07-2-8539 Mark Allen Auto Repair Inc. v. Medford Township, App. Div. (per curiam) (8 pp.) Plaintiff, Mark Allen Auto Repair Inc., appeals from an order of the Law Division dismissing its action in lieu of prerogative writs against defendant Medford Township as time-barred. Medford Ordinance 2010-5 limits the number of towing contracts to be awarded to five and also requires each applicant to submit proof that, among other things, its business is located either within the township or within five miles of the geographic center of the township, and that the storage locations for all towed vehicles meet certain standards. Plaintiff was denied a contract because it was not located within the five-mile limit and because its storage facilities did not comply with ordinance specifications. One year later, plaintiff challenged both the validity of the ordinance and defendant’s denial of its towing application, which it claimed was discriminatory. The appellate panel finds the trial court appropriately dismissed plaintiff’s complaint with prejudice as beyond the 45-day filing period of Rule 4:69-6. [Decided Dec. 26, 2012.]
07-2-8540 Lai v. Metuchen Borough, App. Div. (per curiam) (3 pp.) Plaintiff appeals from the Law Division’s orders dismissing her complaint for insufficiency of service of process, and for failure to state a claim on which relief can be granted. With respect to the adequacy of service of process, plaintiff’s arguments are without merit and the appellate panel affirms. The panel also affirms the dismissal of the complaint for deficient pleading. However, the panel modifies the orders of dismissal to be without prejudice. [Decided Dec. 26, 2012.]
15-3-8541 NEPCO Fund, L.L.C. v. Strober, Law Div. — Hunterdon Co. (Buchsbaum, J.S.C.) (14 pp.) This debt collection matter stems from a loan by SI Bank & Trust to defendant Benjamin Strober, his brother and their business, StroBro, L.L.C., for a commercial mortgage. Strober and his brother signed a promissory note with SI Bank, as well as a general security agreement. Although Strober and his brother personally guaranteed the loan, they were unable to make payments and defaulted on the loan. Sovereign Bank, the successor of the loan from SI Bank, filed a complaint for the default and to foreclose on the property. Sovereign Bank transferred its interest in the loans to plaintiff NEPCO Fund. Default was entered against Strober but default judgment has not yet been entered. Nonetheless, Strober has provided an answer and meritorious defenses to plaintiff’s complaint and motion for summary judgment. Strober meets the standard of good cause to vacate the entry of default by explaining how a miscommunication between himself and his former attorney, as well as his bankruptcy attorney, led to his failure to file a timely answer. In any event, plaintiff has consented to the vacating of default. Plaintiff’s motion for summary judgment is denied. Strober’s motion to vacate entry of default is granted. [Decided Dec. 21, 2012.]
20-2-8526 Fazio v. Apisa, App. Div. (per curiam) (23 pp.) Defendant-former wife appeals from multiple provisions of a December 2011 order and from a January 2012 order granting partial reconsideration to plaintiff, a firefighter severely injured in a fire, and a later January 2012 order denying her entire application for reconsideration. The panel affirms in part, reverses in part, and remands for further proceedings, finding that (1) the court did not abuse its discretion in denying defendant’s request for plaintiff’s medical records and instead providing her with necessary information in a less intrusive way; (2) the court did not abuse its discretion in denying defendant’s request for an accounting of the proceeds derived from fundraising efforts for defendant’s medical expenses as she was not entitled to that information; (3) the court lacked a proper evidential foundation for its findings that defendant was willfully trying to keep the children from their father and that she lacked credibility and a plenary hearing is required to allow the court to grant relief under Rule 1:10-3; (4) the counsel fee award to plaintiff is vacated because the court’s rationale neither applied Rule 5:3-5(c) nor explained whether the award was intended as a sanction; and (5) the matter should be remanded to a different judge where the judge made “crystal clear” findings that defendant lacked credibility, came before the court with unclean hands, and was acting in bad faith. [Decided Dec. 21, 2012.]
