STATE COURT CASES

ALTERNATIVE DISPUTE RESOLUTION

03-2-0354 Woodbridge Center Property v. AMP Food Holding, App. Div. (per curiam) (9 pp.) In this action alleging that defendant AMP is in default under the terms of a lease entered into with plaintiff for commercial space in the Woodbridge Center Mall for the operation of a Panchero’s Mexican Grill restaurant, AMP filed a third-party complaint against Panchero’s Franchise Corporation, claiming that it was responsible for all damages, costs and attorney fees that might be obtained by Woodbridge because it refused to permit AMP to revise the plans necessary to build the restaurant and make it economically feasible. The third-party defendant appeals from the denial of its motion to compel arbitration of its dispute with AMP pursuant to an arbitration clause in their franchise agreement. The panel reverses, concluding that the franchise agreement contained an enforceable, unambiguous arbitration provision, that the dispute fell within its scope, and the right of Woodbridge to pursue its claims against AMP in a different forum is not a sufficiently compelling reason to overcome New Jersey’s strong public policy favoring arbitration. [Decided June 20, 2013.]

03-2-0397 Amore v. Group One Automotive Inc., App. Div. (per curiam) (15 pp.) In this action alleging wrongful termination, defendants appeal from the trial court’s denial of their motion to dismiss the complaint and compel arbitration. The panel reverses, finding that nothing supports the proposition that plaintiff was forced or coerced to execute the employee acknowledgment and agreement that contained an arbitration agreement or that he was denied the opportunity to review that document before signing it. His signature on the EAA follows an explicit affirmation that he read and agreed to be bound by the agreement and had full opportunity to ask questions about its terms; the written document refutes any inference that plaintiff thought it was merely an acknowledgment of receipt of the employee handbook; the arbitration provision was prominently placed on the first page of the EAA and headed in bold print by the label “Arbitration Agreement”; and the terms of arbitration were neither hidden nor elusive. The panel finds that plaintiff’s signature is the beginning and end of the analysis and the circumstances do not permit a conclusion that fraud occurred. [Decided June 24, 2013.]

BANKING AND FINANCIAL INSTITUTIONS

06-2-0355 Central Jersey Bank v. Timm’s Window Fashions, App. Div. (per curiam) (29 pp.) Defendants Timm’s Window Fashions (TWF), Brian Timm, and Michael Timm appeal from the entry of summary judgment in favor of plaintiff, Central Jersey Bank, and the dismissal of the Timms’ counterclaim and third-party complaint against plaintiff’s counsel. Plaintiff operates as a division of Kearny Federal Savings Bank, a licensed banking institution, following merger with plaintiff’s predecessor, Central Jersey Bank, N.A. On Nov. 3, 2008, plaintiff made a commercial loan to TWF, memorialized in a promissory note. Brian and Michael Timm, as agents and members of TWF, executed the note on behalf of TWF. Defendants assert that the debt is not due and owing because the parties agreed to further extend the maturity date of the loan. Even if the parties had in fact agreed to extend the maturity date to Nov. 3, 2011, the evidence remains undisputed that TWF and the individual defendants still defaulted on the loan at that time and, accordingly, summary judgment in favor of plaintiff was properly granted. The loan at issue was for TWF, a limited liability company, and commercial in nature. The motion court therefore properly dismissed plaintiff’s FDCPA claim. Finally, the court correctly dismissed the third-party complaint against counsel for plaintiff. [Decided June 20, 2013.]

CIVIL PROCEDURE

07-2-0413 Dingler v. Yallof, App. Div. (per curiam) (5 pp.) Plaintiff appeals from an order dismissing his third complaint against defendant. The parties had entered into a settlement agreement to resolve all claims relating to their joint business venture. Under the agreement, defendant promised to pay plaintiff $90,000 pursuant to a specific payment schedule. Defendant also executed a confession of judgment in favor of plaintiff. When defendant defaulted on the required payments, plaintiff filed a complaint to enforce the settlement agreement and confession of judgment. Plaintiff’s first complaint was dismissed for failure to prosecute. Plaintiff’s second complaint was dismissed. Plaintiff’s third complaint also sought to enforce the parties’ settlement agreement. Defendant filed an answer and counterclaim, and a motion to dismiss. Defendant asserted that plaintiff’s complaint was barred by duress, fraud, unclean hands, estoppel, waiver, laches, accord and satisfaction, the entire-controversy doctrine, collateral estoppel and res judicata. The court granted defendant’s motion to dismiss and denied plaintiff’s motion to vacate the dismissal and reinstate his complaint. On appeal, plaintiff argues the trial court erred because the merits of his underlying claims have yet to be decided by the court. Plaintiff also argues that because his claims were never adjudicated on their merits, the court erroneously concluded that his complaint is barred by res judicata or the entire-controversy doctrine. The appellate panel agrees and reverses the order of dismissal. Plaintiff’s complaint is reinstated. [Decided June 25, 2013.]

CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS

07-2-0368 C&K Auto Imports Inc. v. Daimler, AG, App. Div. (per curiam) (12 pp.) The Appellate Division granted defendant Garff Enterprises Inc., d/b/a/ Ken Garff Imports (Garff), leave to appeal from an order that denied its motion to dismiss this action against it on jurisdictional grounds. This action relates to a vehicle sold by Garff, a franchise dealer for Mercedes-Benz. The complaint asserts claims of negligence and unjust enrichment against Garff. It is undisputed that Garff is a franchise dealer for Mercedes-Benz, that its business is in Utah, and that it took no “targeted” action to send the vehicle to New Jersey or to participate in any commercial transaction conducted here. Garff’s association with parties who did take such targeted action is insufficient to provide a basis for the exercise of jurisdiction. The appellate panel therefore reverses. [Decided June 21, 2013.]

07-2-0369 C&K Auto Imports Inc. v. Daimler AG, App. Div. (per curiam) (11 pp.) Pursuant to leave granted, defendant CrossRoads of Lynchburg Inc. — which is located in Virginia and purchased the car at the center of this action over the Internet in Arizona and then resold it to an entity in Florida that resold it to an entity in New Jersey that then resold it for delivery to Japan — appeals from an order denying its motion to dismiss the action against it on jurisdictional grounds. The panel reverses, finding that there is no basis for the exercise of personal jurisdiction over CrossRoads in New Jersey and that the court misapplied the stream-of-commerce theory where CrossRoad’s relevant actions occurred entirely outside New Jersey and revealed no intention to subject its conduct to the jurisdiction of New Jersey courts. [Decided June 21, 2013.]

CIVIL RIGHTS

46-2-0370 Taffaro v. Borough of Ridgefield, App. Div. (per curiam) (10 pp.) Plaintiff Michael Taffaro filed a complaint against defendants, the borough of Ridgefield and Anthony Suarez, alleging false arrest, false imprisonment, malicious abuse of process, intentional infliction of emotional distress, malicious prosecution, malicious use of process, and federal and state procedural due process violations. The allegations stemmed from plaintiff’s arrest for signing a false certification contained in a request for records pursuant to the Open Public Records Act (OPRA). Plaintiff alleged that Suarez, plaintiff’s half-sister Susan Taffaro, and Ridgefield agents and employees conspired to cause his arrest, and Suarez retaliated against him for a letter critical of Suarez that he sent to Ridgefield residents during Suarez’s mayoral campaign. Plaintiff was involved in acrimonious litigation against Susan over his stepmother’s estate, which included a home in Ridgefield. Here, plaintiff appeals from the order granting summary judgment to defendants and dismissing plaintiff’s complaint with prejudice, and from the order denying his motion for reconsideration. Because the police had probable cause to arrest plaintiff and plaintiff presented no competent evidence connecting Suarez to the arrest, the appellate panel concludes the trial judge properly granted summary judgment and denied reconsideration. [Decided June 21, 2013.]

