STATE COURT CASES
ADMINISTRATIVE LAW
01-2-8816 In re New Jersey Highlands Water Protection and Planning Council Approval of the Petition for Plan Conformance for the Town of Clinton, Hunterdon County, App. Div. (per curiam) (30 pp.) The Fair Share Housing Center filed two separate appeals, each challenging a resolution of the Highlands Water Protection and Planning Council conditionally approving a municipality’s master plan and land-use regulations as conforming with the council’s regional master plan for the Highlands. The center asserts the council was required, but failed, to adopt “the substantive and procedural requirements that form the plan conformance process” in accordance with the rule-making procedures of the Administrative Procedure Act (APA). The center urges the court to invalidate the resolutions, and compel the council to comply with the APA. The issues concern the council’s implementation and administration of the Highlands Water Protection and Planning Act and consolidation is appropriate. The appellate panel finds the center has not overcome the presumption of validity afforded agency action, that is, the center has failed to overcome the validity of the council’s choice to provide instructions on plan conformance informally. The providing of instruction on the essential requirements of plan conformance can be viewed as actions related to the council’s obligations to investigate, publicize, plan and supervise to achieve the complex goals of the Highlands Act. [Decided Jan. 25, 2013.]
 
01-2-8844 In the Matter of Chaparro, App. Div. (per curiam) (6 pp.) Petitioner, found guilty of insubordination for failing to timely comply with an order to undergo tuberculosis testing, appeals from a final agency decision of the Civil Service Commission imposing a 10 working-day suspension on her employment as a senior corrections officer. Concluding that the final CSC decision is not arbitrary, capricious or unreasonable in light of the importance of maintaining order and discipline in a corrections facility, the panel affirms. [Decided Jan. 29, 2013.]
 
01-2-8858 Bureau of Housing Inspection v. High Park Gardens Cooperative Corporation, App. Div. (per curiam) (16 pp.) High Park Gardens Cooperative Corporation appeals from a final decision of the acting commissioner of the Department of Community Affairs, finding that High Park’s buildings are subject to the emergency lighting requirements of N.J.A.C. 5:70-4.11(j) and that no exceptions apply. The appellate panel affirms the decision. The exception for buildings with an occupant load under 50 persons does not apply to buildings over two stories high. Hence, it could not apply to High Park’s three-story buildings. Nor is High Park grandfathered under the regulation that applies to buildings that were built after the 1977 adoption of the UCC Act and that conformed to the UCC. Highland Park’s housing complex was built more than a decade earlier. Finally, High Park is not entitled to a hardship exception to the egress lighting requirement. As High Park concedes, financial hardship alone is insufficient to justify an exception to a safety regulation under the UCC. In any event, High Park failed to prove that the cost of installing the lighting would be insurmountable. The panel declines to second-guess the department’s decision to enforce its fire-safety regulations. [Decided Jan. 30, 2013.]
 
ADMINISTRATIVE LAW — APPEALS
01-2-8859 J.S. v. New Jersey Dep’t of Children and Families, App. Div. (per curiam) (6 pp.) J.S. appeals from respondent’s final agency decision denying as untimely his application to appeal a decision substantiating abuse of two minor children at the Vineland Residential Treatment Center where he was formerly employed. Finding that the Division of Youth and Family Services, Conflict Investigations Unit within the Office of the Public Defender, sent notice of its findings in response to the allegations of abuse and of his right to appeal to J.S. at his address in Bridgeton and, because he had recently moved, to his new address in Hopewell, that neither correspondence was returned to PDCIU as undeliverable, that J.S. did not seek to appeal within the defined time frame, and that notice by ordinary mail was satisfactory, the panel affirms the decision that the application to appeal, filed one year later, was untimely. [Decided Jan. 30, 2013.]
 
ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION
01-2-8817 In the Matter of Gliottone, App. Div. (per curiam) (22 pp.) Appellant appeals from a final decision of the Civil Service Commission upholding his removal as a Mercer County corrections officer and denying his motion to enforce a purported settlement agreement. Finding that the attorney for the county had neither actual nor apparent authority to settle the matter before a settlement agreement was drafted and reviewed by the county authorities, and that appellant’s claim that he relied to his detriment on the attorney’s representation in her emails and that his reliance was reasonable is without merit, and that even if the attorney had authority to negotiate a settlement, her proposal lacked essential terms that rendered it nonbinding and unenforceable, the panel holds that the commission’s conclusion that there was no enforceable agreement was supported by credible evidence and should not be disturbed. The panel also finds that the commission’s decision to remove appellant was supported by sufficient credible evidence and was not arbitrary or capricious. [Decided Jan. 25, 2013.]
 
BUSINESS ENTITIES
12-2-8818 Mizrack v. Fairmount Chemical Co. Inc., App. Div. (per curiam) (44 pp.) This appeal arises from a derivative action by plaintiffs, two shareholders and Fairmount’s bankruptcy trustee, against William Kaltnecker, one of Fairmount’s officers, and other defendants for damages, an order directing them to comply with document requests, for breach of fiduciary duty and misappropriation of corporate opportunities. The trial court found that defendants Branson and Halle had breached their fiduciary duties and awarded damages. The allegations against Kaltnecker, DaMota and the DaMota Family Partnership were dismissed, and counsel fees were denied as to all parties except for $100,000 in favor of Kaltnecker against Fairmount only. Kaltnecker appeals the limitation on his fee award. Plaintiffs cross-appeal, arguing that the judge erred by failing to find Kaltnecker and DaMota liable, awarding Halle a setoff for damages and failing to find him also liable for additional sales of Fairmount’s products, limiting damages against Branson, and dismissing their expert’s opinion on valuation. The panel affirms, substantially for the reasons set forth below, including that there was ample evidence to support the finding that Kaltnecker was blameless for Fairmount’s demise and how it wound up its affairs; Kaltnecker was entitled to counsel fees pursuant to N.J.S.A. 14A:3-5(2)(a); and that the decision to grant Halle a setoff for unpaid wages and unreimbursed wages was firmly grounded in the record. [Decided Jan. 25, 2013.]
 
CIVIL PROCEDURE
07-2-8819 Fitzgerald v. Gann Law Books Inc., App. Div. (per curiam) (10 pp.) Plaintiff filed this class-action suit in the Law Division against defendants Gann Law Books Inc., Gann Legal Education Foundation Inc., and Michael Protzel, alleging that defendants violated the federal Telephone Consumer Protection Act (TCPA). Shortly thereafter, the Appellate Division decided Local Baking Products Inc. v. Kosher Bagel Munch Inc., which held that class-action suits were inappropriate for adjudicating TCPA claims in the courts of this state. The next day, defendants moved to dismiss plaintiff’s class-action claims with prejudice and to transfer the remaining claims to the Small Claims Section of the Special Civil Part. The following day, plaintiff filed a notice of voluntary dismissal without prejudice under Rule 4:37-1(a), and defendants filed an answer. Five days later, plaintiff filed a similar complaint in district court. The Law Division ruled that plaintiff’s notice of voluntary dismissal was untimely under Rule 4:37-1(a) but construed Rule 4:37-1(b) as giving it discretionary authority to dismiss plaintiff’s complaint. Defendants appeal, arguing that the trial court erred in exercising the authority conferred in Rule 4:37-1(b) because the court failed to consider plaintiff’s alleged improper motive of forum shopping. The appellate panel affirms for reasons other than those expressed by the trial court, finding plaintiff’s notice of voluntary dismissal under Rule 4:37-1(a) was timely filed. [Decided Jan. 25, 2013.]
 