20-2-8542 A.P. v. R.M., App. Div. (per curiam) (12 pp.) In this postjudgment matrimonial matter, defendant appeals from the grant of summary judgment in favor of plaintiff, the effect of which was to deny his motion to change custody. Defendant argues there were material factual issues and a plenary hearing was warranted. The appellate panel disagrees and affirms. Defendant had retained Dr. Gary Glass, a psychiatrist, to conduct an evaluation of the custody and parenting arrangements; and requested that plaintiff meet with Dr. Glass, which she did not do. Defendant retained Dr. Glass on his own without a court order. Although it may have been helpful for plaintiff to have met with Dr. Glass, she was not legally required to do so. Dr. Glass’ initial report did not recommend a change of custody. The supplemental report does not raise genuine and substantial factual disputes regarding plaintiff’s compliance and fitness to parent mandating a plenary hearing. The appellate panel finds an evidentiary hearing would not have served any purpose and discerns no error in the judge’s decision to grant summary judgment. [Decided Dec. 26, 2012.]
20-2-8543 L.F. v. J.F., App. Div. (per curiam) (5 pp.) Defendant J.F. appeals from an order of the Family Part denying his motion to vacate a final restraining order (FRO) entered against him and in favor of his former wife, plaintiff L.F., on Aug. 8, 2000, pursuant to the Prevention of Domestic Violence Act. In analyzing defendant’s dismissal application, the motion judge conducted a plenary hearing, after which he examined each of the eleven Carfagno factors in light of the evidence adduced and rejected defendant’s motion. Deferring to the factual determinations of the motion judge, the appellate panel finds defendant has failed to show good cause to dissolve the FRO. [Decided Dec. 26, 2012.]
23-2-8527 Delpome v. Travelers Ins. Co., App. Div. (per curiam) (8 pp.) Plaintiff, who sustained cervical spine injuries in an automobile accident, instituted this action for first-party PIP benefits after his insurer declined to authorize payment for an additional surgical procedure. Plaintiff appeals from the trial court’s grant of defendant’s motion to compel arbitration, arguing that his decision to pursue his remedy in court cannot be “unmade” by defendant. The panel affirms, finding that the policy language is unambiguous and provides that all disputes may be submitted to arbitration and it is specious to suggest that because the policy does not specify who may invoke arbitration, only the policyholder has the right to elect arbitration. Moreover, the right to proceed to arbitration arises from statute. The panel also holds that the issue of collateral estoppel is not ripe for resolution. [Decided Dec. 21, 2012.]
23-2-8516 Aggour v. GEICO, App. Div. (per curiam) (5 pp.) Plaintiff, injured in a five-car collision negligently caused by Jason Olejarz, appeals from the order granting defendant’s motion for summary judgment in this declaratory judgment action seeking an order declaring the defendant is contractually obligated to provide underinsured-motorist (UIM) coverage for her claim for $58,000, the difference between her $100,000 per person UIM limit and the amount she received from the tortfeaser’s carrier in settlement of her claim. Because when multiple claimants are injured by a single tortfeasor, a claimant’s per accident UIM limit must be compared with the tortfeasor’s per accident limit, and because Olejarz’s liability coverage was equal to plaintiff’s UIM per accident limit, the panel affirms, finding that Olejarz is not an underinsured motorist and plaintiff is not entitled to a UIM claim. [Decided Dec. 20, 2012.]
23-2-8517 Rodriguez v. Ocean Risk Retention Group Inc., App. Div. (per curiam) (4 pp.) Defendant Ocean Risk Retention Group Inc. appeals from an order that declared that plaintiff, injured when the cab he was driving for Al’s Cab Inc. was struck by an uninsured vehicle, was entitled to uninsured-motorist (UM) coverage under a policy issued by defendant to the cab company. Deferring to the trial judge’s findings that the company’s president was credible in testifying that defendant permitted the addition of drivers by oral request and that he had sought defendant’s approval prior to hiring plaintiff, and finding that those findings conclusively establish that plaintiff was entitled to UM benefits under the policy, the panel affirms. [Decided Dec. 20, 2012.]
