STATE COURT CASES
 
ADMINISTRATIVE LAW
01-2-8949 Sevell’s Auto Body Co. Inc. v. Borough of Roselle Park, App. Div. (per curiam) (11 pp.) Plaintiff Sevell’s Auto Body Co. Inc. was licensed by defendant Roselle Park to tow vehicles deemed legally subject to removal and impoundment by the municipality. Plaintiff is statutorily authorized to charge a fee to store impounded vehicles. The issue in this appeal concerns the amount of storage fees plaintiff is entitled to receive from the borough when such vehicles are sold by the municipality at public auction. Plaintiff filed this action seeking a judicial declaration that under N.J.S.A. 39:10A-5, it is entitled to recover the total amount of its “expenses of possession” of impounded vehicles. Plaintiff also sought a writ of mandamus compelling the borough to pay plaintiff the total price received for vehicles sold at public auction. The borough argues that plaintiff’s fees are limited by N.J.S.A. 40:48-2.50, which sets out the “fees to be paid to an operator by a municipality for the storage of removed motor vehicles.” The appellate panel finds the trial court appropriately held that N.J.S.A. 40:48-2.50 limits the payment due to a tow operator when an abandoned vehicle is sold at public auction pursuant to the statutory procedures governing the sale of abandoned vehicles. The borough’s obligations to plaintiff are limited to $400 per vehicle. [Decided Feb. 7, 2013.]
 
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-2-8950 Harrison v. Jones, App. Div. (per curiam) (11 pp.) This matter arises from a construction project. Third-party plaintiffs (the Joneses) appeal from an order denying their motion to modify an arbitration award, and granting a motion by plaintiffs Albert Harrison and A&M Harrison Construction Co. to confirm the award. After the trial court granted partial summary judgment to the Joneses, they agreed to submit the remaining issues to binding arbitration. The arbitrator refused to award the Joneses damages or counsel fees on the claims under the Consumer Fraud Act (CFA). The Joneses argue that the trial court erred by refusing to award them the damages and fees. The Joneses failed to establish any basis in the Arbitration Act for the relief they are seeking. The motion judge found that A&M committed certain technical violations of the CFA and the home-improvement regulations, but the arbitrator determined that the Joneses sustained no monetary loss as a result of those violations. The arbitrator awarded the Joneses $45,800 under the terms of the construction contract, not for any loss sustained as a result of A&M’s statutory and regulatory violations. Thus, the record supported the arbitrator’s determination that the Joneses were not entitled to treble damages under the CFA. Moreover, the arbitrator’s refusal to award the Joneses counsel fees was not a basis for modifying the award. [Decided Feb. 7, 2013.]
 
BANKING AND FINANCIAL INSTITUTIONS
06-4-8990 Valley National Bank v. Grau, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (16 pp.) In this foreclosure matter, plaintiff Valley National Bank filed a motion seeking summary judgment and to strike the contesting answer of defendant Artsyl, L.L.C., and seeking leave to auction the shares of the cooperative apartment owned by defendants. Defendants filed opposition arguing the impairment of the collateral held by plaintiff as security for a loan presents a material issue of fact precluding summary judgment. Plaintiff primarily argues that the collateral was not impaired and, in any event, defendants waived this defense. The court finds plaintiff has presented a prima facie case for foreclosure and defendants have not presented any material fact as to why summary judgment should not be granted. Defendants’ argument that plaintiff knowingly or recklessly impaired the collateral by releasing property as collateral on the note, thus putting the remaining guarantors, defendants, in a compromised position, is belied by the fact the defendants were placed in a better position on the release of this collateral. Even if defendants were placed in a worse position, defendants cannot raise a defense of impairment of collateral as they validly waived this defense in their guarantees. Plaintiff does not owe defendants any fiduciary duty. Further, plaintiff made no misrepresentations and, in fact, acted in defendants’ best interests by improving defendants’ positions through the release of the property and the acceptance of a lump-sum payment. Summary judgment is granted, Artsyl’s answer is stricken, and plaintiff may proceed with the sale of the co-op. [Decided Feb. 11, 2013.]
 
CIVIL PROCEDURE
07-2-8991 Williams v. Wilson, App. Div. (per curiam) (8 pp.) Plaintiff Virginia Williams, a purchaser of a used car from defendant Family Auto Center, L.L.C., appeals from the trial court’s order entering judgment in her favor against the dealership for $2,990, denying without prejudice her request to enter default judgment against defendant bonding company, Aegis Security Insurance Company, and dismissing Family Auto’s counterclaim. She challenges the court’s finding of no liability as to the individual principals and no violation of the Consumer Fraud Act and argues that defendant Wayne Wilson, Family Auto’s general manager and principal, violated the Truth in Consumer Contract, Warranty, and Notice Act because he failed to disclose the history of the vehicle and that she is entitled to compensation from Aegis on the bond. The panel dismisses the appeal as interlocutory because the decision being appealed is not final as to all issues and parties since final judgment has not been entered against Aegis nor has that count been dismissed. [Decided Feb. 12, 2013.]
 
CIVIL RIGHTS — § 1983
46-2-8979 Collura v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (20 pp.) Plaintiff appeals from the grant of summary judgment to defendants, the borough of Lodi, the Lodi Police Department, and an individual detective and the dismissal with prejudice of his complaint against these defendants asserting claims under 42 U.S.C. § 1983 and alleging that his Fourth Amendment rights were violated because defendants did not show, prior to effecting the seizure of his car, a reasonable belief that probable cause and exigent circumstances were present excusing the need for a warrant. The panel holds that the legal principles articulated in Pena-Flores are not applicable because this case does not involve a search and seizure arising from a routine traffic stop but rather an undercover investigation of a reportedly stolen car, that the facts overwhelmingly show that defendants had probable cause to believe that the car in plaintiff’s possession was the car reported as stolen, that no warrant was required since there was no police intrusion into a constitutionally protected area because plaintiff invited the undercover detective into the garage to inspect the car, which had been offered for sale, and that under the totality of the circumstances, defendants are entitled to qualified immunity. [Decided Feb. 11, 2013.]
 
CONTRACTS
11-3-8962 Waterford of Parsippany Property, L.L.C. v. MLMT 2005-C1P1 Parsippany Property, L.L.C., Law Div. — Morris Co. (Hansbury, J.S.C.) (5 pp.) Finding that plaintiff sufficiently pleaded facts supporting his contentions that defendant, as guarantor, failed to adequately capitalize Waterford, the court finds that he states a claim for breach of the loan agreement that would trigger his right to recourse under that agreement. Further, plaintiff has sufficiently pleaded that defendant breached the loan agreement by filing a contesting answer and counterclaim. Accordingly, the motion to dismiss is denied. [Filed Jan. 28, 2013.]
 
11-2-9002 CoActiv Capital Partners Inc. v. Englewood Housing Authority, App. Div. (per curiam) (10 pp.) Plaintiff, which finances leased office and business equipment, appeals from the trial court order granting summary judgment to defendant and dismissing its complaint seeking to recover damages arising out of defendant’s alleged breach of a leasing agreement. The panel affirms, finding that the agreement, which was signed by EHA’s executive without notice to its governing body, is void because it is subject to the Local Public Contracts Law and does not fall within an exception to the public-bidding requirement; CoActiv is not an innocent party who fell victim to the fraud of a third party; and defendant may invoke the LPCL notwithstanding its having made payments under the lease agreement. [Decided Feb. 13, 2013.]
 