CONTRACTS — ALTERNATIVE DISPUTE RESOLUTION
11-2-8820 Tri-Tech Environmental Engineering Inc. v. Nutley Bd. of Educa., App. Div. (per curiam) (25 pp.) This dispute arises out of an agreement under which plaintiff provided construction management services for the remodeling and renovation of the board’s seven school facilities, defendant’s termination of plaintiff’s services, and defendant’s repudiation of a settlement between the parties. Plaintiff appeals from the trial court’s order referring some of the counts in plaintiff’s second amended complaint to arbitration, arguing that the court should have referred all 14 counts to arbitration pursuant to the parties’ original agreement that contained a mandatory arbitration clause and that the entire-controversy doctrine does not allow a portion of its claims to be litigated and the other portion to be arbitrated. The panel affirms, finding that the court properly retained jurisdiction over counts in the second amended complaint that grew out of the settlement and a rider, which specifically preserved for litigation in court plaintiff’s claims for nonpayment and any other claims that arose relating to the settlement and rider. Given the explicit terms of those instruments, the trial court correctly declined to refer such specified claims to arbitration without the mutual consent of the parties. Also, the court properly maintained jurisdiction over those claims against co-defendants who were not parties to an arbitration agreement. Given the distinctive, bargained-for arrangements, the jurisdictional division of plaintiff’s claims into two tribunals, although inefficient, does not violate the entire-controversy doctrine. [Decided Jan. 25, 2013.]
 
CRIMINAL LAW
14-2-8824 State v. Abdelrehim, App. Div. (per curiam) (17 pp.) Defendant, an Egyptian native, entered a guilty plea for one drug offense and multiple theft-related offenses while he was a lawful resident of the United States and was sentenced to probation. He subsequently violated probation and was sentenced to three years of custody. His first PCR petition alleging ineffective assistance of counsel and deprivation of his rights under the Geneva Convention was denied and defendant was deported. His appeal was dismissed as moot in light of the deportation. His second PCR petition, filed five years later, was dismissed on the papers. Concluding that the time-bar of Rule 3:22-12 should be relaxed in this case, the panel remands to the trial court for an evidentiary hearing on whether his plea counsel affirmatively misled him about whether his guilty plea could subject him to deportation consequences. [Decided Jan. 25, 2013.]
 
14-2-8825 State v. Dixon, App. Div. (per curiam) (38 pp.) After a bench trial, defendant was found guilty of second-degree robbery, second-degree burglary, third-degree aggravated assault, false imprisonment, fourth-degree resisting arrest by flight, and fourth-degree unlawful possession of a weapon. The court sentenced defendant to an aggregate term of 25 years of incarceration. The appellate panel affirms the denial of defendant’s suppression motion and his conviction. However, the panel finds the five-year consecutive sentence imposed for the aggravated assault is invalid because the assault conviction must merge into the robbery offense. The other consecutive sentence was imposed on what the judge erroneously treated at sentencing as a “criminal restraint” offense but what, in actuality, was false imprisonment. The false-imprisonment conviction is sufficiently distinct from the burglary and robbery convictions. The sentence for false imprisonment may lawfully run consecutively to the sentences imposed for robbery and burglary. The convictions are affirmed as modified. The matter is remanded for resentencing. [Decided Jan. 25, 2013.]
 
14-2-8837 State v. Burgos, App. Div. (per curiam) (26 pp.) Defendant was convicted by a jury of first-degree conspiracy to commit murder, first-degree attempted murder of Roberto Rodriguez, second-degree conspiracy to commit aggravated assault, second-degree aggravated assault of Nicholas Dennis, second-degree attempted aggravated assault of Rodriguez, and third-degree possession of a weapon for an unlawful purpose. The court sentenced defendant to an aggregate term of 25 years of imprisonment. The appellate panel affirms defendant’s convictions but remands for resentencing. Although in its brief the state argued the imposition of consecutive sentences on the conspiracy to commit aggravated assault and the aggravated assault charges was appropriate, at oral argument counsel conceded the counts should have been merged because they involve a conspiracy and substantive charge involving the same victim. Counsel urges, however, that the matter should be remanded for restructuring of the sentence, not just merger and resentencing on the single count, and the 25-year aggregate sentence is appropriate. The panel does not limit the resentencing remand to the merger of the two counts, but permits the review of defendant’s sentence in accordance with State v. Rodriguez. [Decided Jan. 28, 2013.]
 
14-2-8850 State v. D.L.C., App. Div. (per curiam) (13 pp.) Defendant appeals from the trial court’s order denying his petition to expunge records of his January 1994 conviction for third-degree burglary and third-degree theft. Interpreting N.J.S.A. 2C:52-4.1(a), the court held expungement was not permitted because defendant was previously adjudicated delinquent for acts that would have been classified as crimes if committed by an adult. As the court’s statutory interpretation mirrors one recently rejected by the Appellate Division in In re Expungement Petition of J.B., the appellate panel reverses and remands for entry of an order of expungement. The panel rejects the state’s renewed argument that defendant is statutorily barred from seeking expungement regarding his adult conviction because of his prior juvenile adjudications and further rejects the state’s contention that J.B. was wrongly decided. [Decided Jan. 29, 2013.]
 
14-2-8864 In the Matter of the Commitment of F.S., App. Div. (per curiam) (16 pp.) F.S., committed to the custody of the Department of Human Services after being found not guilty by reason of insanity of terroristic threats, unlawful possession of a weapon for an unlawful purpose, and unlawful possession of a weapon, appeals from her continued commitment after her third Krol hearing. The panel finds that, based on the totality of the record, the judge’s conclusion that F.S. is mentally ill was within the broad discretion given his ability to evaluate the testimony and the evidence and it finds no basis to reverse. The panel affirms the portion of the order that required F.S.’s continued involuntary commitment, finding that the evidence supported a finding that absent the significant, hospital-administered medication regimen, F.S. would likely present a danger to herself and others in the foreseeable future. The panel reverses that portion of the order denying discharge planning in light of the recommendations of her treating psychiatrist and the Special Status Persons Review Committee that F.S. was ready for such planning, and directs that on remand, the judge should consider the propriety of conditional discharge with appropriate conditions. [Decided Jan. 30, 2013.]
 
14-2-8866 State v. Samuels, App. Div. (per curiam) (16 pp.) Finding that, although the trial court’s denial of defendant’s motion was based on its well-intentioned concern that defendant lacked the educational background, legal knowledge and ability to effectively serve as his own counsel, the trial court made no findings of fact supporting a determination that defendant, having been informed by the court of the charges, maximum sentence, risks and inherent difficulties and consequences of self-representation, lacked the capacity to elect self-representation. Because the record does not support the denial of defendant’s right to represent himself based on the invalidity of his waiver, King requires reversal of his convictions for robbery and resisting arrest. The matter is remanded to the trial court for further proceedings. [Decided Jan. 30, 2013.]
 
CRIMINAL LAW — EXPUNGEMENT
14-2-8838 In the Matter of the Application of J.C. for Expungement, App. Div. (per curiam) (7 pp.) Appellant, charged in June 1993 with possession of CDS and possession or distribution of a hypodermic syringe, both disorderly persons offenses that were consolidated for purposes of the entry of a plea and sentencing in November 1994, arrested and charged with possession of CDS in August 1993, arrested for theft by unlawful taking in March 2008, and arrested for hindering apprehension in January 2009, filed a petition for expungement that was granted for the August 1993, March 2008 and January 2009 arrests. He appeals from the denial of expungement for the June 1993 arrest that was based on his failure to comply with N.J.S.A. 2C:52-7f, which requires the court’s disposition of the matter and the punishment imposed. The panel reverses and grants expungement of the June 1993 arrest where appellant has exhausted every available avenue to verify the actual disposition of that arrest but was unable to obtain the record of the disposition of that arrest, it appears that that arrest was disposed of in November 1994, and that assuming that appellant was convicted of those offenses, the arrest was eligible for expungement under 2C:52-3. The court declines to consider appellant’s request for an order holding that orders, judgments and opinions addressing expungement shall identify the petitioner by initials and not by the full name. [Decided Jan. 28, 2013.]
 
FAMILY LAW
20-2-8821 Burgos v. Burgos, App. Div. (per curiam) (6 pp.) Plaintiff appeals from the grant of defendant’s motion to reduce alimony and child support without discovery or a hearing. Because the trial judge did not explain his reasons for concluding that defendant had produced sufficient evidence of a material changed circumstance, and, assuming such showing was made, erred in not affording plaintiff compulsory discovery, the panel reverses and remands for reconsideration. [Decided Jan. 25, 2013.]
 
