasing their home, and sued the sellers, the real estate broker, the home inspector, and the adjoining landowners. The matter proceeded to a bench trial solely against the sellers, however, and a judgment of no cause for action was entered in their favor. The appellate panel affirms, finding that the trial judge’s conclusions are well-supported by substantial credible evidence in the record. He found that the drainage problem on-site was caused by activities on the neighboring properties, and that any statements by the sellers to the buyers about drainage issues were more matters of opinion than statements of fact or misrepresentations. The judge obviously made a credibility determination and accepted the word of the seller that plaintiffs were aware that sellers had installed a drainage system after Hurricane Floyd, and she provided no more than an opinion on the future efficacy of that system to address drainage issues on the site. [Decided Feb. 11, 2008.] WORKERS’ COMPENSATION 39-2-9640 Acencio v. Tevco, Inc., App. Div. (per curiam) (2 pp.) The petitioner was injured at work during a lunch break, when he attempted to retrieve and throw back an out-of-bounds ball while he was watching a soccer game played by co-workers. Although the employer did not prohibit these games, which were played regularly during the lunch break, it also did not encourage them in any way. Under the circumstances, the compensation judge accurately held that the injuries were not compensable. [Decided Feb. 11, 2008.] FEDERAL COURT CASES BANKRUPTCY – REAL ESTATE – EQUITABLE TITLE AND LIEN – ORAL AGREEMENTS 42-6-9604 In re Yi, Debtor; Bank, et al. v. Yi, et al., U.S. Bankruptcy Ct. (Steckroth, U.S.B.J.) (12 pp.) The debtors seek partial judgment dismissing two counts in the amended adversary complaint that allege the plaintiffs hold equitable title and an equitable lien on certain real estate. The debtors argue that (1) the purported oral agreement to convey the property does not comport with N.J.S.A. 46:3-17.4, which requires written consent for the transfer of a property held by tenants by the entirety; and (2) alternatively, the oral agreement should be deemed rejected pursuant to � 365 of the Bankruptcy Code, because the trustee has neither assumed nor rejected the executory contract. The court denies the debtors’ motion, finding that genuine issues of material fact abound. These include disputed issues relating to the title and ownership of the property and the intentions surrounding the oral agreement to convey the property. Also, defendants’ legal contentions appear to misconstrue the cited statute and ignore the amended N.J. Statute of Frauds. As to the alternative claim, a trustee’s failure to assume or reject an executory contract does not terminate such agreement, but instead provides the nondebtor party to the contract with a general unsecured claim, rather than an administrative claim for breach of such contract. [Filed Feb. 6, 2008.] CIVIL PROCEDURE – ENFORCEMENT OF SETTLEMENTS – PENSIONS 07-7-9617 Finocchiaro v. Squire Corrugated Container Corp., et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (8 pp.) The court grants the defendants’ motion to enforce the settlement in this case brought by plaintiff with respect to his pension rights from his former employer, defendant Squire. At the time plaintiff left Squire’s employ, he was presented an election form with four options; he chose to receive a lump-sum payment, and to have the taxable portion of his benefit rolled over to his IRA. His attorney asked Squire to assume the obligation of posting a bond to ensure plaintiff’s election, but Squire refused. After three years of negotiation, plaintiff filed suit in state court, and later, when negotiations were still unfruitful, he filed this federal suit. A settlement was placed on the record on June 19, 2007, but subsequent attempts to finalize plaintiff’s election stalled when the parties could not agree on the plaintiff’s election. Defendants argue that plaintiff agreed to elect a joint and survivor annuity as part of the settlement; whereas plaintiff still indicated that he wanted a lump sum. Reviewing the essential terms of the settlement placed on the record, as well as the colloquy with plaintiff, the court agrees with defendants and enforces the settlement with the annuity election. The court denies defendants’ application for attorneys’ fees, however, concluding that plaintiff’s conduct did not rise to the level necessary for such sanctions. [Filed Jan. 28, 2008.] CIVIL PROCEDURE – SUBMITTING FALSE DOCUMENTS TO COURT – SANCTIONS 07-7-9618 Cuttr Holdings, L.L.C., et al. v. Patinkin, et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (12 pp.) In this rancorous litigation stemming from the collapse of business entities and relationships created to manufacture and market a product called “CUTTR CHT,” invented by defendant Patinkin, on the motion of plaintiffs and the third-party defendants for an order striking Patinkin’s pleadings, and for attorneys’ fees and costs, the court finds that Patinkin has, indeed, submitted false documents to the court on three occasions, detailed in the opinion, and orders that he reimburse the movants for any resulting costs and attorneys’ fees. However, the court finds that defendant’s abuses are insufficiently severe to warrant striking his pleadings. [Filed Feb. 7, 2008.] CIVIL RIGHTS – EXCESSIVE FORCE – FALSE ARREST – LIMITATIONS – PLEADING AMENDMENTS 46-7-9643 Monaco v. City of Camden, et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) The plaintiff alleged that defendants violated his constitutional rights by unlawfully arresting him and using excessive force on him when he was mistakenly identified as one of the participants in a fight in the parking lot of a venue hosting a concert plaintiff was attending. The court previously upheld the magistrate judge’s order denying, on limitations grounds, plaintiff’s motion to file a second amended complaint two years after he instituted suit, and four years after the events in question happened. The magistrate judge aptly found that plaintiff had not met the requirements of N.J. law for his amendment to relate back to the date of his original pleading. Here, the court denies plaintiff’s motion for reconsideration, concluding that its prior opinion contained no material legal or factual