25-2-8528 Peters v. Board of Review, App. Div. (per curiam) (7 pp.) After an investigation determined that Peters had certified that he was unemployed when, in fact, he was working while he collected unemployment compensation benefits, the Division of Unemployment and Disability Insurance notified him that he was liable for a refund of benefits and fines totaling $16,570. He did not appeal that determination. Two years later, after repaying $11,000, he applied for a waiver of the overpayment and fine under N.J.A.C. 12:17-14.2. He appeals from the denial of the waiver. The panel affirms, finding Peters was properly held liable for repayment under 43:21-16(d)(1) and appropriately fined under 43:21-16(a) for failing to disclose that he was working, and that the division’s determination that he was not entitled to a waiver because he withheld a material fact in obtaining benefits is clearly supported by law. [Decided Dec. 21, 2012.]
25-2-8544 Ashe v. The State Operated School District of the City of Paterson, App. Div. (per curiam) (10 pp.) Appellant appeals from the decision of the commissioner of the Department of Education denying her motion to reinstate her petition of appeal, challenging her placement on the school district’s seniority list, which she had previously withdrawn with prejudice. The appellate panel finds appellant has failed to establish good cause for reopening of the dismissal. First, she withdrew her petition with prejudice. Moreover, appellant freely and knowingly withdrew her petition after consultation with counsel and a year-long period of discovery, wherein she had the opportunity to review the district’s employment records as well as multiple drafts before the mutually developed and agreed-on seniority list was finalized. The so-called newly discovered employment history information, by which she belatedly seeks to challenge that list, was compiled and available prior to the filing of appellant’s petition of appeal. Further, reinstatement would be materially detrimental to the district’s interests. The panel finds no error in the commissioner’s decision denying the motion to reinstate. [Decided Dec. 26, 2012.]
26-2-8519 Montague v. Joint Planning and Zoning Board of the Borough of Deal, App. Div. (per curiam) (12 pp.) The Law Division entered a final judgment reversing a determination of the Joint Planning and Zoning Board of the Borough of Deal, which denied an application by plaintiffs for variances required to construct a tennis court on their property. Tennis courts are permitted accessory uses; however, plaintiffs required a variance to locate the tennis court in their front yard. The board concluded that plaintiffs had not demonstrated that the variances were required due to a hardship. The appellate panel affirms the trial court’s finding that the board’s denial of plaintiffs’ application was arbitrary, capricious and unreasonable. Plaintiffs presented sufficient evidence to show that variance relief was warranted because of the exceptional topographic conditions, physical features and environmental constraints of their property. Strict application of the borough’s zoning ordinance would create an exceptional and undue hardship by limiting the extent to which plaintiffs could use the property. Further, there was insufficient evidence before the board to show that the hardship claimed was self-created. Moreover, the evidence showed that the benefits of deviating from the requirements of the zoning ordinance would substantially outweigh any detriment. [Decided Dec. 20, 2012.]
35-5-8545 Comcast of South Jersey Inc. v. Director, Division of Taxation, Tax Ct. (Brennan, J.T.C.) (23 pp.) In these consolidated matters, plaintiff-providers of cable television service challenge the use tax assessment of defendant with regard to converters and remotes, and the assessment of underpayment and amnesty penalties. Defendant cross-moves for summary judgment. The court consents to the parties’ request that it reserve decision regarding amnesty penalties until the Appellate Division decides United Parcel Service v. Director, Division of Taxation. It grants Comcast’s motion for summary judgment as to the exemption of the converters, finding that the converters are exempt from sales and use tax pursuant to N.J.S.A. 54:32B-8.13(e) because they are used to transmit television information and their nontransmission functions, including as a signal security device, are secondary and incidental to the transmission function. It grants partial summary judgment to the director as to the assessment of sales and use tax for the remotes and to any associated late fee penalties, holding that the remotes do not meet the statutory exemption under 54:32B-8.13(e) and that the director acted reasonably in refusing to abate or waive late payment penalties with respect to the taxes due on the remotes. Comcast’s request for fees against the director is denied. [Filed Dec. 18, 2012.]