CONTRACTS

11-2-0432 Patterson v. Polidoro, App. Div. (per curiam) (7 pp.) Defendant Joseph Polidoro appeals from an order enforcing an alleged settlement of this lawsuit, arguing he did not consent to its terms. Plaintiffs James and Debra Patterson commenced this action against defendants Polidoro and Green Cities Energy, alleging breach of contract, violation of the Consumer Fraud Act, and other causes of action, arising from defendants’ sale of a solar panel system and windmill for installation at plaintiffs’ residence. The parties and their attorneys met to mediate a resolution of this matter. Plaintiffs concede no agreement was reached at that time, but a document titled “Settlement Agreement and General Release” was prepared by the law firm representing defendants and forwarded to plaintiffs’ counsel to which plaintiffs agreed. Polidoro, however, refused to sign the agreement and asserted that he did not consent to its terms. Thereafter, the law firm representing defendants moved to withdraw because the insurance carrier instructed that attorney fees and costs would no longer be paid in connection with defendants’ defense. Plaintiffs filed a cross-motion for enforcement of the settlement agreement. Without conducting an evidentiary hearing, the trial judge decided to enforce the agreement. The appellate panel finds that the trial judge erred in concluding, without an evidentiary hearing, that the parties had settled. Because the record was not sufficiently clear of doubt about whether Polidoro had agreed to settle, the order is reversed and the matter is remanded for an evidential hearing. [Decided June 26, 2013.]

CREDITORS’ AND DEBTORS’ RIGHTS

15-2-0371 CIT Technology Financing Services Inc. v. Starnet Design and Lithograph Inc., App. Div. (per curiam) (8 pp.) Plaintiff CIT Technology Financing Services Inc. filed a complaint alleging, inter alia, that defendant Starnet Design and Lithograph Inc. (SDL) defaulted on three leases with plaintiff for business equipment. The individual defendants executed personal guaranties of payment as to one of the leases (the first action). The Law Division entered judgment in favor of plaintiff against SDL. Judgment was also entered against the individual defendants. Plaintiff filed a subsequent action alleging legal and equitable fraud and violation of the Uniform Fraudulent Transfer Act, asserting that SBS and Graphix were liable as “successors-in-interest” of SDL. The individual defendants moved for summary judgment. CIT then filed a motion in the first action seeking an accounts receivable levy on any pending payments to SDL pursuant to the purchase agreement and an assignment of SDL’s rights and credits under the purchase agreement. Without granting oral argument, the Law Division judge entered an order denying CIT’s motion. The factual circumstances and legal implications surrounding the prior debts at issue in the first action, and the purchase agreement and the guarantees, are contested. The appellate panel concludes that the failure to resolve these factual disputes hampers review of the issues on appeal. Thus, the panel reverses and remands. [Decided June 21, 2013.]

CRIMINAL LAW

14-2-0360 M.D. v. Verno, App. Div. (per curiam) (11 pp.) Plaintiff appeals from the trial court’s order dismissing his verified complaint and action for three writs of mandamus seeking to (1) compel defendant Michele Verno, in her capacity as municipal court prosecutor, to dismiss the charge of possession of narcotics paraphernalia because he was a participant in a sterile syringe access program; (2) prohibit Verno from dissuading pro se litigants from retaining counsel; and (3) prohibit the prosecution of those who are in possession of syringes and hypodermic needles who are participating in sterile syringe access programs. On appeal, plaintiff recognizes that mandamus is an extraordinary remedy but urges that it was warranted under these circumstances, arguing N.J.S.A. 2C:36-6a afforded him the right not to be charged with possession of the needles rather than requiring him to assert it as an affirmative defense in court. Plaintiff is basically asking the court to provide an advisory opinion respecting the applicability of N.J.S.A. 2C:36-6a to municipal court prosecutions statewide. The appellate panel declines to do so and affirms. [Decided June 20, 2013.]

14-2-0361 State v. Bass, App. Div. (per curiam) (24 pp.) Defendant appeals from his conviction on numerous charges arising out of an attempted car-jacking and subsequent police chase. The order denying defendant’s suppression motion is affirmed. His convictions for eluding; possession of a weapon, a firearm, for an unlawful purpose; and possession of a weapon, a motor vehicle, for an unlawful purpose are reversed because of the failure of the verdict sheet to allow for a clear expression of the jury’s finding on the eluding charge and because defendant was prejudiced by the judge’s failure to identify for the jury the possible unlawful purpose or purposes on the two counts of possessing a weapon for an unlawful purpose. The remaining convictions are affirmed. In light of the impact on the overall sentence caused by these rulings, the panel remands for resentencing on all counts after any further proceedings that occur with respect to the convictions that have been reversed. [Decided June 20, 2013.]

14-2-0362 State v. Sasala, App. Div. (per curiam) (20 pp.) Defendant appeals from the denial of his petition for postconviction relief (PCR). The appellate panel reverses the order denying defendant’s petition and remands for an evidentiary hearing on defendant’s claim alleging ineffective assistance of counsel and a hearing to determine whether he should be permitted to withdraw his guilty plea. Defendant stole a car without realizing a passenger was in the back seat. On realizing there was a passenger, defendant allowed the passenger to exit the car. Here, defendant was asked if he was guilty of second-degree kidnapping but was not asked for a factual basis that included the required predicate purpose. The factual basis he provided was legally insufficient to support a conviction for second-degree kidnapping. [Decided June 20, 2013.]

14-2-0363 State v. Stewart, App. Div. (per curiam) (14 pp.) Defendant appeals from his judgment of conviction and sentence. A Bergen County grand jury charged defendant with second-degree disarming a law enforcement officer, third-degree aggravated assault on a law enforcement officer, and two counts of third-degree aggravated assault with a deadly weapon. A jury convicted defendant of the first two counts and acquitted him of the remaining counts. The principal issue on this appeal concerns the pretrial ruling that precluded defendant from offering the testimony of an expert witness, Dr. Chalemian, that defendant suffered from a mental disease or defect. The appellate panel affirms defendant’s convictions, finding the motion judge’s ruling to bar the opinions of Dr. Chalemian relating to mental disease or defect was not a mistaken exercise of discretion. The record also fully supports the motion judge’s conclusion that Dr. Chalemian’s report was a net opinion. The panel remands for a new sentencing hearing where the state concedes two errors. First, NERA only applies to disarming a law enforcement officer in the first degree, but not in the second degree. Second, the judge double-counted as an aggravating factor the fact that the offenses involved law enforcement officers. [Decided June 20, 2013.]

14-2-0364 State v. Theodore, App. Div. (per curiam) (35 pp.) Defendants Chantal Theodore, Jessica Theodore, David Romilus and Walter Janvier were tried and convicted before the municipal court in Elizabeth of disorderly persons offenses. The arrests occurred during an incident following the death of Chantal’s son, as family and friends gathered at her home. Chantal was found guilty of obstructing the administration of justice, Jessica of simple assault, and Romilus and Janvier of disorderly conduct. Defendants appealed to the Law Division and after a de novo review, the Law Division found defendants guilty and imposed the same penalties ordered by the municipal court. Here, defendants argue that the evidence presented by the state did not establish, beyond a reasonable doubt, that they committed any offense. They also argue that the arresting officers violated Chantal’s constitutional right against unreasonable searches and seizures by attempting to enter her home by force, without a warrant or other legal grounds. The appellate panel affirms the trial court’s decision finding Chantal guilty of obstructing the administration of law. The trial court’s factual findings as to Chantal are supported by competent evidence. The encounter between Chantal and the arresting officer did not violate her constitutional rights. The panel reverses Romilus’ and Janvier’s convictions for disorderly conduct. The record does not support the court’s findings as to these defendants. The panel reverses Jessica’s conviction for simple assault against Capt. Tourner. The record shows that Jessica’s actions did not cause Capt. Tourner “bodily injury,” as defined by the statute. [Decided June 20, 2013.]

14-2-0365 State v. Williams, App. Div. (per curiam) (8 pp.) Defendant appeals from her conviction of second-degree attempt to commit extortion. The sole basis for his challenge is alleged ineffective assistance of counsel. Noting that the claim of ineffective assistance is not cognizable on direct appeal and that the argument was never presented to the trial court, the panel nevertheless vacates the sentence and remands for further proceedings because defendant may have received an illegal sentence here, where she pleaded guilty to a second-degree crime but the judge imposed a downgraded sentence within the third-degree range without expressly balancing the aggravating and mitigating factors and without addressing the applicable interest-of-justice standard. [Decided June 20, 2013.]