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-8951 Nemirovskiy v. Talker, App. Div. (per curiam) (3 pp.) Defendant appeals from a Special Civil Part judgment entered in favor of plaintiff of $6,575 plus fees and costs of $57. Plaintiff once dated defendant’s sister. During that relationship, he permitted defendant to use his credit card to pay a tuition fee totaling $6,575. Plaintiff claimed he loaned the money to defendant. When defendant refused to repay the loan, plaintiff commenced the Special Civil Part action. At trial, defendant disputed plaintiff’s testimony that the tuition payment was a loan to her. She claimed plaintiff had borrowed $7,000 from her mother, and that instead of repaying her mother, plaintiff made defendant’s tuition payment. Defendant’s mother testified and corroborated defendant’s testimony. Defendant also presented the testimony of her sister’s friend. The trial judge believed plaintiff and did not find defendant and her witnesses credible. Based on his credibility determinations, he found in favor of plaintiff. The scope of appellate review of a judgment entered in a nonjury case is limited and the appellate panel affirms the judgment in favor of plaintiff, finding no reason to disturb the judge’s findings. [Decided Feb. 7, 2013.]
 
CRIMINAL LAW
14-2-8970 State v. Fowler, App. Div. (per curiam) (25 pp.) Defendant Fowler appeals from his judgment of conviction and sentence. The charges against defendant and a co-defendant, Lathan, were based on evidence uncovered during searches of two dwellings and observations of defendants’ conduct. The judge submitted the charges based on defendant and Lathan’s possession of a controlled dangerous substance (CDS) to the jury with limiting instructions — that defendant possessed or constructively possessed only the drugs found at one dwelling and that Lathan possessed or constructively possessed only the drugs found at the second dwelling. The jury was not charged on joint possession. The jury found defendant guilty and acquitted Lathan. On appeal defendant argues the judge should have severed Lathan’s trial, precluded certain evidence and declared a mistrial. Defendant also maintains that his sentence is excessive. The appellate panel affirms defendant’s conviction but remands for resentencing where the judge incorrectly believed he was required to impose a five-year mandatory parole disqualifier on the extended term he imposed on the school-zone violation. [Decided Feb. 8, 2013.]
 
14-2-8985 State v. Torres, App. Div. (per curiam) (12 pp.) The state appeals, by leave granted, from an order granting defendant Kenneth Torres’ motion to sever his trial from that of co-defendant Daniel Rivera. Torres argued that at trial he intended to introduce evidence that prior to the date of the arrest, police had observed Rivera selling Ecstasy. The state then moved to dismiss count four of the indictment, which related to Ecstasy, against Torres, arguing that Rivera’s sales of Ecstasy would not be evidential on the charges against Torres, which, after the motion, concerned only marijuana. The court granted the motion. Without deciding whether Torres would be permitted to introduce evidence of Rivera’s earlier Ecstasy sales, and without conducting a hearing on the admissibility of the proffered evidence, the court granted the severance motion. The appellate panel finds the court erred in ordering a severance of the trials without ruling on the admissibility of the proffered evidence. Although not reaching the substantive issue of whether the proffered evidence is admissible, the appellate panel reverses the severance order of the trial court because it is premature and remands to the trial court. [Decided Feb. 11, 2013.]
 
14-2-9005 State v. Pierce, App. Div. (per curiam) (12 pp.) Defendant appeals from a judgment of conviction entered after a jury found him guilty of second-degree eluding. Three police officers identified defendant as the driver of a car that fled a motor vehicle stop. Although the state introduced a DVD produced by the video recording system in the police vehicle to corroborate the officers’ identifications, defendant’s face is not visible. Therefore, the video does not provide corroboration for the identification. Defense counsel did not request a charge on identification nor did she otherwise object to the court’s proposed jury charge. The appellate panel finds the court’s omission of the unrequested identification charge was clearly capable of producing an unjust result. Misidentification was the only issue in the case. The defense theory was to challenge the accuracy and reliability of the identifications. Thus, a charge about the vagaries of eyewitness identification was critical. The panel reverses and remands for a new trial. On remand, the court shall apply the principles regarding the admission of eyewitness identification testimony enunciated in State v. Henderson and provide an appropriately tailored instruction on in-court and out-of-court identifications based on the instructions approved by the Supreme Court. The court shall include the instruction on cross-racial identifications. [Decided Feb. 13, 2013.]
 
EDUCATION
16-2-8963 Bacher v. Bd. of Educa. of Mansfield Twp., App. Div. (per curiam) (2 pp.) Plaintiff appeals from the final administrative decision of the acting commissioner of the Department of Education upholding the board’s action reducing her salary to comply with the salary cap provisions of N.J.A.C. 6A:23A-1.2 and -3.1(e)(2). The panel affirms for the reasons stated in N.J. Ass’n of School Administrators v. Cerf. [Decided Feb. 8, 2013.]
 
16-2-8980 Bd. of Educa. of Pleasantville v. Riehman, App. Div. (per curiam) (12 pp.) After the state-appointed monitor overruled plaintiff-board’s rejection of a proposed $225,000 settlement of litigation filed by a former board employee alleging that she was terminated in violation of the Conscientious Employee Protection Act, $100,000 of which was to be paid by the board with the remainder to be paid by the board’s insurer, the board filed this action alleging that the acting education commissioner acted arbitrarily or unreasonably in determining that the monitor was acting within the scope of his authority under the School District Fiscal Accountability Act, N.J.S.A. 18A:7A-54 to -60, in overriding the board vote and approving the settlement. The panel affirms, holding that the commissioner’s conclusion that the monitor’s decision was related to the fiscal management of school funds and, therefore, that his override of the board’s vote fell within his statutory authority, was a reasonable interpretation of the act and had adequate support in the record. [Decided Feb. 11, 2013.]
 
16-4-8981 J.T. v. Dumont Public Schools, Ch. Div. — Bergen Co. (Contillo, P.J.Ch.) (21 pp.) Plaintiff brings this action on behalf of her minor child A.T., who is autistic, and on behalf of a putative class of all other similarly situated persons who need special-education services in kindergarten, alleging that members of the class are forced to attend a school in the school district other than their neighborhood school, without defendants having given consideration to whether it is reasonable and appropriate to educate these children in their neighborhood schools, as other kindergarteners are educated, in violation of the Law Against Discrimination. Plaintiffs seek, inter alia, an order requiring defendants to educate class members wherever possible in their neighborhood school and to provide in-class special-education instructors in the class members’ neighborhood schools. The parties have filed cross-motions for summary judgment. The court grants defendants’ motion, finding that plaintiffs have failed to establish a prima facie case of failure to accommodate under the LAD because they have not shown that defendant failed to reasonably accommodate A.T.’s learning disability where they provided him with all the reasonable education programs, benefits and assistance that he required within his town, though not at the school closest to his home. The placement was fully ADA-compliant and comported with the requirements of the IDEA and the Rehabilitation Act and was made through an open process in which J.T. fully participated. Further, plaintiffs have failed to prove any damages, i.e., proof of actual harm to A.T. or to any members of the putative class. [Decided Dec. 20, 2012,]
 
FAMILY LAW
20-2-8964 Loos v. Brown, App. Div. (per curiam) (6 pp.) The appellate panel reverses a family judge’s determination — reached without benefit of an evidentiary hearing and in the face of competing certifications — that prohibited the primary custodial parent’s (mother) removal of the parties’ child from New Jersey to North Dakota. In denying relief, the trial judge placed too much weight on the impact removal would have on the father’s rights and interests. The judge should not have assigned weight to any of the circumstances contained in the parties’ competing certifications because the facts were largely disputed. The judge should have recognized that the mother had satisfied the burden of presenting a prima facie case, placing the burden of going forward on the father to “produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” Once the mother presented a prima facie case, the judge should have scheduled an evidentiary hearing to resolve the parties’ many factual disputes. The panel remands for an evidentiary hearing. [Decided Feb. 8, 2013.]
 