35-5-8546 Rt. 17 Parkway Assoc., c/o Muscrarelle v. Borough of Paramus, Tax Ct. (Nugent, J.T.C.) (14 pp.) Paramus filed a motion to dismiss the complaint of the plaintiff taxpayer for failure to respond to the tax assessor’s request for financial information, commonly known as a “Chapter 91 request.” The Chapter 91 request was sent by the assessor to the taxpayer at the address on file in the assessor’s office, via certified mail and regular mail. The certified mail was returned as unclaimed. The request mailed via regular mail was never returned to the assessor’s office as undelivered. The court finds that the assessor reasonably relied on the fact that the address was valid since the taxpayer did not advise otherwise. Plaintiff certified that the address is no longer in use by the taxpayer for business purposes but only in opposition to this motion. Further, plaintiff does not deny that the regular mail was not returned as undelivered, and certified only to the fact that the certified mail was not received. The court finds the taxpayer received adequate notice of the assessor’s request. Defendant’s motion is granted. [Decided Dec. 18, 2012.]
35-5-8547 UTSI Finance Inc. v. Town of Kearny, Tax Ct. (Nugent, J.T.C.) (9 pp.) Defendant filed a motion to dismiss plaintiff’s 2012 property tax appeal for failure to respond to the tax assessor’s request for financial information (Chapter 91 request). In the request for financial information, the assessor asked that the taxpayer provide the income and expense information for 2011. The taxpayer could respond either by providing the 2011 information as of the date of the response, or be estimating the yearly financial information. The assessor did not otherwise identify a specific 12-month reporting period or range of dates. Plaintiff claims that the request is unclear and ambiguous and therefore no response was required. The court finds that the request is framed in language that provided plaintiff with fair notice of the information sought. Because plaintiff failed to respond to the valid Chapter 91 request, defendant’s motion is granted. [Decided Dec. 18, 2012.]
36-2-8529 Aiges v. Fuccillo, App. Div. (per curiam) (9 pp.) In this dog-bite case brought by a dog-sitter against the dog’s owners, the dog-sitter appeals from the trial court’s ruling that her lawsuit cannot go forward in the absence of proof that the owners knew or should have known that their dog was vicious. Finding that the trial court erred in applying the independent-contractor exception recognized in Reynolds v. Lancaster County Prison to New Jersey’s dog-bite statute, N.J.S.A. 4:19-16, which imposes absolute liability on the owners, because the circumstances here are factually distinguishable from the commercial setting in Reynolds, the court concludes that the statutory rule of absolute liability applies to plaintiff’s injuries. It reverses and remands for trial. [Decided Dec. 21, 2012.]
42-7-8530 In re Citta, Debtors, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.) The debtors appeal from the decision of the bankruptcy court granting appellee Sun National Bank’s motion to dismiss the debtors’ converted Chapter 7 bankruptcy case. The issue is whether the bankruptcy court erred in dismissing the debtors’ bankruptcy case pursuant to 11 U.S.C.S. § 707(b), which allows the dismissal of a petition on a finding that granting relief would be an abuse of Chapter 7 of the bankruptcy code. Contrary to the debtors’ position, there is ample support for the bankruptcy court’s inquiry into the reasonableness of the debtors’ budget in determining and finding that the debtors’ housing and car expenses were unreasonable. The debtors demonstrated a lack of candor to the bankruptcy court regarding the necessity of repaying their pension loans and of the nature of their financial situation. The court concludes the bankruptcy court did not abuse its discretion in dismissing the debtors’ case and affirms the bankruptcy court’s decision. [Filed Dec. 19, 2012.]
42-7-8548 In re Centrix Financial, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (14 pp.) Nonparties Everest National Insurance Company and Everest Reinsurance Company filed a motion to quash subpoenas served on them. Defendants (AIG) oppose Everest’s motion. This matter dates back to the filing of bankruptcy by Centrix Financial. This case arises from an adversary proceeding filed by the Centrix trust against AIG, seeking insurance coverage under a financial institution bond. The trust alleges that officers at Centrix fraudulently diverted funds and the bond should cover the losses. AIG seeks to ascertain when Everest first became aware of the “bad acts” of Centrix personnel that ultimately comprised its adversary proceeding. The court concludes that AIG’s subpoenas are a fishing expedition that compels Everest to identify and produce information that is largely already available to AIG. Several of the requests are irrelevant and inadmissible and others fall under the attorney-client privilege. Assuming arguendo that testimony or documents that are relevant, nonprivileged, nonduplicative and admissible exist in Everest’s possession, it would be unduly burdensome for Everest to attempt to locate them. Everest’s motion to quash the subpoenas is granted. [Filed Dec. 18, 2012.]