14-2-0381 State v. Montes, App. Div. (per curiam) (20 pp.) On leave granted, the state appeals from the Law Division order that granted defendant’s petition for postconviction relief and directed that a new sentencing hearing take place after the PCR judge found that counsel was ineffective at sentencing because he did not urge the court to consider several mitigating factors that would probably have resulted in defendant being sentenced to a prison term appropriate to a crime of one degree lower than first-degree attempted murder, and that because of the disparity between defendant’s sentence and the co-defendant’s sentence, a new sentencing hearing should be held. The panel reverses, finding that (1) defendant did not make a prima facie showing that counsel was ineffective because he did not establish that his sentence would have been different had counsel effectively represented him at sentencing since he has identified no compelling reasons in addition to, and separate from, the mitigating factors that he says his plea counsel should have raised at sentencing to justify a lesser sentence; and (2) defendant is not entitled to a new hearing because, inter alia, he failed to establish that his case and that of the co-defendant were substantially similar regarding all relevant sentencing criteria. [Decided June 21, 2013.]

14-2-0382 State v. Reid, App. Div. (per curiam) (10 pp.) Defendant was convicted of possession of a controlled dangerous substance and he pleaded guilty to an amended charge of violating the regulatory provisions relating to firearms, N.J.S.A. 2C:39-10. The panel affirms the conviction for possession of CDS. However, it reverses and vacates the conviction for the regulatory provisions violation and remands for further proceedings, finding that defendant’s statement, that while mowing his lawn he took a BB gun from his nephew, failed to give a factual basis for a conviction of 2C:39-10. [Decided June 21, 2013.]

14-2-0439 State in the Interest of J.L., App. Div. (per curiam) (3 pp.) By leave granted, the state appeals from a Law Division order permitting defendant to obtain a copy of digital evidence in discovery and share it with his expert under a protective order. Defendant J.L., a juvenile, was charged with possession and distribution of child pornography, which if committed by an adult constitutes a crime. In response to defendant’s request for a copy of all discovery, the state provided limited written discovery and refused to turn over a digital copy of the underlying data that formed the basis of the charges. Defendant filed a motion to compel the state to provide all discovery, including a digital copy of the underlying data, and proposed a protective order. The state filed a motion to compel defendant to review the digital data in the prosecutor’s office. The trial judge issued a written opinion, which permitted provision of the requested discovery, subject to the terms of a detailed protective order. This interlocutory appeal followed. The New Jersey Supreme Court recently issued its opinion in State v. Scoles, wherein the court established a template to strike a balance between a defendant’s right to discovery and the public’s interest in protecting victims of child pornography. Although the protective order here provides many of the components the court deemed necessary, because the order was written without the benefit of the new template, the appellate panel reverses and remands to the trial court to consider the issue anew consistent with the Supreme Court’s mandate in Scoles. [Decided June 26, 2013.]

ENVIRONMENTAL LAW

17-2-0398 Linden Roselle Sewerage Facility v. New Jersey Department of Environmental Protection, App. Div. (per curiam) (16 pp.) The New Jersey Department of Environmental Protection (DEP) commenced a lawsuit, pending in the Law Division (Passaic River litigation), which seeks relief under the common law and the New Jersey Spill Compensation and Control Act, regarding the alleged discharging of toxic chemicals from manufacturing facilities in Newark. Defendants Maxus Energy Corporation and Tierra Solutions Inc. filed third-party complaints in the Passaic River litigation against public and private entities, seeking contribution pursuant to the Spill Act and the Joint Tortfeasors Contribution Act, alleging they contributed to the contamination alleged in the DEP’s complaint. Many of the third-party defendants moved for dismissal of the Spill Act contribution claim. The Law Division judge denied the motion, relying on the Passaic River litigation’s special master’s recommendation, which was based on an interpretation of the words “sewage” and “sewage sludge” in an exception in the Spill Act, as interpreted in N.J.A.C. 7:1E-1.6. The third-party defendants did not seek leave to file an interlocutory appeal. Instead, some of them filed this appeal seeking a determination of the validity of the N.J.A.C. 7:1E-1.6 definitions of “sewage” and “sewage sludge.” The appellate panel dismisses the appeal that ostensibly seeks review of an agency regulation as of right but, in actuality, is an appeal of an interlocutory order entered in the Passaic River litigation. [Decided June 24, 2013.]

FAMILY LAW

20-2-0357 A.M. v. J.S.V., App. Div. (per curiam) (9 pp.) Defendant appeals from the denial of his motion to vacate a final restraining order entered pursuant to the Prevention of Domestic Violence Act. The panel affirms, finding that the trial judge considered all of the Carfagno factors, including whether plaintiff objectively fears defendant, and correctly concluded that defendant failed to demonstrate a substantial change in circumstances and good cause for vacating the FRO. The judge correctly concluded the parties’ history of domestic violence and the totality of circumstances established the objective reasonableness of plaintiff’s continued fear of defendant. [Decided June 20, 2013.]

20-2-0372 Rucker v. Rucker, App. Div. (per curiam) (8 pp.) Plaintiff appeals from two postjudgment matrimonial orders regarding the parties’ obligations for their children’s college costs. The panel affirms, finding that defendant’s cross-motion was timely filed and that it was not unreasonable for the court to allow that parties an opportunity to resolve all related issues in a single hearing and the court did not err in not conducting an evidentiary hearing to determine the amount of defendant’s assets where the court correctly concluded that plaintiff failed to establish that defendant had misrepresented his financial status. [Decided June 21, 2013.]

20-2-0399 J.D.G. v. R.P.G., App. Div. (per curiam) (13 pp.) Defendant appeals from a final restraining order, entered pursuant to the New Jersey Prevention of Domestic Violence Act, contending that the Family Part judge erred in relying on allegations plaintiff had previously included when she filed a Pennsylvania protection-from-abuse petition, which was dismissed with prejudice. The panel affirms substantially for the reasons expressed below. It adds, inter alia, that giving preclusive effect to the Pennsylvania order would run counter to the public policy of New Jersey and the protective purposes of the PDVA since that action was dismissed because plaintiff failed to appear and there was no adjudication on the merits of plaintiff’s request for protection. [Decided June 24, 2013.]

20-2-0400 Musa v. Musa, App. Div. (per curiam) (14 pp.) Defendant Paul Musa appeals from an order denying his motion to vacate an order that obligated him to satisfy equitable distribution, granting plaintiff Dollie Musa possession of the marital home, and awarding plaintiff $875 in counsel fees. The appellate panel affirms in part and reverses in part. The panel agrees with Paul that the record is unclear as to the basis on which the trial judge granted Dollie possession of the marital home. The final judgment of divorce is clear that Paul was granted exclusive possession of the home until such time as their daughter completed college or professional school. Thereafter, the parties were to either buy out one or the other’s interest or sell the property and equally divide the net proceeds. The panel reverses the portion of the order granting Dollie possession of the marital home. On remand, the trial court must give further consideration of Dollie’s request for possession of the house and the previously ordered equitable distribution of the property. [Decided June 24, 2013.]

20-2-0401 New Jersey Division of Youth and Family Services v. B.M., App. Div. (per curiam) (4 pp.) The judge’s finding of abuse or neglect, based chiefly on the mother’s drug use while pregnant, is vacated in light of N.J. Div. of Youth & Family Servs. v. A.L. and the matter is remanded for further proceedings. [Decided June 24, 2013.]

20-2-0414 K.M. v. J.G., App. Div. (per curiam) (18 pp.) This is a domestic-violence case. Defendant J.G. appeals from the entry of a final restraining order (FRO) against him and in favor of plaintiff K.M., issued under the Prevention of Domestic Violence Act of 1991. Plaintiff cross-appeals from the order awarding her only 50 percent of her counsel fees. The appellate panel affirms the FRO. Defendant’s numerous emails threatening to release nude photographs of plaintiff into the public domain, attempting to extort money from her, bragging that he enlarged them — a fact later confirmed at a custody exchange of the parties’ child — and intimating that they have already been disseminated, constitute a course of conduct clearly meant to alarm, intimidate and seriously annoy plaintiff. There is also ample credible evidence that an FRO was necessary to protect plaintiff from further abuse. The panel remands the counsel-fee issue to the Family Part for a statement of reasons and reconsideration. [Decided June 25, 2013.]