20-2-8822 Mayer v. Mayer, App. Div. (per curiam) (15 pp.) In this postjudgment matter, defendant appeals from two orders. She contends that the judge erred in awarding her ex-husband, plaintiff, judgment of $35,558.88, reflecting overpayments made for child support, without a plenary hearing. She also asserts the judge erred in denying her request for modification of the parenting-time schedule, and in denying her request for counsel fees. Plaintiff cross-appeals, contending the judge erred in setting the amount of weekly credit to reduce the overpayment to be deducted from his child-support payments going forward, and in denying his request for counsel fees. The support payments were made via a wage garnishment administered by the Monmouth County Probation Division, which applied the pendent lite support amount in error. Defense counsel raised laches and equitable estoppel as defenses to plaintiff’s request for reimbursement. The judge apparently decided that, since there was no dispute that plaintiff overpaid his child support for more than seven years, reimbursement was required. The judge did not address plaintiff’s equitable claims. The appellate panel reverses and remands for a plenary hearing on the child-support issue. The panel affirms the denial of defendant’s request for modification of the parenting-time schedule. Counsel fees will be addressed on remand. [Decided Jan. 25, 2013.]
 
20-2-8833 E.M.Y. v. D.Y., App. Div. (per curiam) (5 pp.) Plaintiff E.M.Y. appeals from the decision dismissing the temporary restraining order (TRO) she obtained pursuant to the Prevention of Domestic Violence Act. The parties were married in 1985 and have two children. In March 2010, defendant D.Y. served E.M.Y. with a divorce complaint. The couple continued to live together in separate rooms in the marital home. In May 2011, both parties were granted TROs as a result of a physical altercation at their home. Each sought a final restraining order (FRO). Both parties and their older son testified at trial and both parties were represented by counsel. The trial judge found neither party had met his or her burden of proof to obtain an FRO and vacated all restraints. He found plaintiff’s testimony not to be credible. The judge found both parties had entered into the other’s bedroom during the two confrontations. He found that although both parties sustained physical injuries, neither party had proved harassment or assault by a preponderance of the evidence as required for the issuance of an FRO pursuant to the act. The judge also found that neither party could establish a legitimate protective need for an FRO. The appellate panel affirms substantially on the basis of the judge’s oral and written opinions. [Decided Jan. 28, 2013.]
 
20-2-8834 L.C. v. V.C., App. Div. (per curiam) (8 pp.) Pro se plaintiff appeals from an order appointing a guardian ad litem and an order denying her motion to recuse the judge and disqualify the parenting coordinator. The panel finds that the judge did not abdicate his decision-making authority to the PC and concludes that plaintiff’s argument that the judge erred in appointing the guardian ad litem has been rendered moot by the GAL’s resignation. It then finds that by recusing himself sua sponte while at the same proceeding denying plaintiff’s motion to disqualify the PC, the judge did not sufficiently adhere to the sequencing of the court’s previous order, which required that the judge have a different judge rule on plaintiff’s motion to disqualify the PC if he recused himself. Therefore, the panel remands for a new judge to rule on plaintiff’s motion to disqualify the PC. [Decided Jan. 28, 2013.]
 
20-2-8846 Wolfson v. Wolfson, App. Div. (per curiam) (8 pp.) Defendant appeals from an order directing him to pay counsel fees from the parties’ divorce action, and from the amended dual final judgment of divorce entered after a bench trial. The appellate panel affirms for the reasons stated by the judge in his written opinion. Defendant contends that the trial court lost or ignored nine in limine motions. However, the panel discerns no prejudice to defendant that those rulings were made at trial. The trial judge determined that defendant drew down $200,000 of the parties’ joint home equity line of credit, without plaintiff’s knowledge or consent, invested it, and lost the entire amount. The panel finds no abuse of discretion by the judge in granting plaintiff one-half of the dissipated amount. Defendant also contends that by denying his motion for a jury trial his due process rights were violated. Given the issues of child welfare, child support and child parenting, the trial judge correctly denied a jury trial, concluding that the marital tort should be resolved in conjunction with the divorce action as part of the overall dispute between the parties. Finally, rejecting defendant’s argument that awarding attorney fees to plaintiff violated his due process rights, the panel finds the judge appropriately considered the factors under Rule 5:3-5, and held a hearing, before ordering defendant to pay the legal fees. [Decided Jan. 29, 2013.]
 
LABOR AND EMPLOYMENT
25-3-8847 Samiel v. Paramount Hotel Group, Law Div. — Essex Co. (Vena, J.S.C.) (8 pp.) Defendant moves for summary judgment in this action asserting violations of the Law Against Discrimination. Plaintiff’s claim that her hours were reduced because of age discrimination fails because she was not reduced to part time until the third round of layoffs and transfers from full to part time, after younger employees were let go or reduced in hours, and the only other similarly situated employee had her hours reduced at the same time. Her claim that she was discharged because of age fails because it cannot be reasonably disputed that plaintiff resigned, rather than was fired. Plaintiff’s claim of retaliatory discharge fails because there is nothing in the record to show that she engaged in protected activity prior to being transferred to part-time status and she voluntarily resigned. Her claim of discharge due to perceived disability fails because she cannot show that she was terminated and because, although she is a two-time cancer survivor, at the time of her separation, one year after her cancer treatments, she was working full time and was healthy and had no disability. Plaintiff’s complaint is dismissed. [Decided Jan. 25, 2013.]
 
25-2-8848 Cantone v. Borough of Harrington Park, App. Div. (per curiam) (35 pp.) Plaintiff appeals from the judgment affirming defendants’ termination of his employment as a police officer. Defendants cross-appeal the trial court’s earlier decision denying their motion to dismiss his complaint on the grounds that it was untimely. The panel holds that the trial court’s finding that plaintiff knew he had been found unfit for duty and had been ordered to begin counseling by a specified date and that he failed to do so and instead scheduled an appointment to obtain a second opinion and intended to submit to treatment only if that second opinion found him unfit is supported by plaintiff’s testimony, that there is nothing in the record to support plaintiff’s contention that without a medical diagnosis he could not engage in treatment, that the opinion of the psychologist who examined plaintiff and found him unfit for duty was not a net opinion and the trial court did not abuse its discretion in giving credence to his report, and that progressive discipline was not required because plaintiff’s actions impacted public safety and the orderly conduct of the police department. The panel affirms plaintiff’s removal. It also affirms on defendants’ cross-appeal, finding that plaintiff’s notice of intent to appeal was timely when measured by the second resolution to terminate his employment, which was the appropriate date since the first resolution terminating his employment was adopted in violation of the Open Public Meetings Act. [Decided Jan. 29, 2013.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
25-2-8835 Shymanski v. City of Atlantic City, App. Div. (per curiam) (25 pp.) Plaintiff filed a complaint against Atlantic City, and three of its police officers, alleging violations of the New Jersey Law Against Discrimination (the LAD). Although the complaint contained only one count, plaintiff alleged several separate violations of the LAD. Plaintiff appeals from the Law Division’s order that granted summary judgment to the city and denied her motion for reconsideration. She also contends that sanctions were improperly imposed. The appellate panel finds the city was properly granted summary judgment and that the continuing-violation theory did not apply. As to the issue of sanctions, the panel agrees with plaintiff that the questions posed during her deposition did not seek information reasonably calculated to lead to the discovery of admissible evidence and, therefore, were objectionable. The judge erred in concluding counsel’s objections violated Rule 4:14-3(c), which permits an attorney to instruct a witness not to answer a question if the basis of the objection is a right to confidentiality. The panel vacates that portion of the order that awarded sanctions. [Decided Jan. 28, 2013.]
 