46-7-8531 Ash v. Township of Willingboro, U.S. Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) In this 43 U.S.C. § 1983 action arising out of plaintiff’s arrest and the subsequent search of his vehicle, defendants, the township, its director of public safety, and several police officers, move for summary judgment. The court grants their motion, holding that (1) plaintiff’s claims that his arrest and the search and seizure of his gun violated his constitutional rights is barred by Heck v. Humphreys here, where the criminal charges against him were resolved through PTI; (2) plaintiff’s Monell supervisory liability claims require an underlying constitutional violation and because the underlying violations are barred by Heck and have been dismissed, they cannot form the basis for a derivative Monell claim; and (3) the remaining state law claims are dismissed without prejudice. [Filed Dec. 18, 2012.]
46-7-8532 David v. Miller, U.S. Dist. Ct. (Kugler, U.S.D.J.) (9 pp.) Plaintiff brings suit against more than 20 defendants alleging that these persons deprived him of his civil rights under color of law in violation of criminal statute 18 U.S.C. § 242 (2006). Before the court are motions to dismiss filed by 10 defendants and one motion for summary judgment filed by defendant Michael Legatie. Plaintiff was arrested by police officer- defendants Gibison, Wariwanchik, and Efelis. He was incarcerated at the Salem County Correctional Facility in Woodstown from March 23 until May 26, 2011. Thereafter, on Jan. 25, 2012, plaintiff was driving on a New Jersey highway when he was stopped by state patrolman Legatie. Defendant Legatie arrested plaintiff pursuant to a bench warrant that had been issued by defendant Farrell, a N.J. Superior Court judge. Thus, plaintiff was held pursuant to a facially valid bench warrant. The motions to dismiss are granted based on immunity grounds. Similarly, defendant Legatie’s motion for summary judgment is granted. The court grants all of the pending motions to dismiss and Legatie’s motion for summary judgment. [Filed Dec. 17, 2012.]
46-7-8533 McGann v. Collingswood Police Department, U.S. Dist. Ct. (Hillman, U.S.D.J.) (28 pp.) Plaintiff is a former police officer of the Collingswood Police Department who served for eight years before he was arrested. Plaintiff alleges violations of his Fourth Amendment rights and brings his claims pursuant to 42 U.S.C. § 1983. Defendant Collingswood filed a motion for summary judgment on plaintiff’s claims against it for false arrest and malicious prosecution. Plaintiff’s false-arrest claim fails because plaintiff cannot demonstrate that his alleged arrest was made without probable cause. Further, the essence of plaintiff’s claims is that the borough lacked probable cause to arrest plaintiff for harassment with respect to his communications with members of the department. Assuming plaintiff proved these allegations at trial, it would necessarily imply that plaintiff’s conviction and guilty plea to the later-amended charge under a borough ordinance was invalid. Under these circumstances, plaintiff’s § 1983 claims for false arrest and false imprisonment clearly run afoul of State v. Heck and summary judgment must be entered in favor of the borough. [Filed Dec. 17, 2012.]
11-8-8549 JOC Inc. t/a Summit Exxon v. ExxonMobil Oil Corp., Third Cir. (Sloviter, U.S.C.J.) (5 pp.) ExxonMobil and Sung Eel Change Auto Inc., t/a Ashwood Exxon cross-appeal from a district court preliminary injunction that barred Exxon from terminating the Ashwood franchise for certain reasons. Because the franchise no longer exists, and there is no live controversy before it, the court dismisses the appeal as moot. [Filed Dec. 19, 2012.]
11-7-8550 Wingate Inns International Inc. v. Cypress Centre Hotels, U.S. Dist. Ct. (Salas, U.S.D.J.) (18 pp.) Plaintiff Wingate Inns International Inc. initiated this action against defendants Cypress Centre Hotels, William Bost, the estate of James Hamilton and Rajendra Patel to, inter alia, collect sums allegedly due under a franchise agreement, a guaranty agreement, and a promissory note. Bost, acting pro se, filed an answer and counterclaim. Bost’s counterclaim is the subject of Wingate’s motion for judgment on the pleadings. The court finds that Bost has standing to assert its counterclaim for breach of contract, but that Bost’s counterclaim — as currently pleaded — is insufficient under Federal Rule of Civil Procedure 8(a) and therefore must be dismissed. Accordingly, the court denies Wingate’s motion to the extent it seeks dismissal for lack of standing, but grants Wingate’s motion insofar as it seeks dismissal for failure to state a claim. [Filed Dec. 19, 2012.]