errors and that plaintiff’s alternative request for relief – that the opinion be certified for interlocutory review – is not called for. Inter alia, plaintiff did not show due diligence in seeking to ascertain the identities of the proposed new defendants before and after the filing of his complaint; and he failed to show that the new defendants had actual or constructive notice of his action before the statute of limitations expired. [Filed Feb. 8, 2008.] CIVIL RIGHTS – EXCESSIVE FORCE – UNREASONABLE SEARCHES 46-7-9605 Norcross, et al. v. Town of Hammonton, et al., U.S. Dist. Ct. (Kugler, U.S.D.J.) (9 pp.) This case arises out of an altercation plaintiff had with a woman, Keenan, who plaintiff saw driving her husband’s truck. As plaintiff suspected that her husband was having an affair, she followed the truck to a Wal-Mart, where her sister, Singletary, later joined her. Plaintiff confronted Keenan, and eventually the police were called. Plaintiff asserted that the responding officers would not listen to her version of events, and admits she pursued them and would not give up. Ultimately, she was placed under arrest and the police attempted to handcuff her. Plaintiff resisted throughout, and asserts that she was assaulted and thrown into the police car, sustaining injuries. When Singletary objected, she, too, was arrested. Both sisters were charged with disorderly conduct and resisting arrest; however, the charges were later dismissed, and this civil rights suit resulted. In the sole remaining claim, plaintiffs allege that the arresting officers used excessive force and violated their state constitutional right to be free from unreasonable seizure. The court here grants the defendants’ motion for summary judgment. Although, in some contexts, the state constitution provides greater protection from unreasonable seizures than the federal Constitution (the federal claim having been already dismissed), these contexts have been specifically delineated by the N.J. Supreme Court, and this is not one of them. As to the excessive-force claim, the court finds that the officers’ actions were objective reasonable in light of the facts and circumstances confronting them. The case is dismissed. [Filed Feb. 5, 2008.] CIVIL RIGHTS – FALSE ARREST 46-8-9645 Hernandez v. City of Union City, et al., Third Cir. (Sloviter, U.S.C.J.) (8 pp.) The District Court properly granted summary judgment in favor of the defendants, dismissing plaintiff’s claims under 42 U.S.C. � 1983 and state law based on his arrest in 2002. Judge Cavanaugh aptly found that the police, who had received an anonymous tip regarding a drug sale and then made a controlled buy from plaintiff, had probable cause to arrest him; that their investigation did not violate plaintiff’s substantive due process rights; that there was no procedural due process violation; and that plaintiff’s state law claim of negligent infliction of emotional distress was barred by the N.J. Tort Claims Act. Although the Tort Claims Act does not apply to the intentional tort claims of malicious abuse of process and false arrest, these both require the absence of probable cause, and, thus, failed as well. [Filed Feb. 12, 2008.] CIVIL RIGHTS – IMMUNTIES 46-7-9619 Bell v. Brigantine Municipal Court, et al., U.S. Dist. Ct. (Bumb, U.S.D.J.) (22 pp.) In this civil rights action arising out of an allegedly illegal stop, search and seizure, the court vacates the default against the defendant-municipal court Judge Broome, and then dismisses the complaint against him, as he is absolutely immune for his actions, which were performed in his judicial capacity. Also, despite naming Judge Switzer as a defendant, plaintiff makes no allegations against him, and the complaint is dismissed as to Judge Switzer as well. As plaintiff makes no Monell allegations, the respondeat superior claims against Brigantine and Egg Harbor Township are dismissed. However, plaintiff’s complaint alleges sufficient facts to state a claim for unlawful search and seizure and false arrest against the patrolman-defendant Lee. [Filed Jan. 29, 2008.] CIVIL RIGHTS – RACIAL PROFILING 46-7-9620 Hilton v. Kronenfeld, et al., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (19 pp.) The African-American plaintiff sued for violation of his civil rights after the vehicle in which he was a passenger, which was also driven by an African-American, was stopped by the defendant Kronenfeld, a state trooper. The trooper identified the vehicle as a target, as he was trained to do by the Drug Interdiction Training Unit, which then promoted racial profiling. The vehicle was being driven safely, within the posted speed limit. Moreover, after the stop, the driver produced a valid license and registration, yet the trooper, without probable cause, ordered both plaintiff and the driver to step outside the vehicle and then frisked the driver, feeling several bulges that he thought were drugs. He then handcuffed the driver, and frisked plaintiff, finding nothing. When an unmarked vehicle belonging to an off-duty police officer arrived at the scene, the trooper aimed his gun at plaintiff and ordered him to get down on the ground. Frightened, plaintiff dove into the car to shield himself from imminent bodily harm or death. Using excessive force, the trooper discharged his gun and shot plaintiff in the leg. Petrified, plaintiff drove from the scene, and surrendered to authorities voluntarily several days later. He was charged with possession of drugs, conspiracy, resisting arrest, eluding, obstructing justice, unlawful taking of the vehicle, aggravated assault on a police officer, and possession of a weapon. Plaintiff pleaded guilty to the drug-possession charge, the remaining charges were dismissed, and he was sentenced to 10 years in prison; however, several years after his release, his conviction was overturned because colorable issues of racial profiling existed. This lawsuit followed. On defendants’ motion to dismiss the second amended complaint, the court dismisses the � 1983 claims for false arrest, illegal search and seizure, false imprisonment, and excessive force, as they are time-barred. The Heck decision does not support the plaintiff’s argument that the statute of limitations did not begin to run until the date his conviction was vacated. The malicious-prosecution claim fails because plaintiff cannot establish