20-2-9003 R.S. v. P.H., App. Div. (per curiam) (10 pp.) R.S. appeals from the trial court’s orders denying, without a hearing, her application for a second paternity test in connection with her minor child, the first test having determined that defendant is not the child’s biological father. Noting plaintiff’s repeated failure to appear for testing pursuant to prior orders for a second test, and the interest of the putative father and the courts in finality, the panel holds that plaintiff is not entitled to repeatedly file an application for a second paternity test, fail to appear, and then initiate the process again and affirms the denial of her most recent application. [Decided Feb. 13, 2013.]
 
FAMILY LAW — CIVIL PROCEDURE
20-2-8953 Alvarez v. Ball, App. Div. (per curiam) (5 pp.) Defendant appeals from a Family Part order denying her motion to vacate a previous order that she states vacated the obligation of plaintiff, her former husband, to pay child support. Finding that defendant has failed to include in her appendix the documents necessary to inform its appellate review, the panel dismisses the appeal. [Decided Feb. 7, 2013.]
 
FAMILY LAW — PARENTAL RIGHTS
20-2-8992 New Jersey Division of Youth And Family Services v. L.M., App. Div. (per curiam) (36 pp.) L.M. (Laura) appeals from a judgment of guardianship, terminating her parental rights to three of her children, M.M. (Martin), S.M. (Sally), and N.M. (Norman). Sally’s father, P.T. (Peter), appeals from the same judgment, which terminated his parental rights to Sally. The appellate panel affirms the judgment as to the termination of Laura’s parental rights to Martin and Norman. Because the division failed to prove that termination would not do more harm than good to Sally by clear and convincing evidence, the panel reverses the order terminating parental rights as to Sally. Sally’s age, the severity of her psychiatric disabilities and her extreme behavioral disorders, militate strongly against her prospects of achieving permanency. In seeking to terminate the parental rights of Laura and Peter, the Division of Youth and Family Services (DYFS) is promising only the possibility that Sally may be adopted. The judgment terminating the parental rights of Laura and Peter to Sally is vacated. Because the division has failed to identify any resource likely to afford permanency for Sally, and because the proofs as to Peter were so profoundly deficient, a remand is not for a new trial but requires the reopening of the Title Nine litigation. The case is remanded to the trial court for the immediate development and implementation of a reasonable, realistic and meaningful reunification plan. [Decided Feb. 12, 2013.]
 
INSURANCE LAW
23-2-8965 Gap Inc. v. Travelers Insurance Company, App. Div. (per curiam) (19 pp.) This insurance coverage case returns after a remand. On remand, Judge DeCastro found that defendant Travelers Insurance Company was not required to provide liability insurance coverage to plaintiff Gap Inc. in the underlying negligence action. Plaintiff contracted with Apex Xpress Inc. to make deliveries to its stores. One of the delivery men, Jose Otero, was injured when he was struck in the eye with a bungee cord that plaintiff’s employees attached to a rack used to move boxes. Plaintiff settled Otero’s claim against it and filed a declaratory judgment complaint seeking to require defendant to provide indemnification under an insurance policy issued to Apex for the delivery truck. Through a retroactive endorsement, plaintiff was named as an additional insured as required by Apex’s contract with plaintiff for any claims resulting from Apex’s conduct. However, plaintiff is not entitled to indemnification because Apex’s conduct did not cause Otero’s injury. Plaintiff’s own negligent acts are not covered by the endorsement. The appellate panel finds the judge properly concluded that plaintiff’s negligent act of improperly attaching unsafe bungee cords to the rack was not a “use” of the Apex truck for the purpose of triggering coverage under the automobile liability insurance policy defendant provided to Apex. [Decided Feb. 8, 2013.]
 
LABOR AND EMPLOYMENT
25-2-8954 Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey, App. Div. (per curiam) (24 pp.) Plaintiff, a molecular biologist formerly employed by defendant, appeals from the order dismissing, first without prejudice and then with prejudice, her complaint alleging employment discrimination, hostile work environment and retaliation in violation of the Law Against Discrimination and denying her reconsideration. The panel affirms, fully satisfied that, by continuously refusing to produce specified tax returns and then unilaterally redacting them and by refusing to disclose the name of her immigration attorney, plaintiff failed to produce fully responsive discovery, despite being ordered by the court to produce that information, that her refusal to comply was deliberate and contumacious, and that, under the totality of the circumstances, the sanctions imposed were not unjust or unreasonable. [Decided Feb. 7, 2013.]
 
LAND USE AND PLANNING
25-3-8966 Roth v. Board of Adjustment of the Township of Hillsborough, Law Div. — Somerset Co. (Buchsbaum, J.S.C.) (22 pp.) Plaintiff purchased the subject property in 2001 with the intent of using it as a contractor storage yard for the storage of vehicles, equipment and materials for his landscaping business and for contractor tenants. The permitted uses at that time and today do not incorporate such activity. A dispute arose over the extent of plaintiff’s use of the property and prosecution was initiated against him. He applied to Hillsborough Township for a use variance and/or certification of his activities as a nonconforming use. After 13 days of hearings, the zoning board of adjustment adopted a resolution that denied the nonconforming use certification but granted a use variance subject to a number of conditions. Plaintiff sought relief in lieu of prerogative writs in the Superior Court. The court remanded the matter for a clarifying resolution as to the board’s basis for its ruling. Such a resolution was adopted and the matter has now returned to the court. The court finds that there is a permitted nonconforming use on the site that has not been abandoned that allows it to continue to be operating for plaintiff’s landscape business, even if some parts of the business are operated by tenants. The court determines that a number of the conditions may be imposed. Others are inappropriate given the scope of the nonconforming use as determined by the court, while others should be left to site-plan approval. [Decided Jan. 17, 2013.]
 
LANDLORD/TENANT
27-3-8967 Georgia King Village v. Simmons, Law. Div., Special Civil Part, Landlord/Tenant — Essex Co. (Fast, J.S.C.) (10 pp.) Plaintiff seeks the eviction of defendant and her minor children based on a guest of her household — her children’s father — having engaged in criminal activity — a fight with another tenant. Finding that the guest did engage in a fight and that his participation constituted a threat to the right of peaceful enjoyment of the premises by other residents, and after evaluating plaintiff’s consideration of the factors included in 24 C.F.R. 5.852, the court enters a judgment for possession. [Decided Feb. 5, 2013.]
 
LEGAL PROFESSION — ATTORNEY FEE RECOVERY
04-2-8968 Malden Real Estate v. Cycle Craft Inc., App. Div. (per curiam) (4 pp.) Plaintiff Malden Real Estate appeals from that part of the amended order and final judgment that awarded counsel fees to defendant Cycle Craft Inc. In the underlying case, the Appellate Division affirmed the trial judge’s dismissal of defendant’s counterclaim for damages under the Consumer Fraud Act, reversed the denial of defendant’s request for counsel fees, and remanded for a determination of the reasonable fees defendant incurred “solely in the effort to enforce its rights pursuant to the settlement order.” On appeal, plaintiff contends the judge erred in (1) denying it an opportunity to review the billing invoices; (2) failing to compel defendant’s counsel to properly isolate fees attributable solely to defendant’s effort to enforce its rights under the settlement order; and (3) exceeding the scope of the remand and awarding an unreasonable fee. The appellate panel reverses and remands for further proceedings. It is error for the court to award counsel fees based solely on an affidavit of services and in camera review of counsel’s files without affording the adverse party an opportunity to review those files and examine counsel with respect to the necessity of the services and the reasonableness of the fees requested. [Decided Feb. 8, 2013.]
 