15-7-8551 McCabe v. Eichenbaum & Stylianou, U.S. Dist. Ct. (Shipp, U.S.M.J.) (7 pp.) In this action alleging that defendants’ Aug. 16, 2011, letter to plaintiff failed to comply with the Fair Debt Collection Practices Act because it advised that if he disputed the debt, he “may” notify defendants and they would obtain verification. The court denies defendants’ motion for judgment on the pleadings, finding that plaintiff has met the burden to survive the motion since “may” could convey to the least sophisticated debtor that certain disputes do not need to be made in writing and, therefore, the letter could be considered deceptive and misleading, in violation of the FDCPA, and defendants were not entitled to charge prejudgment interest and plaintiff was possibly charged an undocumented fee in violation of the FDCPA. [Filed Dec. 19, 2012.]
14-2-8525 Edwards v. Correctional Medical Services, U.S. Dist. Ct. (Shipp, U.S.D.J.) (6 pp) The CMS defendants filed a motion to dismiss pro se plaintiff’s complaint for failure to produce an expert medical report. Plaintiff alleges, pursuant to § 1983 and the New Jersey Civil Rights Act, that the CMS defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and the New Jersey Constitution. Plaintiff also alleges state law tort claims. Plaintiff alleges that defendants ignored his reports of severe pain and requests for treatment for a decade before providing him with a specialist for treatment. He also alleges that defendants’ policies required denying access to a specialist until an arbitrary quota of prisoners requested the same treatment. Plaintiff’s allegations are not manifested in specific medical conduct, but focus on the alleged delay in providing access to treatment by a specialist. This type of culpability shifts the proof required outside the realm of the technical expertise and is of the kind that is readily apparent to anyone of average intelligence and ordinary experience. The court finds expert testimony is not required for plaintiff to proceed against the CMS defendants and denies the motion to dismiss. [Filed Dec. 17, 2012.]
23-7-8552 Chartis Property Casualty Company v. Inganamort, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (10 pp.) Defendants move to dismiss or transfer this matter to the Southern District of Florida. This case involves a coverage dispute under a marine insurance policy and arises from an alleged partial sinking of defendants’ yacht while docked in Florida. Plaintiff Chartis Property Casualty Company is a Pennsylvania corporation with its principal place of business in New York, and offices in the United States and abroad. Defendants were personally served at their Gladstone, N.J. home. Chartis alleges that defendants maintain one residence and one business in New Jersey, and that their records regarding the yacht are stored in New Jersey. Defendants have another residence in Florida. The claim is being handled from Chartis’ New Jersey office. The court rejects defendants’ argument that the bad-faith exception to the first-to-file rule applies. The alleged fact that Chartis knew plaintiffs intended to file suit in Florida does not demonstrate bad faith. Because venue is proper in New Jersey, defendants can only seek discretionary transfer, which is inappropriate because plaintiff’s chosen forum is entitled to deference and defendants have failed to demonstrate that the private- and public-interest factors support their motion. Defendants’ motion is denied. [Filed Dec. 19, 2012.]
53-7-8521 Master Cutlery Inc. v. Panther Trading Co. Inc., U.S. Dist. Ct. (Hammer, U.S.M.J.) (12 pp.) In this action asserting causes of action for, inter alia, patent and trademark infringement and unfair competition arising out of defendant’s alleged manufacture and sale of a product identical to one of plaintiff’s products for which it holds a design patent and its infringement of several copyrights and trademarks plaintiff holds for cutlery products, defendant moves to transfer venue to the District of Maryland. Applying the Jumara factors, the court concludes that defendant has not met its burden of showing that the private-interest factors favor transfer or that it would be more convenient for all parties and witnesses to have the case transferred. It, therefore, denies defendant’s motion. [Filed Dec. 17, 2012.]