that he is innocent of the drug-possession charge, and the trooper had probable cause to prosecute plaintiff; moreover, his conviction was overturned because of the racial-profiling issue, not because he was innocent of the charge. The �� 1985, 1986 and 1988 claims survive the motion. [Filed Jan. 29, 2008.] CIVIL RIGHTS – RACIAL PROFILING – LIMITATIONS 46-7-9646 Elozua, et al. v. State of N.J., et al., U.S. Dist. Ct. (Cooper, U.S.D.J.) (18 pp.) The court grants the defendants’ motion to dismiss plaintiffs’ remaining 42 U.S.C. � 1983 claims under the Fourth and Fourteenth Amendments, arising from a 1991 motor vehicle stop on Interstate 80 and subsequent searches, which revealed evidence of illegal narcotics. Plaintiffs were arrested, and eventually convicted, sentenced and incarcerated; however, their convictions were later vacated because of colorable issues of racial profiling. Although plaintiffs do not dispute that their Fourth Amendment claims for false arrest and imprisonment and illegal search and seizure may be time-barred, they argue that their Fourteenth Amendment equal protection claims for selective enforcement of the law are not, and also argue that equitable tolling should apply to their claims. The court stayed this action until the U.S. Supreme Court decided Wallace v. Kato, which it did on Feb. 21, 2007, holding that the Heck rule of deferred accrual applies only when success in a � 1983 action would impugn an extant conviction. Simply stated, if a plaintiff is not convicted at the time a � 1983 claim accrues, the accrual of the claim is not deferred, and the plaintiff must file it within the applicable limitations period. The court notes that there is a conflict of opinion within the District of New Jersey as to whether the holding in Wallace extends to Fourteenth Amendment claims of selective enforcement. Judge Cooper holds that it does, as the claim arises out of the stops, searches and arrests that occurred in 1991, and is limited to those incidents. This is when plaintiffs first sustained damages and could have filed suit, and, thus, is when their claims accrued. Because the claim was not timely brought, it is time-barred. As to equitable tolling, plaintiffs present no facts that would justify its application to any of their claims under either New Jersey or federal law. [Filed Feb. 11, 2008.] CIVIL RIGHTS – UNLAWFUL STOP AND SEARCH – EXCESSIVE FORCE – FALSE ARREST 46-7-9606 Herrera v. City of New Brunswick, et al., U.S. Dist. Ct. (Walls, U.S.S.D.J.) (35 pp.) The plaintiff allegedly interfered with the arrest of a friend, and contends that excessive force was used in her arrest. She was charged and later found guilty in municipal court of obstruction of justice, and one police officer was found not guilty of the counter-charges plaintiff filed against him for harassment and aggravated assault. Plaintiff’s Superior Court appeal was unsuccessful, and her appellate appeal is still pending. She filed this complaint alleging, inter alia, unlawful stop and search, false imprisonment, malicious prosecution and excessive force against the city, the police officers, the police director and others. The court here grants summary judgment in favor of two of the police officer-defendants with respect to all claims, and the state-law and punitive-damages claims against the city. The motions are also granted with respect to plaintiff’s � 1983 claims based on due process and equal protection violations, and the claims for an illegal stop and search. Summary judgment is denied with respect to the � 1983 claims based on the use of excessive force, the failure to train and supervise the officers, and bystander liability against one of the police officers; and the state-law and punitive-damages claim against the individual defendants. The action is stayed with respect to the � 1983 malicious-prosecution and false-arrest claims pending the resolution of plaintiff’s state-court appellate proceeding. [Filed Feb. 1, 2008.] CONTRACTS – TORTIOUS INTERFERENCE – UNFAIR COMPETITION – JURISDICTION 11-7-9621 China America Cooperative Automotive, Inc., et al. v. Estrada Rivera Enterprises Corp., et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) The plaintiffs allege that the Puerto Rican defendants have tortiously interfered with their exclusive North American right to distribute entry-level automotive products manufactured in China by a company that is not a party to this litigation. They allege specific jurisdiction over defendants via this interference, as well as via a history of communications between the parties with respect to negotiations involving defendants’ alleged expressed interest in becoming a “partner/distributor” with plaintiffs for the sale of the Chinese cars in Puerto Rico. The court is inclined to dismiss the action for lack of personal jurisdiction, concluding that, even under plaintiffs’ theory with respect to the communications, the phone calls and e-mails defendants directed to New Jersey dealt with the possibility of a business relationship between the parties, and not defendants’ alleged interference with plaintiffs’ Chinese contract or business expectancy. This litigation cannot be fairly said to arise out of, or relate to, defendants’ contacts with New Jersey. As to the “effects test” theory, plaintiffs have alleged intentional torts and are able to establish the first prong of the test, but fail to meet the remaining prongs. The damages plaintiffs allege, and the brunt of the harm, will occur in Puerto Rico, not New Jersey. Finally, the defendants’ actions were not directed at New Jersey, but at Puerto Rican commerce. Since the District Court in Puerto Rico might have jurisdiction over this suit, the court gives plaintiffs 10 days within which to consent to a transfer, failing which, the case will be dismissed. [Filed Jan. 28, 2008.] CONTRACTS – UNFAIR COMPETITION – EVIDENCE 11-7-9607 Floorgraphics, Inc. v. News America Marketing In-Store Svcs., Inc., et al., U.S. Dist. Ct. (Hughes, U.S.M.J.) (47 pp.) The parties compete in the in-store marketing industry, entering into exclusive contracts with retail and wholesale grocery stores, drug stores, and mass merchandisers to install ads on the shelves and floors of their stores. Plaintiff alleges that defendants engaged in a variety of illegal and tortious practices designed to oust plaintiff