PUBLIC UTILITIES
37-2-8982 In the Matter of the Petition of PSE&G Pursuant to N.J.S.A. 40:55D-19, App. Div. (per curiam) (33 pp.) In these consolidated appeals, appellants Environment New Jersey, New Jersey Highlands Coalition, Sierra Club-New Jersey chapter, New Jersey Environmental Federation, and Stop the Lines challenge the order of the Board of Public Utilities, issued pursuant to N.J.S.A. 40:55D-19, that ordinances, regulations and other municipal requirements imposed under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, shall not apply to the siting, installation, construction or operation of the New Jersey portion of a 500,000-volt upgrade of a transmission system from Berwick, Pa., to Roseland, proposed by PSE&G, after finding that the project was “reasonably necessary” to enable PSE&G to provide adequate and reliable service and to avoid predicted violations of reliability standards for the electric transmission system and consequent brownouts and blackouts with adverse impact on the public welfare. The panel finds, inter alia, that the board did not misapply the legal standard governing its review of PSE&G’s petition; the board fulfilled its obligation to consider cost in determining reasonable necessity despite the uncertainty regarding the share of the $750 million costs New Jersey consumers would bear; the board did not base its finding that the line was needed for reliability reasons based on incorrect projections of energy use; and the board did not fail to consider transmission and nontransmission alternatives. [Decided Feb. 11, 2013.]
 
REAL ESTATE
34-2-8983 R.J. Brunelli & Co. Inc. v. Briad Development East, L.L.C., App. Div. (per curiam) (31 pp.) Plaintiff, a commercial real estate broker, appeals from a final judgment denying its claims for commissions. The appellate panel disagrees with the trial court’s interpretation and application of the parties’ contract for real estate commissions. The parties’ agreement set a 3 percent commission rate based on the sale price or the value of the land if such occurred through a sale or a contribution of the land to a joint venture. The panel concludes that the conveyance of the property from defendant to a joint venture company established by defendant and a third party required payment of the 3 percent commission of $600,000 to plaintiff. The same measure of fair compensation to plaintiff is an appropriate substitute for the damages it incurred as a result of defendants’ premature termination of its services. The $600,000 alternative form of commission payable to plaintiff is a reasonable measure of its damages for defendants’ breach of the leasing agreement. The panel reverses, directing that judgment be entered awarding plaintiff $600,000 in damages, and remands to the trial court to determine whether contractual prejudgment interest and attorney fees should be added to the judgment. [Decided Feb. 11, 2013.]
 
TORTS
36-2-8984 Rose v. Estate of Riva, App. Div. (per curiam) (18 pp.) Plaintiff commenced this action against the New Jersey judiciary, among others, for personal injuries sustained when she was struck by a vehicle driven by a former probation officer, Peter Riva Jr., who was fatally shot by police when he fled the scene. Plaintiff claims that the judiciary negligently hired, retained and supervised Riva. The motion judge denied the judiciary’s motion for summary judgment, finding material factual disputes precluded disposition of plaintiff’s negligent hiring/retention/supervision theory and that, as a matter of law, the Tort Claims Act does not provide immunity for such a claim. The parties stipulated certain facts, which the trial judge found sufficient to support entry of an involuntary dismissal. On appeal, plaintiff argues (1) the trial judge erred in revisiting the denial of defendant’s motion for summary judgment; (2) the trial judge failed to provide plaintiff with all legitimate inferences; and (3) neither N.J.S.A. 59:2-3(a) or (b)2 provides immunity in this instance for the negligent hiring, retention or supervision of a probation officer. The appellate panel finds no merit in plaintiff’s first two arguments, concluding that no reasonable juror could find that the hiring of Riva 20 years earlier, or his retention until suspended without pay in 2005, proximately caused plaintiff’s 2007 injuries. The appellate panel does not reach the questions posed in plaintiff’s third argument. [Decided Feb. 11, 2013.]
 
36-2-8993 Joseph v. Jefferson, App. Div. (per curiam) (17 pp.) Plaintiff appeals from the Law Division’s order granting summary judgment to defendants Alesia and Damon Jefferson dismissing his personal-injury action filed after he fell and suffered a herniated disc while delivering concrete to their home. The Jeffersons appeal the order granting summary judgment to third-party defendant Zurich American Insurance Company, which insured the concrete company and the truck plaintiff was driving, dismissing their third-party complaint for insurance coverage. The panel affirms, finding that there was no master-servant relationship between the Jeffersons and the handyman they hired to prepare the ground and spread the concrete or with the individual the handyman hired to help him and thus the Jeffersons were not responsible for the workers’ alleged negligence that caused plaintiff to trip and fall. Nor did the Jeffersons have a duty of care to plaintiff as an invitee. The panel also finds that the Jeffersons were not entitled to a defense from Zurich because plaintiff was not injured while unloading the truck but after he got out of the truck to help with spreading the concrete and thus his injury was not related to his use of the insured vehicle. Further, the panel says it is not convinced that the Jeffersons were insured under the policy because they were not owners or users of the truck. [Decided Feb. 12, 2013.]
 
TORTS — AFFIDAVIT OF MERIT
36-2-8969 Jean-Gilles v. Robert Wood Johnson University Hospital at Rahway, App. Div. (per curiam) (8 pp.) Plaintiff filed this action when, after going to the emergency room with severe stomach pains and arriving incoherent and unable to control her physical movements, and being placed in a small room with her husband to wait for a bed, she suffered a broken arm when her husband attempted to restrain her. She alleged that the hospital was negligent in leaving her unattended with only her husband and by failing to restrain her. She appeals the order dismissing her complaint with prejudice for failing to comply with the affidavit of merit statute. Agreeing with the trial judge that the common-knowledge exception was not applicable and that an affidavit of merit was required, the panel affirms the dismissal. [Decided Feb. 8, 2013.]
 
TORTS — JURY INSTRUCTIONS
36-2-8955 Afiriyie v. Bank of America, App. Div. (per curiam) (53 pp.) This appeal and cross-appeal arise out of an incident in which plaintiff, on attempting to cash a check at a bank’s branch office in a supermarket, was erroneously accused of criminal conduct and briefly arrested. The jury found the bank and its branch manager liable to plaintiff for defamation, wrongful dishonor of a negotiable instrument, and malicious prosecution and awarded $710,000 in damages. The trial court set aside the verdict and ordered a new trial. Both parties seek relief. The panel affirms the order directing a new trial on liability and damages. It finds no error in the trial court’s denial of defendants’ motion for summary judgment, concluding that plaintiff had sufficient evidence to enable a fact finder to conclude that she was entitled to relief on the three claims at issue. It also sustained the trial court’s denial of defendant’s motions for judgment at the close of plaintiff’s case in chief and at the close of evidence at the end of the trial. The panel finds that the jury instructions on the defamation claim were flawed in that the trial court did not charge the jury on the privilege applicable to the bank manager’s statements to the police, including the heightened burden of proof to overcome the qualified privilege and on the wrongful-dishonor claim because they did not charge the jury that emotional distress damages could not be awarded on such a claim and that these flaws warrant a new trial at which the jury will be provided with revised instructions and a revised verdict sheet. [Decided Feb. 7, 2013.]
 