LEGAL PROFESSION — ATTORNEY FEE RECOVERY — TRUSTS AND ESTATES
04-2-8836 In the Matter of Rizzo, an Alleged Mentally Incapacitated Person, App. Div. (per curiam) (4 pp.) Douglas Rizzo appeals from the Probate Part’s order making him contingently liable for the legal fees incurred by an attorney, Neil Tortora, whom the court appointed to represent Douglas’s father, Fred Rizzo, then an allegedly incapacitated person. The court entered an order appointing Douglas as his father’s guardian, and approving Tortora’s fees of $9,730. A subsequent order clarified that Douglas would be personally liable if Fred’s estate were insufficient to pay Tortora’s fee. In this appeal, Douglas challenges the factual and legal basis for imposing personal liability on him for the legal fees incurred as a result of Tortora’s representation of Fred. Fred passed away in late 2012. The net equity in Fred’s house was more than sufficient to enable his estate to pay Tortora’s fees. Therefore, the appellate panel finds there is no circumstance in which Douglas’ contingent liability would be triggered and dismisses the appeal as moot. [Decided Jan. 28, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-8806 Christiana Bank & Trust Company v. McKay, App. Div. (per curiam) (5 pp.) Defendant Karen McKay appeals from the final judgment of foreclosure; the order denying her application for Rule 4:50 relief; and the order denying her motion to vacate the sheriff’s sale that had occurred on March 14, 2012. Plaintiff Christiana Bank & Trust Company commenced the foreclosure action on Oct. 24, 2008, when the note went into default. After efforts to rescue McKay’s loan failed, plaintiff moved for the entry of a final judgment. McKay, although participating in the unsuccessful effort to restore the loan, never filed an answer to the complaint. Final judgment was entered on Sept. 14, 2010. Almost 16 months later, McKay moved to vacate the final judgment and dismiss the complaint. McKay claimed plaintiff never properly served the foreclosure complaint on her and that plaintiff’s process server “made a False Affidavit stating he served [her] the Summons and Complaint at [her residence] on November 2, 2008 12:45PM,” when McKay was allegedly at work. The judge noted that the date of the disputed service of process was a Sunday, a day that McKay did not work. The judge also recited a list of notices that were issued during the foreclosure litigation, all with McKay’s address. The appellate panel agrees with the judge that the appeal is meritless. [Decided Jan. 24, 2013.]
 
34-2-8807 Mederos v. H&C Development Corp., App. Div. (per curiam) (9 pp.) The parties entered into a contract for the purchase of “the ICC property.” The parties resolved a subsequent dispute through a settlement agreement. Plaintiffs deemed defendants to be in breach of the agreement and filed a motion for damages and specific performance, which the trial court deined. Plaintiffs filed a second motion for an order finding defendants had breached the agreement; entering judgment against defendants; and to permit plaintiffs to record the mortgage on “the Thread property,” which was the subject of a collateral mortgage. The court found that defendants had breached the covenant of good faith and fair dealing, and the agreement, by failing to pay taxes and exposing the ICC property to foreclosure. The order included language permitting the recording of the Thread mortgage. Although signed by the judge, the order was never filed. Defendants’ counsel objected to the form of order, asserting the court had not ruled that plaintiffs could record the mortgage. The court entered an order striking the paragraph stating that plaintiffs were entitled to record the mortgage. Plaintiffs filed a motion for reconsideration, arguing that the prior, unfiled, order constituted a jural act and the law of the case. As found by the trial court, there was no oral decision on the record to support the granting of the requested relief. Thus, the court did not abuse its discretion in denying plaintiffs’ motion. [Decided Jan. 24, 2013.]
 
34-2-8860 U.S. Bank National Association As Trustee v. Plaskon, App. Div. (per curiam) (9 pp.) Defendant appeals from an April 8, 2010, Chancery Division order confirming the sheriff’s sale on his property. Defendant argues the foreclosing mortgagee did not mediate in good faith and the equities favored his rights over the third-party purchaser. In response to concerns about the validity of documents as a result of robo-signing, plaintiff’s motion to stay these proceedings and to remand to the Chancery judge was granted. The Chancery Division judge entered an order and statement of reasons resolving plaintiff’s concerns and confirming the sheriff’s sale. The appellate panel affirms the order confirming the sale, finding it was well within the Chancery Division judge’s discretion. Defendant provided no competent, credible evidence of bad faith for the Chancery Division judge to review. No equities favored defendant. The appellate panel finds no basis to conduct a review of defendant’s finances. At the point of mediation, defendant had not paid his mortgage for several years, a final judgment of foreclosure with an award of attorney fees and costs had been entered, and he did not qualify under the requisite front-end debt-ratio test of the Home Affordable Modification Program (HAMP). [Decided Jan. 30, 2013.]
 
TORTS
36-2-8861 Ruday v. Shore Memorial Hospital, App. Div. (per curiam) (11 pp.) Plaintiff, an elderly lady hospitalized after a fall at home, appeals from the grant of summary judgment in favor of the hospital in this action seeking damages for injuries she suffered when she climbed over the raised rail on her hospital bed and fell. She alleges that the hospital was negligent because the alarm on her bed that should have sounded to alert staff when she attempted to get out of bed had been turned off. The panel reverses, finding that the evidence, viewed in the light most favorable to plaintiff and with the benefit of all favorable inferences, is sufficient to permit a jury to find that one of the hospital’s employees breached a duty of care owed to plaintiff and that the breach, which increased the risk of her fall, was a substantial factor in bringing about the resulting injury. [Decided Jan. 30, 2013.]
 
TORTS — PERSONAL INJURY
36-2-8862 Estate of Davis v. Vineland Operations, L.L.C., App. Div. (per curiam) (12 pp.) In this medical negligence action, plaintiff, the estate of Phyllis Davis through its administrator, appeals from the denial of its motion seeking a new trial as to damages or, in the alternative, additur. Plaintiff also appeals from the court’s denial of her request for attorney fees. Defendant cross-appeals the jury’s award of $14,760 in medical expenses, which the trial judge molded to accord with the verdict. Decedent suffered a stroke that caused a condition known as “Locked-in Syndrome.” When she was admitted to defendant’s nursing home, she was suffering from a bed or pressure sore, at stage three. During her stay, the ulcer progressed to the maximum level, stage four. The jury’s verdict attributed 30 percent of the injury to defendant’s care, and awarded plaintiff $49,200.11 for medical bills attributable to treatment of the bed sore. The jury awarded “$0” for pain and suffering. Plaintiff introduced no proof that the worsening of the bed sore caused decedent more pain. Thus, the judge appropriately denied the motion for a new trial. It follows that plaintiff failed to establish a basis for an award of damages. The application for additur was properly denied. Finally, the panel finds the court correctly denied the attorney fee demand pursuant to the Nursing Home Bill of Rights, where plaintiff’s claims were based on theories of ordinary negligence and not on a violation of any patient rights under the statute. [Decided Jan. 30, 2013.]
 
TRUSTS AND ESTATES
38-2-8849 In the Matter of the Estate of Stockdale, App. Div. (per curiam) (21 pp.) On remand from the Supreme Court, the trial court, after reviewing the trial record of this will contest, and after a nonevidentiary hearing, entered a no-cause judgment on the compensatory and punitive damages claims of the Spring Lake First-Aid Squad against Ronald Sollitto and attorney Michael Casale. The squad appeals. The squad successfully challenged as a product of undue influence and sharp dealings a will that Casale prepared and Madeleine Stockdale executed in January 2000, which made Sollitto the residuary beneficiary of her estate. The squad also established that an inter vivos transaction, in which Stockdale sold her multimillion-dollar home to Sollitto on exceptionally favorable terms, was a product of undue influence. Assuming without deciding that Sollitto and Casale’s tortious behavior proximately caused the delay in the squad acquiring title and selling the property, and the squad is entitled to recover any damages caused by that delay, the appellate panel nonetheless finds the squad’s claim fails because the squad did not demonstrate it suffered a loss as a result of the delay. Given the egregious nature of their tortious behavior, the panel finds the court erred in declining to tax Sollitto and Casale for the squad’s deposition costs, and taxes those costs against them. [Decided Jan. 29, 2013.]
 
WORKERS’ COMPENSATION AND OTHER COMPENSATION SYSTEMS
39-2-8823 Osorto v. Frank Feimer T/A FMF Construction, App. Div. (per curiam) (7 pp.) In this workers’ compensation coverage case, petitioner Santos Osorto was employed by FMF Construction, a subcontractor on a project for which Integrity Material Handling Systems was the general contractor. After he was injured on the job, Osorto filed two separate claim petitions naming FMF as the respondent and listing Travelers Indemnity Company as the insurance carrier for the employer. Travelers answered each petition “on behalf of the carrier only,” asserting that the employer’s policy was canceled prior to the accident. Travelers filed a “motion to dismiss carrier,” on notice to petitioner and FMF, claiming lack of coverage. Osorto then filed a separate claim petition against Integrity. He also filed a motion to join the Uninsured Employers’ Fund as a respondent in his petition against FMF. The appellate panel finds that, having settled Osorto’s petition without a reservation of rights, Travelers is barred from denying coverage to its insured and cannot pursue an appeal aimed at canceling that coverage. Also, Integrity was not a party to the claim petition that Travelers settled and Travelers was not a party to Osorto’s claim petition against Integrity. Travelers therefore cannot appeal from the order dismissing Osorto’s petition against Integrity. This appeal is dismissed. [Decided Jan. 25, 2013.]
 