from retailer contracts, poison its relationships with its clients and run it out of business. These practices include making false and misleading statements about plaintiff’s business to clients; structuring bids in order to falsely portray them as more attractive than those of plaintiff; and allegedly hacking into plaintiff’s password-protected Web site. Here, the court considers defendants’ motions in limine to exclude the trial testimony of all six of plaintiff’s proposed experts. The court reviews each expert in turn, along with defendants’ objections to each, applies the law on qualifying experts and grants the motion with respect to two of the experts, while denying them as to the other four. [Filed Feb. 5, 2008.] CONTRACTS – UNFAIR COMPETITION – INJUNCTIVE RELIEF – RESTRICTIVE COVENANTS – EMPLOYMENT 11-7-9608 Cancer Genetics, Inc. v. Hartmayer, et al., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (22 pp.) The defendant Hartmayer, who helped to found the plaintiff CGI in 1999, and was an officer and director, was asked to sign an employment agreement, containing a restrictive covenant, in 2002. Whether he signed it is hotly disputed. He did, however, sign plaintiff’s Code of Business Ethics, which contained restrictive language as well, but also a disclaimer, the effect of which is also disputed. Hartmayer eventually went to work for defendant NDI, and plaintiff alleges that this relationship violated both the employment agreement and the code. It also alleges that Hartmayer attempted to solicit potential CGI employees, disparaged plaintiff’s products to a potential investor, trespassed and stole files and records, attempted to lure plaintiff’s customers away, and disclosed plaintiff’s trade secrets to competitors. On plaintiff’s application for injunctive relief, the court finds that plaintiff has failed to carry its burden of demonstrating either a reasonable likelihood of success on the merits or irreparable injury in the absence of such relief. As a result, the court denies its application for an injunction against defendants and grants defendants’ motion to dismiss the claims (1) under the Lanham Act; (2) for common-law and N.J. statutory unfair competition; and (3) for breach of contract. The court also dismisses those parts of that count alleging misappropriation of a trade secret and violation of the covenant of good faith and fair dealing that rely on the enforceability of the restrictive covenant in plaintiff’s code. The sole remaining issue is whether defendant Hartmayer executed the employment agreement. [Filed Feb. 5, 2008.] CRIMINAL LAW AND PROCEDURE – POLITICAL FRAUD AND CORRUPTION – SEVERANCE 14-7-9652 U.S.A. v. James, et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (23 pp.) This case involves criminal charges against Sharpe James, the former mayor of Newark, for (1) a credit-card scheme, in which he misused city credit cards and other means to pay personal, nongovernment expenses; (2) a real estate scheme, whereby he misused his official position to improperly favor the co-defendant, Tamika Riley, by steering sales of city-owned property to her at steeply discounted prices; (3) a Section 8 scheme, in which Riley misrepresented her income and employment status to fraudulently obtain housing subsidies from the state to assist her in paying her rent; and (4) various tax law violations. James moved to dismiss the indictment, and Riley moved to sever the claims against her. The court denies the motion of defendant James to dismiss the indictment against him, as it is facially valid and each count, reviewed herein, is sufficiently pleaded. The court grants Riley’s motion for severance in part, insofar as James’s credit-card scheme, but denies it in all other respects. With all references to the credit-card scheme removed, the conspiracy charge will remain tied to the real estate scheme, the Section 8 scheme, and the tax charges. [Filed Feb. 11, 2008.] DEBTOR/CREDITOR – COLLECTION LETTERS – FDCPA NOTICE REQUIREMENTS 15-7-9622 Stair v. Thomas & Cook, et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (15 pp.) The court holds that the debt collection letter sent by defendants to plaintiff violated the notice requirements of �� 1692e(10) and 1692g of the Fair Debt Collection Practices Act because the statutory notice provisions are sufficiently contradicted by the letter’s remaining contents demanding immediate payment on threat of litigation, that the least sophisticated debtor would harbor serious doubts as to his ability to dispute or verify the debt within 30 days. [Filed Feb. 7, 2008.] EDUCATION – IDEA – PENDENT PLACEMENTS 16-7-9609 P.R., et al. v. Roxbury Twp. Bd. of Education, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (9 pp.) The court finds that, pursuant to the administrative law judge’s Oct. 31, 2007, decision, the plaintiffs’ daughter’s current educational placement is in the Craig School. Under the Individuals with Disabilities Education Act’s pendent placement provision, she is entitled to remain in that placement pending the outcome of her parents’ challenge to defendant’s Dec. 20, 2007, Individualized Education Plan. When the pendent placement provision entitles a student to remain in her current educational placement, the school board shall be liable for the associated costs. Therefore, the court grants the plaintiffs’ request for preliminary injunctive relief compelling the defendant-school board to pay for their daughter to receive special-education and related services at the Craig School, including, but not limited to, the costs of tuition and transportation. The relief is made retroactive to Oct. 31, 2007, and will last for the duration of the proceedings arising from the Dec. 20, 2007, IEP, unless the state or local educational agency and the parents agree otherwise. [Filed Feb. 6, 2008.] EDUCATION – IDEA – PRIVATE OCCUPATIONAL THERAPY 16-8-9610 M.S., et al., etc. v. Mullica Twp. Bd. of Education, Third Cir. (per curiam) (7 pp.) The plaintiff unsuccessfully requested that the defendant-school board approve outside-provider private occupational therapy for her son’s developmental issues, which she felt were too complicated for the school to handle. While the Child Study Team (CST) conducted re-evaluations of the child, and negotiations continued, plaintiff unilaterally removed her son from the public school