FEDERAL COURT CASES
 
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-7-8971 Hautz Construction, L.L.C. v. H&M Department Store, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (11 pp.) In this breach-of-contract action, plaintiff alleges that defendants failed to make payments owed for subcontract work performed during construction of a store in New Jersey. The suit was initially brought in state court where defendants unsuccessfully moved to compel arbitration. Once the suit was removed to the district court, the court granted defendants’ motion for reconsideration. Relying on the forum-selection clause in the parties’ subcontract, the court held plaintiff’s claims were subject to arbitration in Wisconsin, Wisconsin law governed and plaintiff had not demonstrated unconscionability under Wisconsin law. Plaintiff now moves for reconsideration, arguing that since the state court judge’s ruling did not address Wisconsin as a potential situs, and defendants’ moving papers did not address the issue, he should be granted leave to supplement his arguments. The court denies plaintiff’s motion, finding he raised the issue of situs in his briefing, and had a full and fair opportunity to address the issue. Plaintiff’s proposed facts do not relate to procedural unconscionability. As to substantive unconscionability, Wisconsin courts have found it reasonable for a forum-selection clause to designate the headquarters of one of the parties as the situs for the arbitration. [Filed Jan. 30, 2013.]
 
BANKRUPTCY
42-7-8994 Smith v. Manasquan Savings Bank, U.S. Dist. Ct. (Pisano, U.S.D.J.) (3 pp.) Presently before the court is a motion by appellant for reconsideration of the court’s order dismissing her appeal of the bankruptcy court’s order denying her motion for reconsideration of a prior order. Also before the court is an amendment to appellant’s motion for reconsideration and a motion by appellant to dismiss appellee Teich Groh’s cross-motion to dismiss the appeal. Considering appellant’s pro se status, the court permits her to amend her motion. Appellant’s motion for reconsideration is denied because the information that she seeks to provide — additional clarification regarding the purported bias that the bankruptcy judge showed in denying her motion for reconsideration — would not alter the court’s earlier conclusion that was based on its own review of the bankruptcy court’s record and the record of appeal. Appellant’s motion to dismiss appellee’s cross-motion is denied as moot because no cross-motion is pending. [Filed Feb. 11, 2013.]
 
CIVIL PROCEDURE
07-7-8958 Rogers v. Morrice, U.S. Dist. Ct. (Simandle, U.S.D.J.) (5 pp.) Plaintiff, representing herself, has filed a motion to reopen her case as well as an application to proceed in forma pauperis. This action alleges that plaintiff and her late husband were victims of a fraudulent foreclosure on their New Jersey residence. Plaintiff’s initial application to proceed in forma pauperis was denied without prejudice for failure to complete the application, and the court administratively terminated the case. Here, the court grants plaintiff’s motion. Plaintiff’s complaint is 217 pages long and includes 377 numbered paragraphs and 438 footnotes. In addition, plaintiff references and attaches 195 pages of exhibits. Plaintiff alleges federal and state RICO claims, fraudulent concealment, aiding and abetting, reckless manslaughter, theft, fraud and negligence against 29 named defendants. The complaint does not comply with the “short and plain statement” requirement of Rule 8(a). The cCourt will dismiss plaintiff’s overlong complaint without prejudice and administratively terminate the case, subject to reopening on plaintiff’s filing of an amended complaint that complies with all relevant state and federal rules. Claims that are improper on their face because they are brought under criminal statutes that do not provide for civil remedies are dismissed with prejudice. [Filed Jan. 29, 2013.]
 
07-7-8972 Brazenor v. Kwasnik, U.S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Plaintiff moves to remand this action to the Superior Court of New Jersey and for costs pursuant to 28 U.S.C. § 1447(c). Defendant removed the matter almost one year after receiving service and three days before oral argument on a pending motion against him for sanctions. Finding that defendant’s petition is inexcusably late and procedurally defective, there is no federal question jurisdiction, and plaintiff’s state law claims are not pre-empted by the pending bankruptcy proceeding, the court grants plaintiff’s motion to remand. It also grants plaintiff’s motion for costs incurred as a result of the removal because defendant removed the action with complete disregard for the statutory criteria and for an impermissible purpose. [Filed Feb. 6, 2013.]
 
CIVIL PROCEDURE — DISCOVERY
07-7-9006 Juster Acquisition Co. v. North Hudson Sewerage Authority, U.S. Dist. Ct. (Hammer, U.S.M.J.) (12 pp.) Juster, a New York company that invests in various business opportunities such as complex financing transactions and that responded to defendant’s request for qualifications as part of its efforts to refinance and recapitalize the bulk of its primary debt, alleges that the parties executed a term sheet containing a binding exclusivity provision that defendant breached. It seeks to recover compensatory damages, costs and prejudgment interest, attorney fees and costs and other equitable relief. Defendant moves for a protective order regarding 67 word searches of electronically stored information demanded by Juster and, if its motion is denied, an order for fee shifting on plaintiff’s requested electronic discovery. The court denies with prejudice defendant’s motion for a protective order, finding that defendant has failed to present a compelling actual basis or sufficient legal background to support its motion for a protective order, and has failed to comply with Rule 26(c)(1), which requires the inclusion of a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court denies the motion for discovery fees because NJHSA has failed to satisfy its burden of showing that the ESI sought by Juster is inaccessible. Further, applying the Zubulake factors in light of the circumstances, the court does not find that fee-shifting is warranted. Finally, the court finds that because it denies defendant’s request for a fee-shifting order, plaintiff’s subsequent request that NHSA reimburse it for the electronic discovery it has incurred during the litigation is moot. [Filed Feb. 11, 2013.]
 
07-7-9007 Monk v. Johnson & Johnson, U.S. Dist. Ct. (Arpert, U.S.M.J.) (5 pp.) Before the court is defendants’ informal application to stay discovery in this putative class action while defendants’ motion to dismiss plaintiffs’ second amended complaint is pending. Defendants maintain the Private Securities Litigation Reform Act (PSLRA) requires such a stay. Defendants have moved to dismiss the newly asserted claims contained in plaintiffs’ second amended complaint, as well as two of the three claims that survived defendants’ prior motion to dismiss. Defendants assert all of these claims “are closely related” and a stay would permit defendants to avoid duplicative if not unnecessary discovery. Although acknowledging that the stay provisions of the PSLRA apply to discovery with respect to any newly added claims, plaintiffs argue that defendants’ application should be denied with respect to the claims that were the subject of defendants’ previous motion. Otherwise, plaintiffs assert, they will suffer undue prejudice. The court rejects plaintiffs’ argument that the imposition of the stay will cause undue prejudice. Both the newly asserted and previously pleaded claims relate to the same basic events. Permitting discovery to proceed with respect to the latter while imposing a stay as to the former, would cause confusion and conflict. Defendants’ application to stay discovery is granted. [Filed Feb. 5, 2013.]
 
CIVIL PROCEDURE — SETTLEMENT
07-7-8973 Abbott v. Tacconelli’s Pizzeria, U.S. Dist. Ct. (Simandle, U.S.D.J.) (25 pp.) Plaintiff Rhonda Abbott, who is hearing-impaired and disabled, alleges she was denied service at Tacconnelli’s Pizzeria because of the presence of her service dog. Gregory Lasky, who is a paraplegic and uses a wheelchair and service dog, is a “tester” who visits public accommodations to test if there are barriers to access for the disabled; he joined the suit after he was unable to enter the pizzeria because of snow piled on the curb. Plaintiffs sued the pizzeria and Vincent Tacconelli, the owner and manager; Lasky also sued Best Properties, the landlord of the strip mall, for violations of the New Jersey Law Against Discrimination and the Americans with Disabilities Act. After a settlement was reached, Abbott changed attorneys and now asserts that the settlement cannot be enforced because her former attorney did not have authority to settle the case, and the settlement agreement itself is unenforceable because essential terms are missing. Defendants move to enforce the settlement agreement. Finding that Abbott’s former attorney had actual authority from Abbott to settle the case, and no essential terms are missing from the agreement, the court grants defendants’ motion to enforce the settlement. [Filed Jan. 30, 2013.]
 