FEDERAL COURT CASES
BANKRUPTCY
42-6-8826 In re Clemente, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (9 pp.) Before the court is a motion for reconsideration filed on behalf of the United States, seeking to vacate the order granting the Chapter 7 trustee’s motion to expunge, reduce and modify the United States’ two proofs of claims. The trustee does not oppose the United States’ motion and consented to the amended priority claim filed by the Internal Revenue Service (IRS). The debtor opposes the United States’ motion and disputes the amount and the dischargeability of the IRS’s claim. The court finds that the debtor willfully refused to pay his tax liability and is liable for penalties and interest. The court finds that there was no basis to expunge or reduce the IRS’s claims. The court rules in favor of the IRS and reconsiders its order reducing and expunging the IRS’s claims. Since the filing of the motion to reconsider, the trustee and the United States have submitted a consent order with respect to the amount and classification of the IRS’s claim. Consistent with that order, the court fixes the IRS’s priority claim of $299,590.53 and the IRS’s general unsecured claim of $654.75. To the extent these claims are priority claims, they are nondischargeable. The IRS’s motion for reconsideration is granted and the court’s order expunging and reducing the IRS’s claim is vacated. [Filed Jan. 17, 2013.]
 
42-7-8851 In re Purington, U.S. Dist. Ct. (Hillman, U.S.D.J.) (17 pp.) After debtor Purington filed a voluntary Chapter 7 bankruptcy petition, Filomena Boccella filed a complaint in the bankruptcy court seeking to block entry of discharge on grounds that Purington had misrepresented that her construction company was registered, licensed and insured in New Jersey and that Boccella had relied on this misrepresentation when she paid Purington for construction work on her home. The bankruptcy court denied Boccella’s request to declare the debt due to her from Purington as nondischargeable and dismissed her complaint with prejudice and later entered an order discharging Purington. Bocella’s appeal was dismissed for failure to comply with the procedural requirements of Federal Rule of Bankruptcy Procedure 8006. Boccella, pro se, moves for reconsideration of the dismissal. The court finds that a balancing of the six factors set forth in Poulis indicates that dismissal of the appeal is not warranted in this case. Appellant’s motion for reconsideration is granted and her appeal is reinstated. [Filed Jan. 28, 2013.]
 
CIVIL PROCEDURE
07-7-8852 Leenstra v. Then, U.S. Dist. Ct. (Linares, U.S.D.J.) (6 pp.) Plaintiff filed a complaint alleging in part that defendants violated her federal and state constitutional rights, committed false imprisonment/false arrest, and engaged in civil conspiracy. Before the court is plaintiff’s motion for relief from judgment pursuant to Rule 59(e) and Rule 60(b). Plaintiff seeks to vacate the court’s opinion and order granting summary judgment in defendants’ favor and dismissing plaintiff’s claim with prejudice. First, the court finds that any prejudice to defendant that would result from the court granting plaintiff’s motion would be minimal. Second, plaintiff has demonstrated the existence of a potentially meritorious defense. Finally, the court finds that plaintiff’s failure to timely file an opposition to defendant’s motion for summary judgment was not caused by plaintiff’s own culpable conduct. Plaintiff was represented by counsel in this matter and her counsel failed to comply with the rules of the court. The court vacates the previous order and opinion entering summary judgment against plaintiff. Plaintiff’s motion for relief from judgment is granted. [Filed Jan. 22, 2013.]
 
07-7-8853 Conjured Up Entertainment v. Hillman, U.S. Dist. Ct. (Shipp, U.S.M.J.) (7 pp.) After Judge Hillman issued an order barring additional complaints from Anthony Bussie or Conjured Up Entertainment pertaining to an alleged intelligence and war contract with the United States, plaintiff filed 44 complaints in state court that defendants removed to the district court and now move to dismiss. Plaintiff has filed a “motion to dismiss,” which the court construes as a motion to remand, and a “motion for summary judgment, trial and new trial.” After reviewing the 44 complaints, most of which concern plaintiff’s dissatisfaction with Judge Hillman’s decisions, the court grants defendants’ motion to dismiss for failure to state a claim and denies his motion for summary judgment, concluding that the complaints fail to plead facts sufficient to satisfy Rule 8(a)’s liberal pleading standards and largely contain factually unsupported allegations that are not persuasive and have no legal merit. [Filed Jan. 28, 2013.]
 
07-7-8867 Daybreak Express Inc. v. VMG Investment & Developers Co., U.S. Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) Plaintiffs filed a motion for entry of default judgment, which the court grants in part. As to damages, plaintiffs point to the rate confirmation agreement, which states that liability for loss shall be the replacement cost. Plaintiffs have submitted evidence that shows a replacement cost of $44,499.51. Plaintiffs also seek damages for (1) “testing of material” at $8,250; (2) “overtime charges for replacement batch” at $12,000; and (3) “estimated destruction cost” at $720. Plaintiffs have provided no basis to conclude that testing and destruction costs are within the scope of the replacement cost for the loss. Nor have plaintiffs submitted evidence to support the amount of the destruction cost. Plaintiffs have documented the overtime charges for replacement, which are within the scope of the replacement cost. Plaintiffs will be awarded replacement cost damages of $56,499.51. The court finds that an award of prejudgment interest is warranted. Postjudgment interest shall also be awarded. Plaintiffs are entitled to attorney fees pursuant to their tariff, and they may submit an affidavit establishing those fees. [Filed Jan. 24, 2013.]
 
CIVIL PROCEDURE — CLASS ACTIONS
07-7-8854 Bouder v. Prudential Financial Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (10 pp.) Plaintiffs filed this lawsuit as a collective action under the Federal Fair Labor Standards Act (FLSA), and as a class action on behalf of themselves and all other persons similarly situated who suffered damages as a result of violations of the FLSA, and of the labor laws of several states, and as a result of wrongful conduct and improper labor practices allegedly committed by defendants Prudential Financial Inc. and The Prudential Insurance Company of America. Lead plaintiffs filed a motion for class certification. Plaintiffs seek to certify 11 state law classes, seven of which contain subclasses, for a total of 18 subclasses. Based on the number of individual state subclasses, along with the potential for individualized inquiry, and the individual inquiry that will be necessary regarding the independent-contractor status of at least some of the members of each subclass, the court foresees significant difficulty in how this case will be managed and in how it will play out at trial. The need for individualized inquiries to address Prudential’s defense has the potential to cause confusion. The manageability issues presented by plaintiffs’ proposed class prevent the proposed class from satisfying the requirements of Rule 23(b)(3). The court denies plaintiff’s motion. [Filed Jan. 18, 2013.]
 
CIVIL RIGHTS
46-7-8827 United States v. Franco-Felix, U.S. Dist. Ct. (Pisano, U.S.D.J.) (12 pp.) Defendant was indicted for possession with intent to distribute 500 grams or more of cocaine. Defendant moved to suppress evidence that was recovered from a search of his vehicle and apartment and to suppress any postarrest statements that were made. The court finds that defendant voluntarily consented to the search of his vehicle. The evidence obtained from such search will not be suppressed. However, the court concludes that officers entered defendant’s apartment without voluntary consent. The search of the apartment violated defendant’s Fourth Amendment right to be free from unreasonable searches and seizures. Defendant’s motion to suppress evidence seized at the apartment is granted. Defendant’s motion to suppress statements obtained in connection with the search is denied as moot. [Filed Jan. 16, 2013.]
 