and enrolled him in private school, where she stated that his motor skills were improving. The administrative law judge found that the board had made every effort to provide plaintiff’s son with an appropriate education, but that plaintiff had obstructed the CST at every turn. The ALJ held that plaintiff was not entitled to tuition reimbursement under these circumstances, but that the board was required to pay for the cost of the re-evaluations. The District Court found that the plaintiff’s refusal to cooperate with the board unreasonably prevented it from creating an IEP for the boy, and his parents should not be reimbursed for private school tuition, the evaluations of their son, and related services. Even absent plaintiff’s unreasonableness, Judge Joseph Irenas found that the evidence did not support the plaintiff’s argument that the IEP, which was in place when she decided to remove her son to private school, failed to provide him with a free and appropriate public education. Rejecting plaintiff’s contentions of error, the circuit panel affirms, for the reasons set forth in Judge Irenas’s “comprehensive and excellent opinion.” [Filed Feb. 7, 2008.] ENVIRONMENTAL LAW – SITE CLEANUP 17-7-9647 Maxxam Group, Inc. v. U.S.A., et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (10 pp.) This is a cleanup action involving the Unexcelled Chemical site, a former industrial facility in Cranbury that has been owned by several different entities since 1915. The parties dispute what was produced at the site, with plaintiff stating that it was only munitions, and defendants arguing that both munitions and fireworks were manufactured there. The parties also dispute, inter alia, who the owners were during which time periods, as well as defendants’ role during the active years at the facility, and the various parties’ responsibilities and roles in the cleanup process. Plaintiff claims that defendants oversaw and controlled the munitions work and directed disposal of waste, and seeks contribution from them under alleged CERCLA liability. Defendants deny these allegations. Finding that almost every fact is disputed, the court denies all of the parties’ summary judgment motions. [Filed Jan. 28, 2008.] INSURANCE – COMMERCIAL LIABILITY COVERAGE – FOOD CONTAMINATION 23-7-9648 Travelers Indemnity Co. v. Dammann & Co., Inc., et al.; one other caption, U.S. Dist. Ct. (Debevoise, U.S.S.D.J.) (21 pp.) The defendant Dammann, a producer of raw foods, including vanilla beans, entered into a contract to provide beans to defendant IFF, a manufacturer of food flavorings, including vanilla extract. Later, IFF learned that some of the Indonesian beans it received had mercury contamination, and made a claim for damages against Dammann. Plaintiff Travelers, which issued a general commercial liability policy and an excess policy to Dammann, acknowledged that its policies were effective during the pertinent time period, but denied it owed coverage for IFF’s claims because (1) the damages did not constitute “property damage” as defined by the policies; (2) the failure of Dammann to provide IFF with conforming products did not constitute an “occurrence” under the policies; and (3) the claim was excluded from coverage by the contractual liability exclusion and business-risk exclusions in the policies. Travelers filed this action as a pre-emptive strike, seeking a declaration of nonliability. The court here denies plaintiff’s motion for summary judgment, looking at IFF’s claim letter and determining that it alleges facts that give rise to claims that constitute an “occurrence” as a matter of law; therefore, it cannot be said that Travelers would have no duty to defend against IFF’s allegations in the event that IFF, or some other party, served a more formal demand. Further, the allegations include damage to tangible property – the vanilla extract and production equipment – and the court finds that IFF’s claims are covered by the policy. The exclusions cited by Travelers do not apply because the damage is the IFF’s product – the extract – and not to any product produced by Dammann. Although Dammann’s product – the vanilla beans – provides an important component of IFF’s product, the latter is distinct for these purposes. Loss of use of the production equipment also constitutes “property damage” under the policy. [Filed Feb. 11, 2008.] INTELLECTUAL PROPERTY – PATENTS – INTERNATIONAL JUDICIAL ASSISTANCE – DISCOVERY 53-7-9611 AstraZeneca, et al. v. Ranbaxy Pharmaceuticals, Inc., et al., U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (31 pp.) The court grants defendants’ motion seeking that the court issue a letter of request for international judicial assistance in Sweden to take the oral deposition testimony, and to obtain related documents, from three former employees of plaintiffs. The three employees were the named inventors of one of the six patents in this suit; were involved in the development of the commercial product Nexium; and reside in Sweden. Defendants seek the information to prove their claims of invalidity and noninfringement. Plaintiffs have indicated that two of the former employees would appear voluntarily, but, even so, plaintiffs’ counsel indicated that “the Hague process” should be started with respect to the two individuals. The third individual will not voluntarily appear, due to family commitments. Because of the time required by the Hague Convention process, defendants move now, as they cannot wait until some unknown future date to determine if an agreement can be reached with plaintiffs. The court finds that the terms of the request are just and appropriate, and the Hague Convention should be resorted to for obtaining the information sought. A copy of the Request for International Judicial Assistance is attached as an exhibit. [Filed Jan. 29, 2008.] INTELLECTUAL PROPERTY – PATENTS – INVALIDITY OF PATENT – PRIOR ART 53-7-9612 NESEA Constr., Inc., et al. v. Bilco Co., U.S. Dist. Ct. (Kugler, U.S.D.J.) (16 pp.) The court denies defendant’s motion for reconsideration of its prior denial of defendant’s summary judgment motion seeking a determination of invalidity of the plaintiffs’ patent for a roof or access hatch safety railing system. Defendant drew the court’s attention to certain photographs, which it contended were “prior art,” and which showed the scuttle hatch and safety