CIVIL RIGHTS
46-7-8974 Cluver v. Borough of Sayreville, U.S. Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff was issued a summons for driving a motor vehicle with tinted windows. Subsequently, plaintiff’s ophthalmologist requested and plaintiff received a medical exemption permitting him to have tinted windows. When presented with the medical exemption card, the Sayreville Municipal Court dismissed the summons. Counsel sent a letter to Sayreville stating the summons was issued without probable cause, which was forwarded to the Middlesex County Municipal Joint Insurance Fund. Following an investigation, Detective Anderson concluded probable cause existed that plaintiff had committed a fraud on the court by having the summons dismissed based on the after-acquired exemption card, and attempted to commit insurance fraud using an altered version of the card. Plaintiff was arrested but it was later revealed that the card submitted to the court was not altered and had the issuance date on it. The criminal charges against plaintiff were dismissed. Plaintiff filed a complaint alleging federal claims pursuant to 42 U.S.C. § 1983, malicious abuse of process, violation of his rights under the New Jersey Civil Rights Act, and civil conspiracy. Here, the court grants the motions for summary judgment filed by defendants Sayreville, Prosecutor Blanda, and Detective Anderson. [Filed Jan. 30, 2013.]
 
46-7-8986 Peppers v. Booker, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (10 pp.) Plaintiffs were police officers employed by the Newark Police Department. Plaintiffs assert that they were each transferred and/or demoted in retaliation for their political support of Clifford Minor — the candidate opposing incumbent Mayor Cory Booker — in Newark’s 2010 mayoral election. Plaintiffs’ complaint alleges a claim under § 1983 for interfering with plaintiffs’ First Amendment rights to freedom of speech and association; and violations of plaintiffs’ rights to freedom of speech and assembly under the New Jersey Constitution. Defendants’ motion to dismiss is granted in part and denied in part. Plaintiffs claim that by ordering the transfers and demotions, defendant McCarthy, the police director, created an official policy of retaliation against employees who did not support Booker’s re-election. The court finds that plaintiffs have sufficiently pleaded claims against the municipality and have sufficiently stated McCarthy’s personal involvement and knowledge. Defendants’ motion to dismiss plaintiffs’ claims against McCarthy is denied. The assertion that some of the plaintiffs were “known” to have acted in support of Minor does not lead to the plausible conclusion that Booker had any knowledge of such action, nor do they lead to the inference that Booker had actual knowledge of the events. The court dismisses all claims against Booker with prejudice. [Filed Jan. 30, 2013.]
 
46-7-8995 Gumbs v. O’Connor, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (7 pp.) This case involves a claim of Fourth Amendment unreasonable search and seizure arising out of a search of plaintiff’s home conducted by members of the Keansburg Police Department. The court previously granted plaintiff’s application to file a second amended complaint insofar as it added Patrolman Lopez and Special Officer Rivera as defendants in addition to defendant Detective O’Connor, and permitted plaintiff to assert a cause of action for an unreasonable search in violation of his Fourth Amendment rights against all defendants in their official and individual capacities. The court, however, denied plaintiff’s request to assert any cause of action against Lt. White or Chief Officer Pigott, as there were no adequately pleaded facts to support such claims. Plaintiff’s second amended complaint improperly included White and Pigott, and failed to omit claims of malicious prosecution, false arrest and false imprisonment. Plaintiff now seeks leave to file a third amended complaint, asserting claims against White and claims of false arrest and false imprisonment. Plaintiff is attempting to reassert claims that were dismissed three times. Plaintiff’s claims of false arrest and false imprisonment against O’Connor, Lopez and Rivera remain futile. Plaintiff’s claims against White are futile where he has not alleged that White was present at the search but only that he was the named supervisor. [Filed Jan. 31, 2013.]
 
CONSTITUTIONAL LAW
10-7-8996 International Association of Firefighters, Local 1197 v. Township of Edison, U.S. Dist. Ct. (Martini, U.S.D.J.) (8 pp.) Plaintiffs International Association of Firefighters, Local 1197 (the union), Robert Yackel, Anthony Pepe and James Walsh filed this action against Edison, Antonia Ricigliano, Dennis Gonzalez, William Stephens and Richard Laird. The union is the collective-bargaining representative for Edison firefighters. Yackel is the union’s president. Pepe and Walsh are firefighters. Ricigliano is the mayor of Edison. Gonzalez, Stephens and Laird are current or former township employees. The complaint alleges that defendants retaliated against plaintiffs because they publicly criticized defendants’ management of the fire department and campaigned against Stephens when he ran for mayor. Plaintiffs assert seven allegedly retaliatory actions by defendants. The facts alleged in this complaint have been the subject of 13 proceedings in five forums. The legal issues have been litigated and the adjudicators found the facts present no novel constitutional issues, the claims of retaliation and anti-union animus lack merit, and the township properly exercised its authority in making decisions affecting the fire department. Plaintiffs are barred from litigating the issues raised in their complaint on various grounds, including the entire-controversy doctrine, res judicata and the Younger abstention doctrine. The complaint is dismissed with prejudice. The request for frivolous-litigation sanctions is denied on procedural grounds. [Filed Jan. 31, 2013.]
 
CONSUMER PROTECTION
09-7-8975 Ciser v. Nestle Waters North America Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiffs Ciser Computer Consulting (CCC) and Gary Ciser, its owner, bring this putative class action against defendant Nestle Waters North America Inc., alleging violations of the New Jersey Consumer Fraud Act (NJCFA) and an unnamed common law, as well as unjust enrichment arising out of certain late payment fees. Nestle Waters filed a motion to dismiss for lack of standing and failure to state a claim on which relief can be granted. The court finds that Ciser has standing but CCC does not. Ciser paid CCC’s bills, so CCC did not suffer an injury that could be redressed. The court dismisses CCC’s claims without prejudice for lack of standing. Ciser, on the other hand, has standing to bring his NJCFA claim and common-law claims. Underlying each of the counts in the complaint is an argument that Nestle Waters’ late fees were unenforceable. On the facts alleged, this argument fails. Because Ciser’s allegations are conclusory, the court dismisses his claims without prejudice for failure to state a claim on which relief can be granted. [Filed Jan. 31, 2013.]
 
09-7-8987 Watkins v. DineEquity Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff Watkins brings this putative class action alleging that defendants DineEquity Inc. and Applebee’s International Inc., d/b/a Applebee’s Neighborhood Grill & Bar, d/b/a International House of Pancakes, L.L.C., violated New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), by omitting the price of soda, beer, wine, coffee and other drinks from their restaurant menus. Two motions are before the court: plaintiff’s motion for reconsideration of the court’s dismissal of the first amended complaint and defendants’ motion to dismiss plaintiff’s second amended complaint. The key issues are whether the court overlooked controlling precedent and made a clear error of law in its previous opinion and, if not, whether plaintiff’s second amended complaint pleads additional facts that would support a plausible claim under the TCCWNA. Because the court finds that it did not overlook any controlling precedent, the motion for reconsideration is denied. Because plaintiff did not add new factual allegations that plausibly present a claim for liability under the TCCWNA to her second amended complaint, the motion to dismiss is granted. [Filed Jan. 31, 2013.]
 