46-7-8840 Carter v. Buttonwood Hospital, U.S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) The court reviews a complaint after granting plaintiff’s application to file the complaint in forma pauperis. The court finds plaintiff does not allege clear causes of action or violations of constitutional or statutory rights. Plaintiff alleges she worked as an activist and was retaliated against by the Secret Service and Steve Hallett when she reported crimes. Plaintiff alleges these defendants wrongfully committed her to a mental hospital and that while there, she did not receive proper medical care. Plaintiff maintains she was previously wrongfully committed and admitted to a hospital against her will when the FBI and CIA found that she had certain knowledge. Plaintiff maintains she suffered harm by being physically confined, forcibly medicated for mental illness and not receiving medication for her diabetes, as well as being subjected to embarrassment. Plaintiff also argues that defendants violated HIPPA laws and Section 8 housing laws. The appellate panel dismisses the majority of plaintiff’s claims, finding the White House, Secret Service, New Jersey and Paula Dow are entitled to immunity. Plaintiff’s complaint fails to provide a sufficient factual basis to state a claim against the remaining defendants. Plaintiff’s complaint is dismissed. She is given leave to file a motion to amend. [Filed Jan. 17, 2013.]
 
CIVIL RIGHTS — CORRECTIONS
46-7-8828 Malouf v. Dr. Turner-Foster, U.S. Dist. Ct. (Simandle, U.S.D.J.) (26 pp.) Plaintiff, a federal inmate, asserts an Eighth Amendment claim of denial of medical care, a medical negligence claim, and a claim of retaliation. The court takes judicial notice of plaintiff’s earlier civil rights action, which raised similar prior claims. The court in the earlier action dismissed plaintiff’s claim of medical negligence for lack of jurisdiction because plaintiff failed to present the claim to the BOP, as required under the Federal Tort Claims Act (FTCA). The court granted defendants’ motion for summary judgment regarding the Eighth Amendment denial of medical care claim and retaliation claim for failure to exhaust administrative remedies. Here, plaintiff’s Eighth Amendment claim alleging denial of medical care and plaintiff’s First Amendment retaliation claim will be dismissed without prejudice for failure to state a claim. Plaintiff’s FTCA claim of medical malpractice may proceed as against the United States only, and limited to those allegations pertaining to claims of medical negligence purportedly occurring while plaintiff was confined at FCI Fort Dix. [Filed Jan. 17, 2013.]
 
CONSTITUTIONAL LAW — HABEAS CORPUS
10-7-8829 Smith v. Warden of Essex County Jail, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (11 pp.) Plaintiff, a citizen of Jamaica who pleaded guilty in state court to possession of CDS and robbery, was subsequently deported. He was rearrested for unlawful re-entry and has been remanded to the custody of the U.S. Marshal’s Service and is housed at the Essex County Jail awaiting trial on violating the INA. The state court, relying on State v. Gaitan’s holding that Padilla is not retroactive, denied his PCR motion. He filed a petition for a writ of habeas corpus, alleging that he was unlawfully imprisoned in violation of the U.S. Constitution. The court dismissed the petition, finding that no state official has custody over petitioner and thus could not be subject to a habeas corpus petition. On reconsideration, the court finds that petitioner was arrested by Immigration and Customs Enforcement officers for unlawful entry into the United States following his deportation. He is in custody facing criminal prosecution for violation of the INA. He was remanded to the USMS by the order of a U.S. magistrate judge. These are all lawful proceedings. Even if the state court were to grant his PCR and allow him to withdraw his plea taken in violation of his Padilla rights, application for federal relief more properly is made to the judge who is handling his criminal case and presently has jurisdiction over him. Therefore, his petition against the U.S. Marshal was appropriately dismissed. [Filed Jan. 24, 2013.]
 
CONSUMER PROTECTION
09-7-8868 Coba v. Ford Motor Company, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (24 pp.) This matter arises out of defendant Ford Motor Company’s inability to cure a defective fuel tank installed in a number of Ford trucks and vans. Plaintiffs filed a complaint against Ford, on behalf of themselves and persons who purchased class vehicles, asserting claims for breach of express warranty, violation of the New Jersey Consumer Fraud Act (NJCFA), breach of the implied warranty of merchantability, common-law fraud, breach of the duty of good faith and fair dealing, unjust enrichment, and unspecified injunctive relief. The complaint sought class certification, general, special, incidental, statutory, punitive, treble, and consequential damages, attorney fees, and costs. Ford filed a motion to dismiss. Ford’s motion is granted with respect to plaintiffs’ claims for common-law fraud, fraud under the NJCFA, and breach of the implied warranty of merchantability. Ford’s motion is denied with respect to plaintiffs’ claims for breach of express warranty and breach of the implied covenant of good faith and fair dealing. Plaintiffs’ claim for breach of the implied warranty of merchantability is dismissed with prejudice. Plaintiffs’ claims for common-law fraud and fraud under the NJCFA are dismissed without prejudice and with leave to amend. [Filed Jan. 22, 2013.]
 
CONTRACTS
11-8-8809 GLeS Inc. v. MK Real Estate Developer & Trade Co., Third Cir. (per curiam) (7 pp.) Appellants, a husband and wife who operate retail gasoline businesses, appeal pro se from a judgment entered against them in a breach-of-contract action brought by GLeS Inc., d/b/a Sweet Oil Company, a gasoline wholesale distributor, in which Sweet Oil alleged that appellants failed to pay several invoices for gasoline purchases and branding costs. The court affirms, finding that the magistrate judge properly concluded that appellants were not entitled to the branding incentives or reimbursement for labor expenses associated with the installation of rebranding materials they claimed in their counterclaim because their stations were never fully branded as BP stations and the work for which they sought reimbursement was not branding-specific. The court also affirms the denial of appellants’ numerous requests to supplement the record with evidence that was not presented in the district court, finding no reason to use Rule 10(e) or any equitable power to include that evidence since it was either previously available or not material. [Filed Jan. 23, 2013.]
 
11-8-8810 Leibholz v. Hariri, Third Cir. (Ambro, U.S.C.J.) (4 pp.) In 2000, Robert Hariri was looking for ways to generate revenue for his bio-tech company, Lifebank Inc. Hariri and Stephen Leibholz developed a professional relationship and Leibholz helped Hariri form a nonprofit organization. The two also discussed the possibility that Leibholz would provide consulting services for Lifebank in exchange for stock. Hariri wrote Leibholz a letter in which he purportedly promised to distribute shares of stock to Leibholz at the next annual meeting and to provide warrants to purchase common stock. Hariri did not transfer any stock. He and Leibholz continued to have a relationship until 2002. Lifebank later merged with Celgene Inc. In 2004, Leibholz contacted Hariri, who refused to remit the requested shares, and Leibholz brought suit. The basis of Leibholz claims is that the letter either confirmed an oral agreement or created an enforceable contract. The circuit panel affirms the order granting summary judgment to Hariri, finding the district court appropriately found the letter was too indefinite in terms of Leibholz’s performance to be an enforceable contract. [Filed Jan. 15, 2013.]
 
11-7-8811 Manley Toys Ltd. v. Toys “R” Us Inc., U.S. Dist. Ct. (Hayden, U.S.D.J.) (13 pp.) After a young woman died after using an allegedly defective water slide purchased from Toys “R” Us, which had purchased it from Manley, Manley sued TRU for, inter alia, breaching the holdback agreement the parties had entered into concerning satisfaction of the wrongful-death judgment a Massachusetts jury had rendered against TRU. TRU now moves to dismiss the complaint; Manley moves for a writ of attachment against TRU’s property in New Jersey. TRU’s motion to dismiss the breach-of-contract claim is denied because, at this time, the court cannot conclude that the obligations that Manley allegedly failed to perform were material conditions precedent to TRU’s obligations and, therefore, Manley’s failure to reference its performance of these obligations in the complaint is not dispositive. Manley’s fraud claim is dismissed because it is specifically premised on the allegation that TRU breached the holdback agreement and thus fails to set forth additional facts that would plausibly establish that TRU lacked the intent to honor the agreement at the time of or prior to its execution. The court declines to dismiss the counts asserting book account, goods sold and delivered and account stated because they are inseparable from Manley’s breach-of-contract claim. TRU’s motion to dismiss the quantum-meruit count is denied since at the pleading stage Manley can assert both an express contract claim and a quasi-contract claim and its allegations are sufficient to satisfy Rule 8. Manley’s claim for negligent misrepresentation is dismissed because it has not pleaded that TRU owed it any duty independent of their contractual relationship. Manley’s motion for a writ of attachment is denied because it has not raised a suggestion that TRU might conceal or secret its assets. [Filed Jan. 22, 2013.]
 