53-7-8534 Levey v. Brownstone Investment Group, L.L.C., U.S. Dist. Ct. (Waldor, U.S.M.J.) (6 pp.) Plaintiff’s second amended complaint alleged copyright infringement relating to defendants’ use of software in which plaintiff alleges an authorship and copyright interest. Defendants move for sanctions against plaintiff’s counsel in connection with the second amended complaint premised on plaintiff’s alleged failure to own a registered copyright in Brownstone Live before filing the action and to file the action within the applicable statute of limitations. The court denies the motion, finding that plaintiff has shown a registration in LevTek and registration of an underlying copyrighted work is sufficient to sustain a copyright infringement action pertaining to a derivative work, here Brownstone Live and, therefore, plaintiff’s claim is not patently unmeritorious or frivolous. Further, the dismissal of the second amended complaint renders the motion moot. Moreover, sanctions are not warranted in light of the basis on which the magistrate judge gave plaintiff an additional opportunity to sufficiently plead a cause of action — an alleged continuing violation. [Filed Dec. 18, 2012.]
53-7-8522 Sunovian Pharmaceuticals Inc. v. Teva Pharmaceuticals USA Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) Defendants (collectively DRL) filed a motion for summary judgment in this matter, claiming the then-existing Amended New Drug Application (ANDA) did not infringe on plaintiff Sunovian Pharmaceuticals Inc.’s patent. The court denied DRL’s motion for summary judgment of noninfringement without prejudice and permitted DRL to file a renewed motion provided it was accompanied by a certification assuring the court that DRL would not market a product containing less than 0.3 percent of the levorotatory isomer of eszopiclone (May 25th oder). DRL has submitted a certification stating it will not market an eszopiclone tablet with a levorotatory isomer content below 0.3 percent (the certification). Plaintiff now moves for this court to reconsider certain portions of the May 25th order that could be read to suggest that the certification by DRL providing it will not market generic eszopiclone tablets containing less than 0.3 percent levorotatory isomer would be sufficient to avoid infringement. Plaintiff’s motion for reconsideration is denied. [Filed Dec. 14, 2012.]
25-7-8523 DeJesus v. RBS/ABN Amro Inc., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (5 pp.) Plaintiff brings this suit pro se against his former employer (RBS). Plaintiff alleges that he was injured in a car accident in June 2009, but that he continued to work until July 2009, contrary to his doctor’s instructions. Plaintiff further contends that an unnamed insurance company denied his disability insurance claim because he continued to work after the injury. Plaintiff contends — and RBS does not dispute — that his employment at RBS was terminated as a result of his refusal to relocate. Plaintiff alleges that he was then offered a severance agreement, which he rejected because “it contained a clause which prevented [him] from receiving [his] workers[’] compensation benefits.” Plaintiff filed this claim seeking his severance pay, workers’ compensation and reimbursement for the money he had to borrow from his 401(k) plan, as well as reimbursement for the tax consequences of the 401(k) borrowing. Here, the court grants defendant’s motion to dismiss the complaint on the grounds that it fails to provide defendant adequate notice of his claims or the grounds on which those claims rest. Plaintiff’s complaint does not allow RBS — or the court — to identify what statute or right was violated by RBS. [Filed Dec. 17, 2012.]
25-7-8553 Verdecchio v. Tri-County Real Estate Maintenance Co. Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Plaintiff filed this action on behalf of himself and others similarly situated, alleging that defendants failed to compensate him for the hours he worked in excess of his regular 7 a.m. to 3:30 p.m. shift in violation of the Fair Labor Standards Act. Defendants filed a Rule 12(b)(6) motion to dismiss. The court denies the motion, finding that plaintiff’s allegations that he worked as a repairman in defendants’ employ, that defendants had control over his conditions of employment, and that both he and defendants were engaged in interstate commerce, while cursory, are sufficient to satisfy the first two elements of a prima facie claim under § 207 of the FLSA, and that his allegation of a weekly estimate of unpaid overtime hours, rather than a total number covering his years of employment with defendants, is sufficient to satisfy the third element of a prima facie claim. [Filed Dec. 19, 2012.]