09-7-8997 Crozier v. Johnson & Johnson Consumer Companies Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (13 pp.) Plaintiffs filed these putative class actions alleging that defendant Johnson & Johnson Consumer Companies Inc. (J&J) violated the New Jersey Consumer Fraud Act (NJCFA) by misleading consumers to believe that J&J’s Neosporin NEO TO GO! first-aid antiseptic/pain-relieving spray contains antibiotics. In Crozier I, the court dismissed plaintiffs’ NJCFA claims without prejudice. Here, defendants’ motion for leave to file a sur-reply is granted and plaintiffs’ motion to amend their complaints is denied. The court finds plaintiffs have not pleaded affirmative advertising misrepresentations to satisfy the Rule 9(b) pleading standards. Plaintiffs have not pleaded that the spray, which contains an antiseptic, does not provide infection protection or that J&J’s statement about infection protection was false. Plaintiffs claim that J&J deceived them into believing that the spray contained antibiotics, but plaintiffs do not allege J&J ever stated that the spray contains antibiotics. The court finds the presence of the Neosporin Signature Gold Mark and Trade Dress, absent any false statements, is insufficient to satisfy the unlawful-conduct prong of the NJCFA. Plaintiff’s NJCFA claims are dismissed with prejudice. The case is dismissed. Plaintiffs’ motions to amend are denied because amendment is futile. [Filed Jan. 31, 2013.]
 
CONTRACTS
11-8-8959 Dombroski v. J.P. Morgan Chase Bank, N.A., Third Cir. (McKee, U.S.C.J.) (5 pp.) In this action alleging that the contractual disclaimer in Chase’s code of conduct is not sufficiently prominent and clear to preclude formation of a contract between Dombroski and Chase, Dombroski appeals from the district court’s order denying leave to amend his amended complaint on the ground that a second amendment would be futile. The panel affirms, finding that the language was sufficiently prominent and clear to negate the attempt to claim that the code of conduct was a contract that Chase breached. However, concluding that the lower court misinterpreted G-I Holdings Inc. v. Reliance Ins. Co., in denying Dombroski’s claim of judicial estoppel, the court holds that the district court erred in holding that judicial estoppel does not apply based on Chase’s unsuccessful assertion of a contradictory position in prior litigation. [Filed Feb. 4, 2013.]
 
CREDITOR’S AND DEBTORS’ RIGHTS — ATTORNEY FEES
15-7-9008 Westberry v. Commonwealth Financial Systems Inc., U.S. Dist. Ct. (Irenas, U.S.D.J.) (21 pp.) Plaintiff filed a complaint alleging that defendant Commonwealth Financial Systems Inc. violated the Fair Debt Collection Practices Act (FDCPA). She alleged that Commonwealth called her cellphone approximately two times a day for two to three weeks seeking payment of an alleged medical debt. According to the complaint, plaintiff requested Commonwealth to stop calling her cellphone as she would be billed for those calls. She asked Commonwealth to communicate with her only by mail. Plaintiff alleged that Commonwealth continued to call her, hung up on her when she tried to confirm Commonwealth would stop calling her cellphone, and told her the FDCPA allowed Commonwealth to call her cellphone despite her protests. Commonwealth issued an offer of judgment, whereby plaintiff would recover $1,001 in statutory and actual damages, plus reasonable attorney fees and costs. Plaintiff accepted the offer of judgment and the court entered judgment. Plaintiff sought attorney fees and costs of $8,013. Commonwealth opposes the amount of the award. The court grants plaintiff’s motion for attorney fees but reduces the total award to $4,823.50. [Filed Feb. 4, 2013.]
 
IMMIGRATION LAW
51-7-8976 Rodriguez v. Shanahan, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Petitioner, an alien detained in connection with removal proceedings and currently confined at Monmouth County Correctional Facility, has submitted a petition for a writ of habeas corpus challenging his preremoval-period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of respondents. The court holds that petitioner’s detention is governed by 8 U.S.C. § 1226(a) because the Department of Homeland Security (DHS) did not take petitioner into custody when he was released from criminal incarceration for a removable offense and grants the writ of habeas corpus directing the immigration judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2) to determine if petitioner is a flight risk or danger to the community. [Filed Jan. 30, 2013.]
 
51-7-8998 Nikolashin v. Holder, U.S. Dist. Ct. (Linares, U.S.D.J.) (10 pp.) Vladimir Nikolashin, a citizen of Ukraine who is detained at Hudson County Correctional Center, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his preremoval-period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of the Department of Homeland Security. The court holds that Nikolashin’s detention is governed by 8 U.S.C. § 1226(a) because he is not an alien who was taken into DHS custody when he was released from incarceration for a crime listed in § 1226(c) and grants a writ of habeas corpus directing the immigration judge to conduct an individualized bond hearing pursuant to 8 U.S.C. § 1226(a) to determine if Nikolashin is a flight risk or danger to the community. [Filed Feb. 7, 2013.]
 
LABOR AND EMPLOYMENT
25-7-8960 Spence v. LaHood, U.S. Dist. Ct. (Simandle, U.S.D.J.) (17 pp.) Plaintiff alleges she was terminated from her job at the Federal Aviation Administration (FAA) because of discrimination on the basis of religion, race and national origin. Plaintiff is both black and a Muslim who wears a traditional head covering in public in accordance with her religious beliefs. She brings this action against the FAA, the U.S. Department of Transportation (DOT), and U.S. Secretary of Transportation Ray LaHood. While filling out her job application online, she checked a box that she was eligible for a “derived veteran’s disability preference,” because her spouse resigned from the military due to an in-service injury. After she began working, an error was discovered that related to her preference. Plaintiff was terminated before her probation period expired because she did not qualify for the preference. The court grants defendants’ motion to dismiss all counts against the FAA and the DOT, leaving LaHood as the sole defendant because he is the head of the employing agency. The court dismisses with prejudice all claims against the FAA and the DOT and all claims under § 1981 and the New Jersey Law Against Discrimination (LAD). The sole remaining claim is a hostile work environment under Title VII. Because plaintiff fails to plead facts that form a plausible basis for relief, the motion to dismiss the claim of hostile work environment is granted without prejudice. [Filed Jan. 29, 2013.]
 
25-7-8961 Treusch v. Center Square Supermarket, U.S. Dist. Ct. (Simandle, U.S.D.J.) (39 pp.) In this action asserting claims for breach of contract, breach of fiduciary duty and gender discrimination arising out of plaintiff’s discharge from employment by defendant Center Square after he was accused of sexual harassment and defendant Local 152’s alleged failure to adequately represent him and arbitrate his grievance, the court grants defendants’ motion for summary judgment, finding that the claims for breach of contract and breach of fiduciary duty arise under § 301 of the National Labor Relations Act and, because they were filed more than six months after his final appeal to the union was denied, are time-barred. His NJLAD claim is dismissed because plaintiff has not put forth sufficient evidence to establish a prima facie case for reverse gender discrimination against either defendant and no rational jury could find that he was discriminated against in violation of the act. [Filed Jan. 31, 2013.]
 