CONTRACTS — DISCOVERY
11-7-8812 Manley Toys Ltd. v. Toys “R” Us Inc., U.S. Dist. Ct. (Hayden, U.S.D.J.) (7 pp.) After a young woman died after using an allegedly defective water slide purchased from Toys “R” Us which had purchased it from Manley, Manley sued TRU for, inter alia, breaching the holdback agreement the parties had entered into concerning satisfaction of the wrongful-death judgment a Massachusetts jury had rendered against TRU. Manley now appeals from parts of an order entered by the magistrate judge requiring it to produce the financial report prepared closest in time to Jan. 5, 2012, the date the parties executed the agreement, and to produce Chan Siu Lun, a manager, who resides in Hong Kong, for a deposition. Finding that Rule 69 is a grant of authority and does not limit the scope of pretrial discovery and that Manley’s ability to indemnify TRU is relevant, the court affirms the order to produce the financial report. Finding that Lun is an appropriate deposition witness because of his role as an executive at Manley, his potential trial testimony, and his direct involvement in this litigation to date, and that the magistrate judge did not err in abiding by the principle that a plaintiff must, absent a showing of extreme hardship, appear in the district where it chose to file suit, the court affirms the order concerning Lun’s deposition. [Filed Jan. 16, 2013.]
 
 
EVIDENCE
19-7-8830 Glielmi v. The Raymond Corporation, U.S. Dist. Ct. (Schneider, U.S.M.J.) (19 pp.) This order addresses whether certain of defendants’ proposed trial exhibits should be barred because they were produced late. This lawsuit arises out of plaintiff’s forklift accident on Feb. 6, 2008, while he was in the course and scope of his employment with Superior Pool Products. Superior purchased a forklift from Raymond Corporation. Raymond forwarded the sales order to its dealer, Arbor Materials Handling Inc. Because the purchased forklift was not ready, Arbor delivered a rental stand-up forklift to Superior. While Arbor was showing Superior’s employees how to use the forklift, plaintiff was injured. The court finds that plaintiffs were required to produce the exhibits at issue in response to defendants’ discovery served in 2010. In any event, the exhibits should have been produced soon after Jan. 27, 2011, when plaintiffs’ expert’s report put defendants on notice that they would argue that plaintiff should have been trained on the loading dock. Defendants’ late production is not substantially justified. Plaintiffs will be substantially prejudiced if the exhibits are used at trial. The court grants plaintiffs’ motion to preclude defendants from submitting the evidence at trial. [Filed Jan. 17, 2013.]
 
IMMIGRATION LAW
51-7-8813 Shalom Pentecostal Church v. Napolitano, U.S. Dist. Ct. (Bumb, U.S.D.J.) (17 pp.) Plaintiffs Shalom Pentecostal Church and its pastor, Carlos Alencar, challenge the decision of the U.S. Citizenship and Immigration Service to deny the special immigrant religious worker visa petition filed by the church on Alencar’s behalf. Despite Alencar’s authorized status expiring in 1995 and lack of work authorization, Alencar has remained in unlawful status in the United States and has served as a religious minister for the church since 1998. Although the applicable statute requires that the immigrant be an individual who has been “carrying on” work for the past two years, the corresponding regulation requires that any qualifying work performed in the United States be work that was performed under lawful immigration status. Plaintiffs claim that the regulation is ultra vires because it improperly imposes an additional requirement. The statute does not delineate between time spent in the United States “lawfully” and unlawfully in the specific context of determining eligibility for “special immigrant” status. The regulation is inconsistent with the statute because the plain text of the statute solely requires that the alien have carried on work without regard to the legal status of that work. The regulation is ultra vires. Defendants’ motion to dismiss this claim is denied. [Filed Jan. 15, 2013.]
 
51-7-8869 Dussard v. Elwood, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Petitioner, an alien detained in connection with removal proceedings and currently confined at the Monmouth County Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his preremoval period of mandatory detention, pursuant to 8 U.S.C. § 1226(c). The court holds that petitioner’s detention is governed by 8 U.S.C. § 1226(a) because the Department of Homeland Security did not take petitioner into custody at the time he was released from criminal incarceration for a removable offense and it grants the writ of habeas corpus to the extent that an immigration judge conduct an individualized bond hearing to determine if petitioner is a flight risk or danger to the community. [Filed Jan. 29, 2013.]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-8831 MacDermid Printing Solutions, L.L.C. v. E.I. du Pont de Nemours & Co., U.S. Dist. Ct. (Cooper, U.S.D.J.) (2 pp.) Plaintiff MacDermid Printing Solutions brings this patent infringement action against defendant E.I. du Pont de Nemours & Co. MacDermid alleges, inter alia, that DuPont infringes U.S. Patent Number RE39,835 (the ’835 patent) by “making, using, offering to sell, selling and/or importing” a product known as “Cyrel DFM 67.” DuPont moves for summary judgment as to MacDermid’s allegations relating to Cyrel DFM 67. DuPont supports the motion with a brief and statement of undisputed facts. MacDermid has filed a brief in response to the motion. It has not filed a response to DuPont’s statement of undisputed facts, nor has it offered a counterstatement of facts. MacDermid’s brief concedes that Cyrel DFM 67 does not infringe the ’835 patent. The court grants DuPont’s motion for summary judgment insofar as this action concerns Cyrel DFM 67. [Filed Jan. 15, 2013.]
 
INTELLECTUAL PROPERTY — PATENTS — INFRINGEMENT
53-7-8841 Sunovion Pharmaceuticals v. Teva Pharmaceuticals USA Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (12 pp.) This suit arises out of the alleged infringement of plaintiff Sunovion’s patents for eszopiclone, used in the sleep medication Lunesta. The ’673 patent was issued with eight claims, three of which Sunovion asserts against defendant DRL. Sunovion alleges DRL infringed these claims with the filing of an Abbreviated New Drug Application (ANDA), seeking approval from the Food and Drug Administration (FDA) to market DRL’s eszopiclone 1 mg. 2 mg. and 3 mg tablets as generic versions of Sunovion’s Lunesta. DRL filed its renewed motion for summary judgment for noninfringement on the grounds that DRL’s proposed range for which it is seeking FDA approval was outside the purity range claimed by Sunovion’s patents. The court determined the purity level claimed by the patents-in-suit by construing the term “essentially free.” The court now turns to whether DRL’s formulation falls within its scope. The issue is whether DRL would likely sell an infringing composition pursuant to an approved ANDA. The court concludes it has not been shown by a “preponderance of the evidence that the alleged infringer will likely market an infringing product.” Further, there is no possible equivalent under the doctrine of equivalents. DRL’s motion is granted. [Filed Jan. 17, 2013.]
 
LABOR AND EMPLOYMENT
25-7-8832 Greaves v. Gap Inc., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (9 pp.) In this action arising out of plaintiff’s termination and alleging violation of the Conscientious Employee Protection Act and the Fair Labor Standards Act, the court converts defendant’s motion to dismiss into a motion for summary judgment and grants the motion, finding that plaintiff’s CEPA claims fail because they are time-barred as they were not filed within one year of his termination and because plaintiff fails to allege concerns that relate to the public; and that plaintiff’s FLSA claims fail because they are time-barred and because plaintiff has not offered support for his overtime claims or disputed the records defendant provided showing that he did not work any uncompensated overtime hours. [Filed Jan. 23, 2013.]
 
25-7-8842 Colicchio v. Merck & Co. Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Plaintiff moves for reconsideration of the court’s grant of partial summary judgment based on finding that she had not opposed defendants’ motion for summary judgment on the fourth and fifth counts, for violation of the New Jersey Family Leave Act and Family and Medical Leave Act, based on a retaliation theory. Defendants move for reconsideration regarding the court’s decision on every claim. Finding that it did overlook plaintiff’s opposition, and that she has pointed to sufficient evidence to defeat defendants’ motion for summary judgment as to the FLA and FMLA retaliation theory, the court grants plaintiff’s motion for reconsideration. It denies defendants’ motion, finding, inter alia, that the court did not overlook defendants’ evidence but rather found that plaintiff’s evidence raised material factual disputes regarding termination that need resolution at trial; contrary to defendants’ assertion, they fail to articulate a legitimate reason for not considering internal candidates for the position of vice president of Global OE; and the court did not err in its understanding of Cicchetti v. Morris County Sheriff’s Office. [Filed Jan. 25, 2013.]
 