20-2-0433 In the Matter of the Seizure of Weapons Belonging to D.P.P., App. Div. (per curiam) (12 pp.) Defendant D.P.P. appeals from an order entered by the Family Part, granting the state’s motion to forfeit his seized weapons and to revoke his firearm permits and licenses, pursuant to N.J.S.A. 2C:25-21(d)(3). He contends that the trial judge erred in permitting the state to retain an expert witness after the trial had commenced, and that the trial judge’s factual findings were against the weight of the evidence. The appellate panel disagrees and affirms substantially for the reasons stated by Judge Firko. Based on defendant’s mental illness and his history of violence and threats of violence toward his co-workers and his ex-wife, the judge concluded that the state carried its burden of proving that allowing defendant to have firearms would pose a danger to the public health, safety or welfare. It was not an abuse of the judge’s discretion to allow the state to present testimony from its expert. The defense had time to prepare a response to the defense expert’s testimony and was permitted to re-call its own expert after he testified. As a sanction, the judge ordered the state to pay defendant’s expert’s fee. [Decided June 26, 2013.]

FAMILY LAW — LEGAL PROFESSION

20-2-0358 Carr v. Carr, App. Div. (per curiam) (16 pp.) In connection with plaintiff’s suit to dissolve the parties’ marriage, defendant filed, inter alia, a third-party complaint that sought remedies against plaintiff’s parents, sisters and brothers-in-law relating to the ownership of real estate they occupied. Plaintiff’s family was represented by Mark Sobel from Greenbaum Rowe Smith & Davis; she has at all times been represented by separate counsel. However, she lent money to her family so that they could continue to advance their positions. The third-party matter was settled while the divorce trial continued regarding a multitude of issues between plaintiff and defendant. Postjudgment motions were heard by a different Family Part judge who, five years before she took the bench, had been employed side by side with Sobel at Greenbaum Rowe for three months. Defendant appeals from that judge’s orders, including the denial of his motion for recusal. The panel reverses the denial of recusal. It reads Canon 3(C)(1)(b) expansively to ensure its broad prophylactic purposes and concludes that the settled third-party action was clearly the same matter as that presented to the motion judge in 2012, and that given the jurisprudential linkages between the third-party issues and equitable distribution, the familial ties between Sobel’s clients and plaintiff, and the financial connections engendered by her underwriting some of her relatives’ legal expenses that were owed to Sobel, there could be reasonable questions in the minds of the litigants and the public about the fairness of the proceedings that require recusal. [Decided June 20, 2013.]

LABOR AND EMPLOYMENT

25-2-0402 In the Matter of Valentin, App. Div. (per curiam) (6 pp.) Jose Valentin, a senior corrections officer employed by the Adult Diagnostic and Treatment Center (ADTC), appeals from the Civil Service Commission’s decision to terminate his employment. The ADTC removed Valentin from his position for conduct unbecoming an employee, and other sufficient cause, based on an incident during which Valentin was accused of interfering with Perth Amboy police officers acting in their official capacity. Because the commission’s findings are based on substantial credible evidence and the discipline imposed was not arbitrary, capricious or unreasonable, the appellate panel affirms. [Decided June 24, 2013.]

25-2-0415 Sharp v. Board of Trustees, App. Div. (per curiam) (20 pp.) This matter involves the arrangement appellant Joseph Sharp had with Union County to continue as the administrator for Runnells Specialized Hospital of Union County following his July 1, 2003, retirement and receipt of pension benefits from respondent Public Employees’ Retirement System (PERS). Administrative Law Judge Braswell determined that: Sharp was an employee of the county, not an independent contractor, who returned to a PERS-covered position following his retirement in violation of N.J.S.A. 43:15A-57.2; his retirement was not bona fide pursuant to N.J.A.C. 17:2-6.2; and he had to re-enroll in PERS, pay pension contributions for that enrollment, and repay all retirement benefits he received between Aug. 1, 2003, and October 2009. PERS issued a final decision adopting ALJ Braswell’s initial decision. On appeal, Sharp argues that the record does not support PERS’s findings that he was a county employee postretirement and did not meet the criteria of an independent contractor under the IRS 20-factor test. The appellate panel rejects these arguments and affirms, finding there was more than sufficient credible evidence in the record as a whole supporting PERS’s decision. [Decided June 25, 2013.]

25-2-0416 Shipe v. Saker ShopRites Inc., App. Div. (per curiam) (37 pp.) Defendant appeals from a final judgment entered in favor of plaintiff after a jury found that Saker had wrongfully discharged plaintiff because of her female gender, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The panel reverses the jury’s finding of liability because the trial court failed to provide the jury with appropriately tailored instructions on the fourth element of a prima facie claim — replacement — and a corresponding detailed verdict sheet, and the panel cannot conclude that the omission was inconsequential. The panel also reverses the award of front pay because the evidence furnished by plaintiff did not meet the evidentiary burden necessary to justify an award for front pay as delineated in Quinlan, and the award of emotional distress damages because the charge blended the issues of harm from past and future emotional distress and because of the close nexus to the claim of front pay. It remands for a new trial on those issues. The panel affirms the jury’s award of back pay, contingent on the outcome of the new trial regarding liability. [Decided June 25, 2013.]

LAND USE AND PLANNING

26-3-0417 Ambielli v. Lebanon Twp., Law Div. — Hunterdon Co. (Buchsbaum, J.S.C.) (31 pp.) This case involves the proposed opening of a 13-bed residential substance abuse treatment facility by GenPsych, P.C., on property in the industrial zone of Lebanon Township. GenPsych sought conditional-use approval for the proposed facility as an institutional use, a permitted conditional use in the zone. Plaintiffs challenge the planning board’s approval of the application for conditional use and site-plan approval, as well as the grant of the requested bulk variance relief. The court finds that the board properly exercised its authority to interpret the ordinance and conclude that it includes private hospitals as permissible institutional uses and properly determined that the proposed facility constitutes a private hospital. The ordinance is severable and the board properly severed the negative criteria language of § 400-11A of the ordinance that the board concedes is improper. The informal concept review meeting was proper. GenPsych was not obligated to seek review or ordinance interpretation prior to contacting the planning board. Condition #20 of the resolution, limiting the operation of the facility regarding size, services rendered, and visitation, was not a ultra vires act by the board. The site plan and variance approvals, not having been challenged, except for condition 20, are affirmed. The fifth count of the complaint, challenging § 411A to the extent that it contains negative criteria language voided by Lincoln Heights, is struck down but this action does not affect the affirmance of the conditional use, variance and site-plan approvals under the valid provisions of § 411B. [Decided June 13, 2013.]

26-2-0420 Waste Management of New Jersey Inc. v. Newark Zoning Bd. of Adjustment, App. Div. (per curiam) (12 pp.) Defendant city appeals from the order of the Law Division declaring that portions of the city’s land-use ordinances and redevelopment plan, on which basis the board denied plaintiff’s application to construct a building that would accept and process regulated medical waste, were pre-empted by the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -174 (SWMA), and the Comprehensive Regulated Medical Waste Management Act, N.J.S.A. 13:1E-48.1 to -48.28 (CRMWMA), to the extent that they pertain to the licensing, location and operation of plaintiff’s proposed medical waste processing facility. Looking to the language of the statutes, the panel affirms, concluding that given the comprehensive nature of the CRMWMA and that the DEP can authorize facility construction in a municipality without that municipality’s consent, the Legislature clearly intended to include facility siting within those areas superseded. [Decided June 25, 2013.]

LANDLORD/TENANT LAW

27-2-0374 1255-1257 Madison Avenue v. Mazaj Restaurant, App. Div. (per curiam) (4 pp.) Finding that plaintiff-landlord’s initiation of a second summary dispossess action is an attempt to subvert jurisdiction over the issues in controversy, which were then pending on appeal, the panel affirms the trial court’s dismissal of the complaint in this action. However, in light of the remand of the earlier action, the panel accords both sides the opportunity to pursue their respective claims in the Law Division. [Decided June 21, 2013.]