railings of a German battleship that was taken over and subsequently commissioned by the U.S. Navy in 1920. These photographs are, and have been, publicly available in the National Archives well before the date of the patent. The court previously found that (1) defendant had not proffered sufficient evidence that one skilled in the art of safety railings, exercising reasonable diligence, would have located these photographs; (2) the photographs did not qualify as “printed publications”; and (3) defendant did not satisfy its burden of proving that the battleship’s safety railings were in public use more than one year prior to the patent application date. Although the court agrees with defendant that it misapplied the Federal Circuit’s test for a “printed publication,” and now considers the photographs proffered by defendant as “prior art,” it concludes that defendant has still not met its burden of proving the invalidity, because it finds that this prior art does not anticipate the patent, and the patent was not obvious to one of ordinary skill in the art of access hatches and safety railings at the time the invention was made. [Filed Feb. 1, 2008.] INTELLECTUAL PROPERTY – PATENTS – WILLFUL INFRINGEMENT 53-7-9613 Janssen, L.P., et al. v. Barr Laboratories, Inc., et al., U.S. Dist. Ct. (Pisano, U.S.D.J.) (9 pp.) The plaintiffs filed this action alleging, inter alia, that defendants willfully infringed their patent for RAZADYNE ER(r) – a drug used to treat Alzheimer’s- type dementia – by filing with the Food and Drug Administration an Abbreviated New Drug Application (ANDA) and “paragraph IV certifications.” In this opinion, the judge addresses and grants defendants’ motion for judgment on the pleadings as to the willful-infringement claim as it relates to the ANDA filing. Although, under the terms of the Hatch-Waxman Act, an ANDA filer may infringe merely by the filing, without even engaging in any actual commercial activities, because of the artificial nature of this alleged infringement, the ANDA filing gives rise to limited consequences. The Federal Circuit has held that, due to this limitation, the mere filing of an ANDA and relevant paragraph IV certifications cannot form the basis for willful infringement. Applying that rationale, the court finds that plaintiffs cannot sustain their willful-infringement claim. Indeed, the artificial and highly technical nature of defendants’ infringement does not rise to the level of a literal act of patent infringement. This ruling does not prevent plaintiffs from seeking attorneys’ fees if they later successfully argue that the present case is “exceptional.” [Filed Feb. 4, 2008.] JURISDICTION AND VENUE – INSURANCE COVERAGE ACTIONS – MOTOR VEHICLE ACCIDENTS 24-7-9660 U.S. Fire Ins. Co., et al. v. World Trucking, Inc., et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) The proposed intervenor, Carlson, has contingent tort claims against the World Trucking defendants arising from a motor vehicle accident involving a tractor-trailer leased to them. She seeks to intervene in this declaratory judgment action filed by plaintiff U.S. Fire, which seeks a ruling that, because lessees of trailers are not insured entities under the subject policy, it has no obligation to reimburse defendants for liability or expenses as a result of the underlying motor vehicle accident litigation. Because the court determines, sua sponte, that this action should be transferred to Tennessee, where the plaintiffs in the underlying cases filed their own declaratory judgment action seeking a ruling that plaintiff has a duty to indemnify the defendants for the use and benefit of the plaintiffs in the underlying action, the matter is transferred. No prejudice will arise because all parties are already named defendants in the Tennessee suit. Furthermore, the matter before the court is purely legal issue, and considerations regarding convenience to witnesses and access to evidence are irrelevant. This case has no meaningful connection to New Jersey. As a result of the transfer, the court is without jurisdiction to address Carlson’s motion to intervene. [Filed Feb. 13, 2008.] LABOR AND EMPLOYMENT – ETHNICITY AND AGE DISCRIMINATION 25-7-9661 Metzler v. American Transportation Group, L.L.C., etc., et al., U.S. Dist. Ct. (Linares, U.S.D.J.) (11 pp.) The plaintiff alleges employment discrimination charges and wrongful discharge based on her age, national origin, ethnicity and marital status, claiming that defendant, her former employer, generally favored Hispanic employees, non-American employees, employees married to Hispanics, or employees under the age of 40. The court grants defendant’s motion for summary judgment on most of plaintiff’s claims, holding (1) the New Jersey Law Against Discrimination claim is barred by the statute’s election-of-remedies provision, because plaintiff filed her complaint with the Equal Employment Opportunity Commission and the Division on Civil Rights simultaneously; (2) because the LAD claim against the individual defendants is based on the same “grievance,” the election-of-remedies provision likewise bars this claim, regardless of whether the individual defendants were named in the EEOC complaint; (3) the First Amendment claim fails because the defendants are not government actors who could take what would be considered “state action”; (4) the exclusivity of the LAD remedies pre-empts any common-law claims based on the same factual predicate, such as plaintiff’s emotional-distress claims; and (5) the Title VII and Age Discrimination in Employment Act claims, and the Pierce claims against the individual defendants are dismissed because these actions do not provide for individual liability. However, in an abundance of caution, plaintiff’s Pierce claim for wrongful discharge in violation of public policy survives, as it is not pre-empted as coterminous with the LAD because it may find its basis in the N.J. state constitution. [Filed Feb. 13, 2008.] LABOR AND EMPLOYMENT – FAIR LABOR STANDARDS ACT – CLASS ACTIONS 25-7-9623 Ingram v. Coach USA, Inc., U.S. Dist. Ct. (Hayden, U.S.D.J.) (17 pp.) The plaintiff, a bus dispatcher/operations supervisor, sued defendant Coach USA, the parent company of bus companies that operate in the northeast United States, and ONE Bus Inc., one of its operating companies, providing public transportation in