04-7-8524 Connor v. Sedgwick Claims Management Services Inc., U.S. Dist. Ct. (Hillman, U.S.D.J.) (18 pp.) Plaintiff moves for reconsideration of the court’s prior opinion and order awarding plaintiff attorney fees but reducing the overall amount of the award to $29,947.62. Finding that the proper forum was the district’s Camden vicinage and that all parts of the underlying complaint and litigation took place in southern New Jersey, the court reaffirms its initial conclusion that plaintiff’s counsel should be held to the reasonable hourly rate of an attorney in southern New Jersey ($250) not the higher rate applicable to an attorney in northern New Jersey where his office is located. However, the court also reconsiders its prior findings regarding the time counsel spent on tasks that could have been delegated to a paralegal or legal assistant, calculates the lodestar and awards plaintiff $35,891 in attorney fees. [Filed Dec. 18, 2012.]
32-7-8535 Tigert v. Ranbaxy Pharmaceuticals Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (10 pp.) Defendant moves for judgment on the pleadings in this failure-to-warn action seeking damages on either a strict products liability or negligence theory of liability after plaintiff suffered serious liver damage after taking the drug Solodyn, arguing its presumptive nonliability under Texas law, which undisputedly applies here. The court finds that the presumption against pre-emption obtains in this case and denies defendant’s motion. [Filed Dec. 18, 2012.]
32-7-8536 Walters v. Carson, U.S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Before the court is plaintiff’s amended complaint against defendant McNeil-PPC Inc. asserting claims of negligence, breach of implied and express warranties, and strict liability arising out of plaintiff’s use of Tylenol Arthritis, an over-the-counter medication manufactured and distributed by defendant. The court grants defendant’s motion to dismiss, finding plaintiff’s claims of negligence, implied warranty and strict liability are subsumed by the New Jersey Products Liability Act (the PLA) and plaintiff’s failure to assert his claims under the PLA is a fatal pleading deficiency. Although the PLA does not extend to claims for breach of an express warranty, plaintiff’s complaint does not contain sufficient factual allegations to support such a claim. Defendant’s motion to dismiss is granted. [Filed Dec. 17, 2012.]
50-7-8537 Grodko v. Central European Distribution Corp., U.S. Dist. Ct. (Simandle, U.S.D.J.) (29 pp.) This consolidated action involves two federal securities class actions brought by Central European Distribution Corporation (CEDC) shareholders under §§ 10(b) and 20(a) of the Securities Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5.Three parties have filed motions to be appointed as lead counsel. The court denies the Prosperity Subsidiaries Group’s lead plaintiff application because it is subject to unique defenses regarding loss causation. The court appoints Puerto Rico as lead plaintiff because, after the Subsidiaries, it has allegedly suffered the greatest financial losses and is not subject to unique defenses. Harry Nelis’ lead plaintiff motion is denied because Puerto Rico suffered substantially greater losses. Puerto Rico’s selection of Robbins Geller Rudman & Dowd as lead counsel and Cohn, Lifland, Pearlman, Herrmann & Knopf as local counsel is approved. [Filed Dec. 17, 2012.]
36-7-8538 Clayton v. United States, U.S. Dist. Ct. (Simandle, U.S.D.J.) (44 pp.) Plaintiff, the wife of the deceased and administrator of his estate, seeks compensation after he died as a result of touching an energized power wire while working on a utility pole replacement project at Fort Hamilton U.S. Army base in Brooklyn. Defendants United States and Meridian Management Corporation move for summary judgment. After finding that New York and New Jersey law both yield the same outcome on the motions, the court grants in part and denies in part the U.S.’s motion. It is granted with respect to all of plaintiff’s claims in her individual capacity because she did not file an administrative notice under the Federal Tort Claims Act. It is granted on grounds of lack of administrative notice as to specific subparts in count I, which alleges negligence. It is denied in all other respects because there are disputed issues of material fact regarding the extent of the Army’s supervision of the deceased. Meridian’s motion is granted because plaintiff has not shown that a genuine issue of material fact exists regarding whether Meridian owed plaintiff a duty of care. [Filed Dec. 18, 2012.]