LABOR AND EMPLOYMENT — CIVIL PROCEDURE
25-7-8814 Bourhill v. Sprint Nextel Corp., U.S. Dist. Ct. (Linares, U.S.D.J.) (11 pp.) Plaintiff, formerly employed by defendant, filed this action asserting three causes of action: failure to accommodate in violation of the New Jersey Law Against Discrimination, failure to consider accommodation in violation of the LAD, and wrongful termination in violation of the LAD. Prior to the filing of the complaint, plaintiff’s attorney sent a letter to Sprint setting forth the reasons for his belief that his termination was unlawful to which an in-house attorney for Sprint replied by letter of April 20, 2010, which included the words “confidential/for settlement purposes only.” Plaintiff subsequently moved for summary judgment, appending that letter as an exhibit. Defendants appeal from the magistrate judge’s ruling granting in part and denying in part their motion to strike. Finding that the magistrate judge did not err in finding that the first paragraph of the April letter does not contain an offer to compromise or express a willingness to settle or in declining to strike it pursuant to Rule 408, that the decision to redact only a portion of the letter was not contrary to law, and that his decision to strike the second paragraph of the letter does not undermine the policy interests underlying Rule 408, the court affirms. [Filed Jan. 23, 2013.]
 
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-8-8815 Raymond v. Barry Callebaut, U.S.A., L.L.C., Third Cir. (per curiam) (7 pp.) Greer Raymond, pro se, appeals from an order of the district court dismissing her amended complaint filed pursuant to the Employee Retirement Income Security Act (ERISA) with prejudice. Appellees raised a statute-of-limitations defense in its motion to dismiss. Section 1132(a)(1)(B) allows a plan participant to bring a civil action “to recover benefits due to him under the terms of his plan.” Raymond’s amended complaint and affidavit establish that her claim under § 1132(a)(1)(B) accrued in 1997. Raymond alleges that in 1997 she received notice of the distribution of her 401(k) funds from the Internal Revenue Service (IRS) but she never received the funds. Raymond’s claim is based on an allegedly improper liquidation of her 401(k) account in 1997. Under New Jersey’s six-year limitations period, Raymond’s § 1132(a)(1)(B) claim is time-barred. Raymond also alleges that appellees breached their fiduciary duties with respect to her 401(k) plan. Raymond had actual knowledge of the alleged breach in 1997 when she did not receive her 401(k) benefits after receiving notice from the IRS that they had been distributed. Her claim of breach of fiduciary duty is time-barred. The circuit panel affirms the judgment of the district court. [Filed Jan. 15, 2013.]
 
25-7-8855 Dal Cielo v. Mars Direct, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Plaintiff, an insured under the health insurance policy between defendant, his former employer, and Aetna Insurance Company, filed this action challenging the denial of his health benefits pursuant to the Employee Retirement Income Security Act of 1974. Mars moves to dismiss for failure to exhaust administrative remedies. Finding that plaintiff is required to exhaust the administrative remedies as set forth in the employer-based benefits plan before seeking relief in court, the court concludes that it lacks subject-matter jurisdiction because plaintiff failed to do so and failed to present evidence that administrative appeal would be futile, and it grants defendant’s motion to dismiss. [Filed Jan. 28, 2013.]
 
25-7-8870 Molinaro v. The UPS Health & Welfare Package, U.S. Dist. Ct. (Hillman, U.S.D.J.) (21 pp.) Plaintiff seeks reimbursement of benefits under his long-term disability policy, an employee welfare benefit plan governed by the Employee Retirement Income Security Act (ERISA). The court must determine whether the termination of plaintiff’s long-term disability benefits was arbitrary and capricious. Plaintiff and defendants each moved for summary judgment. The court finds the termination policy would not violate the plan’s fiduciary duties to plaintiff if it had been described in the summary plan description (SPD) or contemplated by the plan language. But instead, the plan generally requires that a participant make timely premium payments, but provides no specifics as to what “timely” means. Here, the court finds it is arbitrary to terminate benefits for a one-month deficiency payment received nine days late, where a prior three-month delinquency did not warrant termination or provide a deadline. Further, the plan administrator relied on SPD provisions that do not stand for the propositions it claims support the termination of benefits. The plan administrator’s interpretation was not reasonable. Plaintiff’s motion for summary judgment is granted as to liability. Defendants’ motion is denied. The issue of damages will be addressed after consideration of supplemental materials. [Filed Jan. 23, 2013.]
 
LAND USE AND PLANNING
25-7-8856 Tennessee Gas Pipeline, L.L.C. v. 1.693 Acres of Land in the Township of Mahwah, U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) The Federal Energy Regulatory Commission (FERC) issued a certificate of public convenience and necessity authorizing plaintiff Tennessee Gas Pipeline to perform its Northeast Upgrade Project, and providing Tennessee Gas with certain eminent-domain powers. Tennessee Gas requests that the court recognize its eminent domain authority and enter an order granting it a property interest in a road located in Mahwah. It also moves for a preliminary injunction granting it immediate possession of that property interest. The court finds Tennessee Gas has satisfied the requirements of § 717f(h) of the Natural Gas Act in that Tennessee Gas has a FERC certificate, it has been unable to acquire the property interest by contract or agreement with the landowners, and the property value exceeds $3,000. Thus, the court recognizes Tennessee Gas’s eminent-domain power, and enters an order granting the property interest. Because the preliminary injunction factors favor Tennessee Gas, the court grants the injunction allowing for immediate possession. [Filed Jan. 22, 2013.]
 
LEGAL PROFESSION — JUDGES
04-7-8871 Emmanouil v. Roggio, U.S. Dist. Ct. (Pisano, U.S.D.J.) (10 pp.) In this ongoing litigation arising out of a business deal between the parties, defendant moves to recuse Judge Pisano. Finding that the motion is another example of Roggio’s attempt to litigate issues that have already been decided and that he has failed to show that a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned, the court denies the motion. [Filed Jan. 29, 2013.]
 
PRODUCTS LIABILITY
32-7-8857 Carr-Davis v. Bristol-Myers Squibb Co., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (26 pp.) Plaintiff, as surviving spouse and administratrix of the estate of Ralph Carr, filed this action alleging that the decedent suffered injuries as a result of defendants’ design, development, manufacture, promoting and distributing of Plavix. She asserts various Missouri state and common-law claims, including failure-to-warn, defective design, manufacturing defect and negligence. Defendants move for summary judgment. The court holds that plaintiff’s failure-to-warn claim fails because the learned-intermediary doctrine excuses defendants from liability; her design defect and Missouri manufacturing defect claims fail because plaintiff has submitted no evidence that Plavix is unreasonably dangerous and therefore defective; her negligence claim fails because it is merely a restatement of her defective design, defective manufacturing and failure-to-warn claims. Defendants’ motion for summary judgment is granted. [Filed Jan. 28, 2013.]
 
TORTS — PREMISES LIABILITY
36-7-8843 Mulheron v. Philadelphia Eagles, U.S. Dist. Ct. (Shipp, U.S.D.J.) (15 pp.) This is a diversity personal-injury case. During a Philadelphia Eagles game, a fight broke out in which plaintiff played no role. The combatants (the fictional defendants), tumbled down on plaintiff and allegedly caused plaintiff serious injuries. Plaintiff’s complaint contains six claims. Defendants Philadelphia Eagles and Lincoln Financial Field filed a partial motion to dismiss. Defendants Apex Security Group Inc. and Aramark Sports and Entertainment Services filed motions for judgment on the pleadings. Plaintiff’s claim of vicarious liability is dismissed with prejudice as to all defendants. The court dismisses without prejudice plaintiff’s request for punitive damages contained in her claims of breach of express or implied warranty, negligence, and negligent supervision as to all of the named defendants. Leave to amend is granted. Apex and Aramark’s motions are administratively terminated in light of the leave to amend granted to plaintiff. Plaintiff’s Dram Shop Act claim is dismissed without prejudice as to the Eagles and Aramark. Leave to amend that claim is also granted. [Filed Jan. 18, 2013.]