Orange, Newark and Elizabeth, and plaintiff’s employer, for violations of the overtime provisions of the Fair Labor Standards Act. In this opinion, the court grants the plaintiff’s motion to (1) conditionally certify this case as a collective action under 29 U.S.C. � 216(b); (2) provide judicial notice, as modified, to all potential plaintiffs; and (3) require the defendants to provide an electronic list of potential plaintiffs and their contact information. Plaintiff has presented sufficient evidence to show that she is similarly situated to other employees who held or hold her job title, who worked more than 40 hours per week, and were not given overtime compensation. [Filed Jan. 30, 2008.] LABOR AND EMPLOYMENT – HARASSMENT – UNFAIR TREATMENT 25-7-9649 Rosa v. Seiko Corp. of America, U.S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) The plaintiff’s performance at defendant Seiko was replete with poor performance reviews because of her inability to relate to co-workers. She filed numerous complaints about being harassed by co-workers and, while Seiko took steps to remove plaintiff from the same area as one allegedly offending co-worker, the investigations generally revealed that plaintiff was the cause of most of the problems. Later, in a downsizing, plaintiff’s position was eliminated because she had the least seniority and the worst performance evaluations. Plaintiff’s EEOC submissions were beset with procedural problems, but the EEOC did issue a right-to-sue letter on plaintiff’s allegation of sexual harassment by a male co-worker in 2002, advising her that her lawsuit had to be filed within 90 days. Plaintiff then filed her suit claiming sexual harassment by a different co-worker in 1994, retaliatory transfer and termination, gender-based hostile work environment, and unequal pay. The court grants defendant’s motion for summary judgment, concluding, inter alia, that (1) plaintiff’s hostile work environment and retaliatory transfer claims are time-barred, and are not saved by the continuing-violation doctrine; (2) her sexual harassment claim is barred because she did not exhaust her administrative remedies on that claim; (3) her retaliatory discharge claim fails under the “prima facie case” step of the McDonnell-Douglas analysis, since plaintiff cannot show that she engaged in protected activity; and (4) the hostile work environment claim fails because, inter alia, plaintiff has not shown that her superiors’ behavior, no matter how uncivil or unbecoming, constituted discrimination or that it was based on plaintiff’s gender, or that her allegations rise to the level of actionable “sexual favoritism.” Finally, plaintiff’s unequal-pay claim fails because she has not met her burden of showing that similarly situated men were paid more than she was; and, even if she could, defendant could show that any differential in compensation was based on the employees’ seniority, not their gender. [Filed Jan. 25, 2008.] LABOR AND EMPLOYMENT – NATIONAL ORIGIN DISCRIMINATION 25-8-9662 Marangos v. Flarion Technologies, Inc., Third Cir. (per curiam) (13 pp.) The District Court properly granted summary judgment in favor of defendant in this employment discrimination action in which plaintiff, a U.S. citizen and Greek native, alleged violations of Title VII and the New Jersey Law Against Discrimination, as well as claims of conspiracy, extortion, gross negligence (the employer’s conduct with respect to child-support payments) and breach of contract under state law. Plaintiff alleged that defendant maintained a hostile work environment based on ethnicity, discriminated against him in assigning work, compensated him with a salary and stock options that were lower than his Russian counterparts, denied him a promotion because he was not Russian, and constructively discharged him. The circuit panel upholds, as supported by the record, Judge Garrett Brown Jr.’s findings that (1) the Title VII claims were barred because plaintiff had not exhausted his administrative remedies by filing an Equal Employment Opportunity Commission charge, and such a charge was now time-barred; (2) as to the hostile work environment and discrimination claims under the LAD, although plaintiff established a prima facie case, he did not show that defendant’s legitimate, nondiscriminatory reasons for assigning work and compensating him were a pretext for discrimination; (3) the constructive-discharge claim failed because there was no evidence that defendant’s conduct before plaintiff resigned was outrageous, coercive or unconscionable; and (4) the hostile work environment claim also failed because there was no severe or pervasive harassment in the way the supervisor ran his department. [Filed Feb. 13, 2008.] LABOR AND EMPLOYMENT – RETALIATION – ARBITRATION 25-7-9624 Bloom v. Jersey City M.U.A., et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (15 pp.) Plaintiff, former director of administration and financial management for the defendant Jersey City Municipal Utilities Authority, sued the defendants alleging retaliation culminating in her termination for reporting what she believed were unethical and illegal wage and benefit withholding practices. Defendants move to dismiss the complaint, arguing that plaintiff’s claims are subject to arbitration. The court finds that plaintiff did enter into an agreement to arbitrate her claims against the defendant JCMUA and its officials, both in their individual and official capacities, and that the agreement is not a contract of adhesion. By signing the 2004 arbitration agreement set forth in the employee manual, she undoubtedly agreed to arbitrate her claims; and a modification of this contractual agreement would have required new consideration and the clear assent of both parties, absent here. The fact that plaintiff did not sign the identical 2005 arbitration agreement did not alter her obligation to arbitrate her claims under the 2004 agreement. The court further finds no congressional intent to preclude parties from arbitrating � 1983 claims, as plaintiff asserts. The agreement is therefore enforceable. However, the court further finds that the obligation to arbitrate does not extend to plaintiff’s claims against the other defendants in this case, including the city, its officials, and the mayor. Therefore, the court stays the case until the conclusion of the