LEGAL PROFESSION

04-2-0422 Spadaccini v. Main, App. Div. (per curiam) (4 pp.) Plaintiff Dino Spadaccini and defendant Kevin Main practiced law as Spadaccini Main from April 2002 through July 2010. Main and his wife, defendant Lisa Marin Main (Marin Main), purchased real property in 2002. The July 2010 transfer of this property from Main and Marin Main, jointly, to Marin Main alone, forms the basis for Spadaccini’s filing of the complaint in this matter for, among other things, relief based on the Uniform Fraudulent Transfer Act (UFTA). In light of the resolution of all aspects of defendants’ marital relationship in a divorce action, the trial judge granted summary judgment in favor of Marin Main. The UFTA action brought by plaintiff against Main and Marin Main has its genesis in malpractice liabilities incurred by Spadaccini Main. In this action, plaintiff asserted that Main avoided his responsibility for his share of the firm’s losses by transferring his interest in the property owned by Main and his wife but conveyed, in the interim, to Marin Main alone. The appellate panel affirms, agreeing with the essence of the trial judge’s disposition of the summary judgment motion. The panel discerns from the judge’s decision that he held that what may have been fraudulently conveyed — Main’s share of the proceeds resulting from the sale of the property — was restored to Main and, in the context of the divorce action, was placed in escrow and subjected to plaintiff’s claim for satisfaction of its claims against Main. Plaintiff was entitled to no greater relief than that. [Decided June 25, 2013.]

LEGAL PROFESSION — ATTORNEY FEE RECOVERY

04-4-0423 Gelber v. Heck, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (11 pp.) Before the court is what is denominated as a motion in aid of litigant’s rights supplementing an award of attorney fees brought by plaintiff’s attorney, Donald Burke, on behalf of plaintiff, Steven Gelber. Plaintiff also, in effect, brings a motion for reconsideration, although not so named. Burke brings this motion based on the court’s order awarding plaintiff $12,000 in attorney fees as the prevailing party in the underlying Open Public Records Act matter. Plaintiff’s motion in aid of litigant’s rights must be denied as moot as plaintiff has been paid the $12,000 pursuant to the court’s order. Although plaintiff did not receive payment within the terms of the order — plaintiff received payment within 37 days instead of 30 days — the court is not inclined to provide further relief as this delay was de minimis and adequately explained. Second, plaintiff shall not be awarded additional “supplemental” fees as his motion for reconsideration is untimely. Plaintiff failed to make an application within the “unrelaxable” 20 days following receipt of the order as set forth in R. 4:49-2. Finally, even if plaintiff’s motion for reconsideration was timely, it would be denied substantively as it fails to meet the standard pursuant to R. 4:49, and in general is inappropriate given the initial award, Burke’s lack of candor, and the overall intention of OPRA’s fee-shifting provisions. [Decided June 21, 2013.]

MEDICAL MALPRACTICE

29-2-0424 Parker v. Batarseh, App. Div. (per curiam) (25 pp.) In this medical-malpractice case, plaintiffs appeal from three orders dismissing the complaint against defendants for failure to comply with the Affidavit of Merit statute. It is undisputed that plaintiffs failed to serve a timely affidavit of merit (AOM) on the doctor-defendants, except for Cornwell. Plaintiffs’ counsel, who presents herself as a solo practitioner, certified that she did not serve timely AOMs due to her own injuries that required two hospitalizations and interrupted her ability to work for eight weeks. The panel rejects the application of estoppel and laches as to the doctor-defendants except Cornwell, finding that they acted diligently by filing their motions to dismiss timely and did not engage in conduct causing plaintiffs to change their position to their detriment. It also concludes that plaintiffs have demonstrated substantial compliance with the Affidavit of Merit statute by sufficiently demonstrating lack of prejudice, a series of steps taken to comply with the AMS, a general compliance with the purpose of the AMS, reasonable notice of the claims, a reasonable explanation regarding why there was not strict compliance with the AMS, and serving AOMs from qualified experts. It therefore reverses the orders as to the individual doctors. [Decided June 25, 2013.]

PUBLIC UTILITIES

37-2-0425 Chickara v. Jersey Central Power & Light, App. Div. (per curiam) (4 pp.) In this action alleging that defendant was negligent in terminating electric service to the deceased, who required the use of an electrical breathing device and who died a few days after the power was turned off, the panel affirms the trial court’s denial, without prejudice, of defendant’s motion to dismiss or transfer the matter to the Board of Public Utilities. The panel concludes that the judge properly held that because some aspect of the suit may fall within the BU’s primary jurisdiction does not necessarily mean that the BPU has exclusive jurisdiction over all issues and that there was no abuse of discretion where the judge indicated that she will again consider whether any such issue should be referred to the BPU after further development of the record. [Decided June 25, 2013.]

RESIDENTIAL AND COMMERCIAL REAL ESTATE

34-4-0435 Deutsche Bank National Trust Company v. Miller, Ch. Div. — Bergen Co. (Escala, J.S.C.) (8 pp.) Plaintiff Deutsche Bank seeks to foreclose defendants’ mortgage. Defendant James Miller asserts that plaintiff and he have modified the underlying note and that he is prepared to bring current the note as modified. Plaintiff claims there was no modification. As of June 2009, Miller began negotiating a loan modification when he was notified by Ocwen Loan Servicing that it had taken over the servicing of his loan from Saxon Mortgage Services Inc. Ocwen sent Miller a letter stating: “We are unable to offer you a modification because: Unfortunately, the owner of your loan does not allow modifications.” This letter was delivered in person to Miller at a Sept. 6, 2012, court conference and is the first time that he was advised of the supposed impediment to the modification of the loan. The issue is whether the agent (Saxon) exceeded its authority under the agency agreement with the principal (Deutsche Bank). Notwithstanding that the servicing agreement contained a prohibition against modification of the interest rate, the Millers relied on the agent’s apparent authority to act with respect to the modification over an extensive time period. The court concludes that the principal has placed the agent in a situation that a person of ordinary prudence, conversant with business uses, and the nature of the particular business, is justified in presuming that such agent has the authority to perform the particular act in question — here, modifying the terms of the mortgage loan, including the interest rate. Plaintiff’s delay in asserting its position is unreasonable and inexcusable. The court finds there was a modification and accordingly dismisses the complaint. [Decided June 20, 2013.]

34-2-0436 Jacobs v. Fannie Mae, App. Div. (per curiam) (7 pp.) Plaintiff Christopher Jacobs appeals from a Chancery Division order denying his motion for entry of a default judgment and dismissing his complaint in a quiet title action. In 2005, Jacobs borrowed $272,650 from Ivanhoe Financial Inc., which was secured by a mortgage on his property. Defendant Mortgage Electronic Registration Systems Inc. (MERS) was listed as the nominee on the mortgage. MERS assigned the mortgage to defendant Federal National Mortgage Association (Fannie Mae), which designated defendant Seterus Inc. as its loan servicer. In 2011, Jacobs stopped making his mortgage payments. Jacobs wrote letters to Fannie Mae, MERS, and Seterus demanding that they provide documentation proving that Fannie Mae was the current holder of the mortgage loan. Jacobs argues that the trial judge erred in dismissing the complaint because the facts and reasonable inferences therefrom demonstrate a cloud on his title exists. Jacobs also argues that defendants did not have “standing” to contest the quiet title action, since their failure to adequately respond to his correspondence confirmed they had no property interest in the mortgage. The appellate panel disagrees. Jacobs acknowledges that he obtained a loan secured by the mortgage and note and does not allege that he paid off the note and extinguished the mortgage lien. There is no basis to find that Jacobs’ one-sided “notices of agreement” created a doubt on his chain of title. Therefore, the judge correctly dismissed the complaint. [Decided June 26, 2013.]