25-7-8988 Veltri v. Abbott Severance Pay Plan for Employees of Kos Pharmaceuticals, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (41 pp.) This action involves an ERISA employee benefit plan. The plan’s sponsor is plaintiffs’ former employer, Abbott Laboratories. The plan is administered by Abbott’s divisional vice president or employee and labor relations. The plan provides that if an eligible employee’s employment is terminated without cause or the employee has “good reason” to resign, the employee is entitled to severance pay and benefits. Abbott argues that under the plan, it was entitled to cure its initial offer of a new territory that was further than 50 miles with one that was closer, and that an employee’s initial refusal of a new territory did not amount to a notice of “good reason.” The court finds that the plan administrator’s actions in interpreting the plan terms to allow itself a right to cure its initial territory offering to employees, and in interpreting the facts and plan terms to designate the date of the employee’s severance claim, constitute an abuse of discretion. Abbott is conflicted and the participants are former employees; Abbott ignored material evidence; Abbott failed to respond adequately to information requests by plan participants; and on remand the administrator ignored the distance claim. The administrator’s rigid adherence to a formula for computing distance that causes unreasonable results is further evidence that the administrator’s determinations were arbitrary and capricious. Finding benefits should be awarded to the plaintiffs, the court grants plaintiffs’ motion for summary judgment, save for an award of attorney fees. [Filed Jan. 31, 2013.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
25-8-8977 White v. Cleary, Third Cir. (Smith, U.S.C.J.) (8 pp.) Plaintiff, a teacher and formerly a cheerleading coach, filed this action alleging hostile work environment under Title VII and the New Jersey Law Against Discrimination, retaliation under the First Amendment, Title VII and the NJLAD, and unequal pay under 29 U.S.C. § 206 arising out of defendants’ refusal to reappoint her as cheerleading coach or appoint as the school’s affirmative action officer. She appeals from the district court’s grant of defendants’ motion for summary judgment. The court affirms, finding that the claims of Title VII and NJLAD hostile work environment fail because White cannot show intentional discrimination; her retaliation claims fail because she cannot show a causal link between her protected activities and the adverse action she cites and she cannot show that her speech was a substantial or motivating factor in retaliatory action or satisfy the balancing test in Pickering v. Bd. of Educ. [Filed Feb. 6, 2013.]
 
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-8978 Montvale Surgical Center v. Horizon Blue Cross Blue Shield of New Jersey Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) This is an action alleging the improper underpayment of health-care benefits under defendant Ironworkers District Council of North Jersey Welfare Fund, a self-funded welfare benefit plan governed by ERISA and administered by defendant BCBS for services provided to a plan participant by plaintiff, an outpatient ambulatory surgery center and out-of-network provider. The complaint asserts claims for breach of contract, promissory estoppel, negligent misrepresentation and unjust enrichment. The court converts defendants’ motions to dismiss into motions for summary judgment and grants the motions, finding that ERISA pre-empts the complaint and that amendment to proceed under ERISA § 502(a) is futile because plaintiff, who did not submit a second-level appeal to the fund’s board of trustees, failed to exhaust his administrative remedies under the plan and failed to make a clear and positive showing that exhausting the administrative remedies would have been futile. [Filed Feb. 5, 2013.]
 
LABOR AND EMPLOYMENT — FAMILY AND MEDICAL LEAVE ACT
25-7-9009 Young v. The Wackenhut Corporation, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (12 pp.) After her employment was terminated, plaintiff filed a complaint against defendant The Wackenhut Corporation (TWC), asserting interference with rights under the federal Family and Medical Leave Act (FMLA) relating to a leave she took in connection with the birth of her child. Plaintiff argues that TWC failed to provide her with the individualized notice of her FMLA rights that is required when an employee requests FMLA leave or when an employer has knowledge that an employee’s leave may be for an FMLA-qualifying reason. TWC asserts that its summary of rights in an employee manual provided such individualized notice. TWC also posted the poster notifying employees of their FMLA rights in a location visible to employees. These actions satisfy only the general notice requirements. TWC’s failure to provide plaintiff with individualized notice as required by the FMLA, coupled with TWC’s failure to responsively answer plaintiff’s questions about her rights and responsibilities, prevented plaintiff from ascertaining her return-to-work date. TWC’s proffered reason for plaintiff’s termination was that she failed to return to work after exhausting her FMLA leave. Plaintiff suffered prejudice because she was not afforded the opportunity to make informed decisions about her leave. Plaintiff’s motion for summary judgment is granted. [Filed Feb. 1, 2013.]
 
LABOR AND EMPLOYMENT — WAGES AND HOURS
25-7-8989 Snyder v. Dietz & Watson Inc., U.S. Dist. Ct. (Hillman, U.S.D.J.) (11 pp.) In this putative class action, plaintiff, Richard Snyder, a former delivery driver for defendant Dietz & Watson, claims that Dietz & Watson, and its president and vice president, also defendants, violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and the New Jersey Wage Payment Law (NJWPL). Plaintiff alleges that defendants misrepresented that deductions from drivers’ paychecks to account for shortages were lawful and placed in an escrow account, when instead such withholdings were unlawful and used by defendants for their own benefit. The court denies defendants’ motion for judgment on the pleadings with respect to plaintiff’s RICO claims. The court finds that resolving the issue of class certification is premature at this time because the threshold issue of numerosity is still unclear. For example, even though plaintiff suggests that the class would consist of at least 49 drivers, it is unclear whether all of those drivers were subject to the deduction policy or had deductions taken out of their paychecks. Additionally, it is unclear how many of the proposed class members are residents of New Jersey. Plaintiff’s motion to certify a class for his RICO and NJWPL claim is denied without prejudice. [Filed Jan. 30, 2013.]
 
25-7-9000 Zavala v. Wal-Mart Stores Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Plaintiffs bring this putative class and collective action against defendant Wal-Mart Stores Inc., alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Fair Labor Standards Act (FLSA) and the common law of false imprisonment. This case is a follow-on case to Zavala v. Wal-Mart Stores Inc. ( Zavala I). Plaintiffs allege that Wal-Mart entered into a criminal enterprise to exploit their labor. In Zavala I, the Third Circuit affirmed the dismissal of plaintiffs’ RICO claims, the “decertification” of the collective action, and the grant of summary judgment on the claims of false imprisonment. After the Zavala I collective action was decertified, individuals who had been part of the collective action filed this suit. The complaint contains four counts: RICO (Count I), RICO conspiracy (Count II), FLSA (Count III), and false imprisonment (Count IV). In Count III, plaintiffs assert both individual claims and a collective action under the FLSA. Wal-Mart moves to dismiss Counts I, II and IV. With respect to Count III, Wal-Mart moves to dismiss only the FLSA collective action claim. Defendants’ motion to dismiss is granted. Counts I, II and IV are dismissed with prejudice. The FLSA collective action claim asserted in Count III is also dismissed with prejudice. Plaintiffs’ individual claims under the FLSA will move forward. [Filed Jan. 31, 2013.]
 
TORTS
36-7-9001 Rodriguez v. City of Camden, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (9 pp.) In this action, plaintiff asserts several federal constitutional claims based on the alleged use of excessive force by a Camden police officer during his arrest, a Monell claim against the city and police department alleging that it was their policy, practice or custom for police officers to use excessive force and that they failed to properly train and supervise the officers, and state law tort claims against individual officers for assault and battery and intentional infliction of emotional distress. The court considers the motion of the city and police department to dismiss the claims asserted against them as one for judgment on the pleadings and grants in part and denies in part. The Monell claim is dismissed without prejudice because plaintiff has failed to allege any factual allegations concerning the city or the police department and no reasonable fact finder could plausibly infer a pattern or practice of excessive force from a single incident on a single day involving a single officer, and plaintiff has failed to identify any municipal decision-maker who adopted the alleged policies or knowingly acquiesced to the use of excessive force and, therefore, no reasonable fact finder could plausibly infer that the officer’s conduct resulted from any municipal policy or custom. The motion to dismiss the state law tort claims is denied since those claims were brought only against individual officers and defendants therefore cannot move to dismiss them. [Filed Feb. 11, 2013.]