arbitration against the JCMUA. [Filed Feb. 8, 2008.] LABOR AND EMPLOYMENT – RETALIATION – SERVICE 25-7-9614 Laffey v. U.S. Marshal Plousis, et al., U.S. Dist. Ct. (Greenaway, U.S.D.J.) (13 pp.) The plaintiff, a court security officer (CSO) in the District Court in Camden, worked for a private security and staffing company that contracted with the U.S. Marshals Service to provide security officers for the federal courts in New Jersey. Plaintiff held the position of lead CSO and had also served as president of the union. Defendant Plousis is the U.S. Marshal for the District of New Jersey, and defendant Rackley is his chief deputy (individual marshal defendants). Defendant Torriero is a CSO who started by working part time in the New Jersey federal courts. When Torriero sought full-time employment, plaintiff told the employer that he did not have the seniority required under the collective-bargaining agreement, and Torriero sued plaintiff, the employer and others. Plaintiff later filed this suit, alleging that the defendants thereafter began a retaliatory campaign of harassment and intimidation against him, ultimately resulting in his suspension and demotion. The court considers defendants’ motion to dismiss, first noting their argument about lack of service. The judge notes that, while plaintiff did not satisfy his burden of demonstrating that the employee at the marshal’s office had apparent authority to accept his first attempt at service on behalf of the individual marshal defendants, he then did effect service a second time, properly, and within the required time frame, as directed by the magistrate judge during a status and settlement conference, and defendants consented to this. They cannot orally consent to the propriety of service and then later refute the sufficiency of service. However, the judge grants the defendants’ motion on substantive grounds. First, the judge notes that a private corporation such as plaintiff’s employer is not a proper defendant in a Bivens action such as this one. The remaining issue is whether Torriero and the individual marshal defendants can be held liable in a Bivens action for allegedly urging the employer to suspend and demote plaintiff. Although the individual marshals were clearly acting under color of federal law, neither they nor Torriero were directly involved in the suspension and demotion of plaintiff. Without authority over the discipline of plaintiff, they could have no hand in the alleged deprivation of plaintiff’s rights. [Filed Feb. 1, 2008.] LABOR AND EMPLOYMENT – SOCIAL SECURITY – DISABILITY BENEFITS 25-7-9615 Gilbert v. Astrue, etc., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (22 pp.) The court considers plaintiff’s appeal from the final decision of the Social Security commissioner, denying her application for disability benefits for back and neck problems, and an enlarged liver. The general issue is whether plaintiff is entitled to benefits for the period beginning with the date of the onset of her alleged disability, through the date of the administrative law judge’s denial of benefits. The specific issue is whether the ALJ’s determination at Step Four of the sequential process – that plaintiff has the residual functional capacity to perform her past relevant work – is supported by substantial evidence. Concluding that it is not, the court remands plaintiff’s case for further proceedings before the commissioner. [Filed Jan. 30, 2008.] LABOR AND EMPLOYMENT – SOCIAL SECURITY DISABILITY BENEFITS – RIGHT TO COUNSEL 25-8-9650 Vivaritas v. Commissioner of Social Security, Third Cir. (Greenberg, U.S.C.J.) (13 pp.) Judge Hochberg upheld the denial of plaintiff’s application for Social Security disability benefits. On plaintiff’s appeal, the circuit panel agrees that the administrative law judge failed to explain the right to counsel adequately to plaintiff, and she therefore did not waive that right knowingly and intelligently. The panel also agrees that the ALJ failed to develop the record adequately with respect to whether plaintiff satisfied the requirements for listed impairment 12.05(C). Therefore, the matter is remanded to the District Court, to remand to the commissioner to develop the record further. [Filed Feb. 12, 2008.] LANDLORD/TENANT – BANKRUPTCY 27-7-9625 In the Matter of Jersey Integrated Health-Practice, Inc., etc., et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (10 pp.) Over the appellant-landlord’s objection, the court affirms the orders of the Bankruptcy Court that (1) set the “cure” amount due from the debtor under its commercial lease with the landlord at zero dollars; and (2) denied appellant’s untimely reconsideration motion. The Bankruptcy Court also examined whether the appellant was entitled to relief under Rule 60(b), and did not abuse its discretion in denying relief on this ground, as well, finding that the landlord had “always” been in possession of a piece of 2002 correspondence that it now claimed was “newly-discovered evidence,” and that it had purposely withheld that correspondence for at least two months prior to the time the Bankruptcy Court issued its opinion. The District Court notes that appellant’s appeal of the Bankruptcy Court opinion requiring no cure amount was untimely, and the landlord’s motion for reconsideration, itself untimely, did not stay the running of the time to appeal. [Filed Jan. 30, 2008.] PHYSICIAN/PATIENT – OBSTETRICS MALPRACTICE 29-7-9651 Smith, et al. v. CHS, Inc., et al., U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (82 pp.) The court issues the joint final pretrial order in this case seeking monetary damages for personal injury arising from negligent medical and nursing care provided to the then-19-year-old-plaintiff-mother during her pregnancy with her son, Sincere Smith, resulting in her development of hypertension, pre-eclampsia, and other complications, which were then not properly monitored, resulting in the premature delivery of Sincere with severe and debilitating injuries and global developmental delay, which will require lifetime constant care. The court discusses the facts and legal issues; proposed motions of the parties; their proposed experts and exhibits; and the challenges thereto; and discusses the jury trial and estimated length thereof. [Filed Feb. 11, 2008.]

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