RESIDENTIAL AND COMMERCIAL REAL ESTATE — ATTORNEY FEES

34-2-0375 Lewandowski v. Hi-Tech Homes Inc., App. Div. (per curiam) (22 pp.) Plaintiffs are homeowners who purchased their homes from Hi-Tech Homes Inc. a home building company owned and operated by Terrence Moeller. Although plaintiffs received deeds and purchased title insurance from defendant, clear title was never conveyed. Subsequently, Freedom Title & Abstract Inc. conducted a refinance closing between Hi-Tech and TEB Associates (TEB) using plaintiffs’ properties to secure a $900,000 loan. Freedom Title performed a title search and, on the closing date, issued a title commitment to TEB without disclosing plaintiffs’ ownership interests in the properties. Moeller defaulted on the loan, causing TEB to foreclose on Hi-Tech’s mortgage. Plaintiffs filed a complaint alleging fraud and related counts. Due to a bankruptcy filing, plaintiffs sought voluntary dismissal of their Law Division complaint. Plaintiffs appeal from the trial court order voluntarily dismissing their complaint without prejudice and the award of $24,418.20 in counsel fees in connection with the action. The appellate panel affirms the award of counsel fees but vacates the amount of the award because plaintiffs were not given a meaningful opportunity to challenge the amount and reasonableness of the counsel fees sought, and the court failed to articulate the reasons for the amount of the award. [Decided June 21, 2013.]

TAXATION

35-5-0376 Advanced Stor Edge v. Township of Edison, Tax Ct. (Sundar, J.T.C.) (7 pp.) This is the court’s decision in connection with plaintiff’s application (by motion) for relief under the Freeze Act, and requesting entry of a judgment for tax year 2012 based on a final judgment for tax year 2011, which was entered pursuant to the parties’ stipulation of settlement. Defendant Edison opposes the relief on grounds it could not, and did not, consent to a reduction of the assessment for tax year 2012 without governing body approval, in furtherance of which it crossed out the paragraph in the stipulation in which the parties had agreed to set the 2012 assessment at the same amount as the agreed-on reduced assessment for tax year 2011. The court finds that the township’s inability to settle tax year 2012 at a reduced assessment, and plaintiff’s agreement in this regard, does not equate to an affirmative waiver of the Freeze Act application by plaintiff ­— the only party that can exercise a waiver. The township’s protection of its interests, namely, avoiding an unauthorized settlement, cannot defeat the statutory protection afforded to plaintiff. Therefore, plaintiff’s application for relief under the Freeze Act for tax year 2012 is granted. [Decided June 12, 2013.]

35-5-0377 Fallas v. Long Branch, Tax Court (Sundar, J.T.C.) (10 pp.) Plaintiff challenges the 2012 property tax assessment on its property in Long Branch. The court accepts two of the three comparable sales put forth by plaintiff’s expert as credible indicators of the subject property’s value, and accepts the expert’s adjustments for room count, gross living area and amenities, and rejecting his adjustment for beach front and beach view in one of the comparables, and accepting 50 percent of his adjustments for ocean view and superior condition in the other comparable, the court finds that the subject property’s value is $1.3 million. Since the assessed-to-true value ratio is within the upper limit of the Chapter 123 ratio, the court affirms the assessment. [Filed June 3, 2013.]

35-5-0378 Silverman v. Allenhurst, Tax Ct. (Sundar, J.T.C.) (17 pp.) Plaintiff challenges the 2012 property tax assessment on its property in Allenhurst. The court finds that the seven comparable sales used by both experts are reliable indicators of the property’s value because all but one are in the borough, the other in a competitive neighboring town, and their sales dates are in reasonable proximity to the assessment date. After accepting the experts’ adjustments, which the court finds reasonable and persuasive, and rejecting the adjustments made by the borough’s expert for location and effective age, and rejecting plaintiffs’ expert’s additional adjustment for bedroom count and market adjustments for 2010, the court finds the property’s value to be $2.35 million. Since the assessed-to-true value ratio exceeds 100 percent, the court applies the Chapter 123 ratio and reduces the assessment to $2,288,665, rounded to $2.29 million. [Decided June 7, 2013.]

35-5-0379 Victor H. Dabah Personal Residence Trust v. Deal, Tax Ct. (Sundar, J.T.C.) (20 pp.) Plaintiff challenges the 2012 property tax assessment on its property in Deal. The court finds that the six comparable sales used by both parties’ experts are reliable indicators of the subject’s value because all are in the borough and their sale dates are in reasonable proximity to the assessment date. After accepting the experts’ adjustments, which the court finds reasonable and persuasive, rejecting the adjustments made by plaintiff’s expert for market conditions, age, partial ocean view, and bedroom count, rejecting the borough’s expert’s adjustment for location and effective age, and rejecting both experts’ adjustment for fireplace count, the court finds the property’s value to be $3.35 million. Since the assessed-to-true value ration exceeds 100 percent, the Chapter 123 ratio reduces the assessment to $3,312,480, rounded to $3,313,000. [Decided June 7, 2013.]

35-5-0403 Al-Yousefy v. Paramus, Tax Ct. (Nugent, J.T.C.) (24 pp.) Plaintiff challenges the 2009 and 2010 tax assessments on his property. Rejecting plaintiff’s claims that the assessor’s bias against him resulted in his home being assessed disproportionately higher than the others in the neighborhood, the court weighs the evidence of value as presented by the parties’ experts, the assessor and plaintiff and concludes that, using the sales comparison approach, neither party proved by a preponderance of the evidence that the assessments are incorrect and that relief is warranted. The assessments are affirmed. [Filed June 6, 2013.]

TORTS — DEFAMATION

36-2-0437 Solomon v. Gannett Company Inc., App. Div. (per curiam) (6 pp.) Plaintiff Brian Solomon appeals from the dismissal of his complaint for defamation and resulting emotional distress. The Law Division granted defendant Gannett Company Inc.’s motion to dismiss based on plaintiff’s failure to file within the applicable one-year statute of limitations. Plaintiff contends that Gannett made “slanderous and untrue statements” in an article published on Dec. 4, 2008. The court rejected plaintiff’s argument that Gannett republished the article when plaintiff accessed it on March 9, 2011. The court determined that New Jersey’s reliance on the single-publication rule for Internet publications meant that plaintiff’s cause of action arose on the date the article was first published. Because plaintiff’s complaint was filed well after the one-year limitations period for his defamation action, the court dismissed the complaint without reaching the merits. The appellate panel agrees that plaintiff’s complaint is time-barred and affirms. The panel rejects plaintiff’s argument that by changing the ads on the site to reach a new or broader audience, Gannett republished the article. [Decided June 26, 2013.]

TORTS — PERSONAL INJURY

36-2-0359 Giordano v. Hillsdale Public Library, App. Div. (per curiam) (11 pp.) Plaintiff appeals from the Law Division’s summary judgment dismissal of her slip-and-fall negligence complaint against defendants Hillsdale and Hillsdale Public Library pursuant to the New Jersey Tort Claims Act (TCA). According to plaintiff, as she approached the library building, she slipped and fell on a curb cut in the sidewalk in the rear of the library. The barrier-free curb cut is part of a walkway from the parking lot to provide pedestrians with access to the sidewalk and rear entrance to the library. On appeal, plaintiff argues that summary judgment was improper because there were genuine issues of material fact as to the existence of a dangerous condition, defendants’ constructive notice thereof, and whether their failure to take action was palpably unreasonable. The appellate panel disagrees and concludes that the area of plaintiff’s fall did not constitute a “dangerous condition” within the meaning of the TCA. [Decided June 20, 2013.]

36-2-0438 Termyna v. Jonas Salk Middle School, App. Div. (per curiam) (9 pp.) Plaintiff Annmarie Termyna appeals from summary judgment in favor of Jonas Salk Middle School (JSMS) and Old Bridge Township Board of Education (BOE) entered on a judgment of no cause in favor of DeFino Contracting, following a jury verdict and an order denying a new trial. Plaintiff argues that she suffered a significant permanent disability within the meaning of the New Jersey Tort Claims Act and that the verdict was against the weight of the evidence and based on an impermissible argument by defense counsel. Plaintiff, who was employed as a school bus driver, fell into a pothole in the parking lot of JSMS. The hole had been created by the relocation of the utility pole after construction of a parking lot expansion by DeFino ended. Jersey Central Power and Light (JCP&L) moved the pole. The appellate panel agrees with the motion judge’s analysis of the extent of plaintiff’s injuries and his grant of summary judgment under the act. Plaintiff argues that the verdict was against the weight of the evidence because DeFino improperly blamed JCP&L and the BOE for not repairing the hole in the parking lot. DeFino argued that it was not its responsibility to repair the hole made by the removal of the utility pole and that, in fact, someone else must have filled in the three-foot-deep hole leaving a dangerous two-inch depression. This argument is entirely consistent with the evidence. Plaintiff has not sustained her heavy burden to demonstrate that the verdict was a miscarriage of justice. [Decided June 26, 2013.]

FEDERAL COURT CASES

BANKRUPTCY

42-8-0405 In re Jones, Third Cir. (per curiam) (3 pp.) Appellant Jean Jones, proceeding pro se, appeals from the district court’s dismissal of her appeal from a decision of the bankruptcy court for the district of New Jersey. On March 11, 2009, the bankruptcy court issued a ruling denying Jones’ motion for accounting. The bankruptcy court denied Jones’ motion for reconsideration on Oct. 29, 2009. Jones was discharged from bankruptcy on March 2, 2012, and a final decree was entered on March 5, 2012, closing the case. On June 6, 2012, Jones filed a notice of appeal of the bankruptcy court’s order denying her motion for reconsideration. Jones argued that the bankruptcy judge engaged in fraud by ruling against her. Finding no error in the bankruptcy court’s ruling, and no evidence of fraud, the district court dismissed Jones’ case. Assuming the bankruptcy court’s Oct. 29, 2009, order was interlocutory, Jones had 14 days from the entry of final judgment to seek review of that order. Jones did not file her notice of appeal until more than three months after the final judgment was entered. Her notice of appeal was therefore untimely. Because the district court did not have jurisdiction to review the bankruptcy court’s order, the circuit panel here is also precluded from reviewing the merits of the order and affirms the judgment dismissing Jones’ case. [Filed May 24, 2013.]

CIVIL PROCEDURE

07-7-0426 Heine v. City of Garfield, U.S. Dist. Ct. (Mannion, U.S.M.J.) (7 pp.) Plaintiff Ellen Heine filed a motion to amend her pleading to file a third amended complaint in this civil rights action. Plaintiff sought to add several additional plaintiffs against Garfield. Defendant opposes the amendment as futile and because plaintiff is not an attorney authorized to file for others. The court finds the proposed complaint in this matter requires repleading based on Rule 10(b). Further, there is no short and plain statement of claims showing that the putative plaintiffs are entitled to relief as required by Rule 8(a)(2). Instead, the putative plaintiffs appear to be witnesses to the claims asserted by plaintiff Heine. The court denies plaintiff’s motion to amend her pleading. [Filed May 29, 2013.]

07-7-0427 Smalls v. Riviera Towers Corp., U.S. Dist. Ct. (Chesler, U.S.D.J.) (2 pp.) Prior to the conclusion of briefing on defendants’ pending motions to dismiss, pro se plaintiff attempted to file second and third amended complaints adding additional defendants. Because, having already amended the complaint once, plaintiff is ineligible to amend again without first seeking defendants’ consent or requesting leave of the court, which she has failed to do, both the second amended complaint and the third amended complaint are stricken. [Filed June 10, 2013.]

07-8-0440 McHale v. Kelly, Third Cir. (per curiam) (8 pp.) Robert and Delilah McHale, husband and wife, appeal pro se from the order of the district court dismissing their complaint against Ralph Kelly, an attorney who represented them in a personal-injury matter. The McHales filed their first action pro se against Kelly in 2011, alleging that he committed malpractice in connection with a uninsured-motorist claim, Robert’s workers’ compensation coverage, and a New York action. The district court determined that Pennsylvania’s two-year statute of limitations applied and dismissed the complaint on statute-of-limitations grounds on Oct. 14, 2011. The complaint here asserts the three claims plaintiffs sought to assert in their proposed amended complaint in the first action, and the underlying allegations are materially identical. The district court agreed that the McHales’ claim for fraud is barred by res judicata, but concluded that their other claims are governed by Pennsylvania law and dismissed them on statute-of-limitations grounds. The McHales appeal pro se. Most of the McHales’ arguments on appeal are addressed to the dismissal of their first action. The circuit panel lacks jurisdiction to review the dismissal of the McHales’ first action because the McHales did not appeal and the jurisdictional period for doing so has expired. The judgment in that action is final for res judicata purposes. The panel also affirms the dismissal of the McHales’ second and third claims as untimely under Pennsylvania law. [Filed May 30, 2013.]

CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS

07-8-0384 Arpaio v. Dupre, Third Cir. (Rendell, U.S.C.J.) (13 pp.) Plaintiff Amber Arpaio, a New Jersey resident, filed a complaint in the district court for the district of New Jersey seeking compensatory and punitive damages under New Jersey law for invasion of privacy, misappropriation of her name, unauthorized use of her name for advertisement, defamation and conspiracy. Arpaio named as defendants Mantra Films Inc., an Oklahoma corporation with its principal place of business in California, MRA Holding, an Oklahoma limited liability company with its principal place of business in California, and Joseph Francis, a California resident. Arpaio also named Ashley Dupre, a New York resident, as a defendant. According to Arpaio, defendants produce videos and DVDs under the title “Girls Gone Wild.” The basis of Arpaio’s claims was that Dupre falsely represented herself as Arpaio in a sexually provocative video. Here, the circuit panel vacates the district court’s order denying defendants’ motion to vacate the default judgment entered against them. Plaintiff alleges that Francis conducts business in New Jersey, targets New Jersey customers, and promotes and sells Girls Gone Wild products through their website. However, plaintiff has failed to connect Francis to these acts. The fact that Girls Gone Wild products are sold in New Jersey does not necessarily mean that Francis has sufficient contacts in New Jersey to support general jurisdiction. Although Internet presence can be sufficient to confer jurisdiction, that presence must be purposeful. [Filed May 20, 2013.]

07-7-0407 Ortiz v. K-Hovnanian Homes Inc., U.S. Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Plaintiffs brought this action to recover damages for personal injuries against defendants K-Hovnanian Homes Inc., d/b/a K-Hovnanian Four Seasons (Hovnanian entity), and Anchor Wood Framing Corp. (AWF). Plaintiffs, pursuant to their own allegations and the court’s own research, are deemed to be citizens of Pennsylvania. Plaintiffs assert that the Hovnanian entity “is a corporation who regularly conducts business in the state of New Jersey at the [New Jersey] address [listed on the Complaint]”; (2) AWF “is a New Jersey Corporation who regularly conducts business in the state of New Jersey at the [New Jersey] address [listed on the Complaint]”; and (3) “Defendants … are corporations who are registered to do business in New Jersey.” Assuming that the Hovnanian entity and AWF are corporations, plaintiffs have failed to allege the states in which each defendant is incorporated, and has “its principal place of business,” as opposed to an address where each defendant regularly conducts business. Because plaintiffs have failed to show that complete diversity of citizenship exists, the court dismisses their complaint without prejudice. [Filed May 28, 2013.]

07-7-0428 The Travelers Indemnity Company of America v. Coronation Sheet Metal Co. Inc., U.S. Dist. Ct. (Linares, U.S.D.J.) (5 pp.) The Travelers Indemnity Company of America is an insurance company that is incorporated and has its principal place of business in Connecticut. It insured property in Newark belonging to the law firm of Genova, Bums & Giantomasi, plaintiff’s subrogor. Defendant Coronation Sheet Metal Co. Inc. is a New Jersey corporation with its principal place of business in Union. Defendant serviced the property’s HVAC system; thereafter, pipes burst causing water damage. Plaintiff made payments to or on behalf of Genova in excess of $75,000. Plaintiff filed a complaint against defendant as subrogee of Genova, claiming the water damage to the property resulted from defendant’s negligence. Plaintiff invokes the diversity jurisdiction statute as the basis for federal subject-matter jurisdiction. Defendant filed a motion to dismiss the complaint based on lack of jurisdiction. There is no dispute that the amount in controversy exceeds $75,000 and there is diversity of citizenship between Travelers and Coronation. Nonetheless, defendant argues there is no diversity of citizenship because plaintiff’s rights are no greater than those of Genova, which does business in New Jersey. This argument lacks merit. As Genova’s subrogee, plaintiff is entitled to seek recovery in its own name without adding any other party. Although Genova is plaintiffs subrogor, it is not itself a party to this litigation. Thus, Genova’s citizenship is irrelevant to determining whether diversity jurisdiction exists. The court finds federal subject-matter jurisdiction exists and denies defendant’s motion to dismiss. [Filed May 30, 2013.]

CIVIL RIGHTS

46-7-0385 Pratt v. The Port Authority of New York and New Jersey, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (13 pp.) Plaintiff and his wife, Carla, married in 2007 but were separated in 2008. They are in the process of obtaining a divorce. On Oct. 14, 2010, Carla informed plaintiff that she had lost her nametag for her job at the Hyatt Regency Jersey City. Plaintiff told Carla that he would go with her to the Hyatt Regency to speak with her boss about the lost nametag. Carla told plaintiff that it would not be necessary for him to go to her work. When plaintiff followed Carla into a train station, she asked an officer to tell plaintiff that he was not permitted to follow her to work. While Officer Pimienta was on the phone with his supervisor, plaintiff walked away, against the officer’s instructions. Officer Pimienta then searched plaintiff and handcuffed him. Plaintiff filed a complaint alleging claims against Officer Pimienta, The Port Authority of New York and New Jersey and the Port Authority Police Department for unreasonable use of force to effect an arrest and false arrest and common-law battery. The court grants defendants’ motion for summary judgment as to plaintiff’s federal claims, finding Pimienta is entitled to qualified immunity. To the extent that plaintiff’s complaint raises state law claims, the court declines to assert supplemental jurisdiction over them. [Filed May 20, 2013.]

46-7-0408 Artis v. McCann, U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Plaintiff, a civilly committed patient at the Special Treatment Unit in Avenel, filed this 42 U.S.C. § 1983 action against several corrections officers for violation of his constitutional rights. The court grants the motion to dismiss the complaint of use of excessive force against defendant McCann as the only allegation against her is that she “shoved” plaintiff. It denies the motion to dismiss this claim filed by the other defendants, finding that, construing all inferences in plaintiff’s favor, an issue of fact exists as to whether they used excessive force in the incident involving plaintiff. Defendants’ motion for summary judgment finding that plaintiff is not entitled to compensatory damages is denied since plaintiff is not a prisoner and 42 U.S.C. § 1997e(e) therefore is not applicable. The motion seeking a finding that he is not entitled to punitive damages is denied at this time because plaintiff’s deposition testimony and other evidence would permit a jury to find that defendants acted with the requisite malice, intent, and evil thought to award punitive damages and there are a large number of disputed facts that remain to be decided. [Filed June 10, 2013.]

CONSUMER PROTECTION

09-7-0366 Schwartz v. Avis Rent A Car System, U.S. Dist. Ct. (Hammer, U.S.M.J.) (11 pp.) Plaintiff filed a motion for leave to file a third amended complaint, seeking to add Avis Budget Group Inc. (ABG), the parent company of defendant Avis Rent A Car Systems, as an additional defendant for violations of the New Jersey Consumer Fraud Act. Plaintiff filed a complaint, on behalf of himself and others similarly situated, for damages and injunctive relief, against Avis for allegedly charging him and class members hidden surcharges for frequent-flyer miles or rewards points earned from Avis’ travel partners in connection with their rental-car agreements. The court finds that plaintiff acted with diligence in seeking leave to amend to add ABG. Defendant included ABG employees in its Rule 26 disclosures. Because discovery was delayed, the depositions were delayed and it was only during those depositions that plaintiff learned of ABG’s oversight and management of the Avis.com website and the Avis frequent traveler program. The court finds that plaintiff has shown “good cause” for filing an untimely motion to amend. Because plaintiff is alleging that ABG, as well as Avis, had control over the website, and the content and omissions of the website give rise to the alleged fraud, plaintiff’s allegations against ABG are not futile. Moreover, adding ABG will not require more discovery related to class certification. The court finds that plaintiff has satisfied Rule 15 and should be granted leave to file the proposed third amended complaint. [Filed May 20, 2013.]

09-7-0386 Tremco Canada Division, RPM Canada v. Dartronics Inc., U.S. Dist. Ct. (Chelser, U.S.D.J.) (7 pp.) This action asserting claims for breach of contract and consumer fraud arises out of contract under which defendant was to supply plaintiff with an inkjet printing system that conformed to specifications in the contract. Defendant moves to dismiss the consumer fraud count in the first amended complaint. The court grants the motion because the system is a specially designed product and therefore not “merchandise” under the Consumer Fraud Act; the complaint fails to allege that defendant engaged in any activity in violation of the statute; and the claim fails to meet the pleading standard of Rule 9(b). [Filed June 4, 2013.]

09-7-0387 Physicians Healthsource Inc. v. Janssen Pharmaceuticals Inc., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (9 pp.) In this action alleging that two faxes sent by defendants regarding the reclassification of Levaquin for insurance purposes was a commercial advertisement in violation of the Telephone Consumer Protection Act, the court held that the faxes were informational only and dismissed the complaint. Plaintiff moves for reconsideration. The court denies the motion, finding that plaintiff is seeking to assert two new allegations, which are not evidence for reconsideration purposes, and that it does not allege that the information was not available at the time of the original decision and does not ask for the correction of errors of law or fact on which the earlier ruling was based, and thus plaintiff has not raised any basis for reconsideration. The court also denies plaintiff’s alternative motion to amend, finding that amending the complaint to include allegations regarding the lack of a prior business relationship between the parties would not change the result as the court did not base its prior opinion on the presence of a business relationship. Plaintiff is permitted to amend its complaint regarding its assertion that there had been no recent reclassification of Levaquin and thus no new information was necessary at the time of the faxes. [Filed June 6, 2013.]

CONTRACTS

11-7-0388 Jackson Hewitt Inc. v. DJSG Utah Tax Service, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Defendants have filed a motion for relief from the court’s order imposing sanctions on them for their failure to adhere to a prior court order requiring them to adhere to the post-termination obligations in their franchise agreements and issuing a permanent injunction enjoining them and those operating in concert with them from operating competing tax preparation businesses in their former Jackson Hewitt franchise territories for two years from the date of the order. They argue that the two years should run from the date Jackson Hewitt terminated their franchise agreements. The court denies the motion, finding that Rule 60(b)(6) relief is available only in cases evincing extraordinary circumstances and that such circumstances do not exist here. Rather, the facts warranted an extension of the covenant not to compete beyond the terms of the franchise agreements since defendants actively engaged in competition in violation of the franchise agreements and the court’s injunction. Further, defendants’ request for relief from Paragraph 6 of the prior order fails because the court need not consider the motion while an appeal of the same order is on appeal. [Filed June 5, 2013.]

11-7-0389 Lutsky v. Monmouth Marine Engines Inc., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (8 pp.) Plaintiff purchased a marine engine for his boat from defendant Mercury Marine. After the engine failed to perform properly, Plaintiff sought to exercise his right to have the engine repaired pursuant to a one-year warranty provided by Mercury Marine. Mercury Marine outsourced its repair services to defendant Monmouth Marine Engines (MM Engines). While plaintiff’s vessel was being serviced by MM Engines, Superstorm Sandy occurred and plaintiff’s vessel was damaged. Plaintiff brings suit against Mercury Marine and MM Engines alleging claims for (1) breach of contract and/or warranty, including the warranty of workmanlike performance, (2) negligence, and (3) conversion. Plaintiff is suing Mercury Marine solely on the basis of vicarious liability for MM Engines’ conduct. The complaint is devoid of any facts that permit the court to construe plaintiff’s allegations as asserting an agency relationship between the defendants. Thus, plaintiff’s reliance on an agency relationship for its claims against Mercury Marine is misplaced. As to MM Engines, plaintiff alleges sufficient facts to permit an inference that he is entitled to relief on his breach-of-contract claim. Plaintiff’s alleged facts also demonstrate a plausible entitlement to relief for negligence. However, plaintiff’s claim for conversion cannot stand where plaintiff’s vessel was not taken without authorization, but was given to MM Engines to be repaired. Mercury Marine’s motion to dismiss is granted and MM Engines’ motion to dismiss is granted in part and denied in part. [Filed May 22, 2013.]

11-7-0390 Scholar Intelligent Solutions Inc. v. The New Jersey Eye Center P.A., U.S. Dist. Ct. (Chesler, U.S.D.J.) (8 pp.) This case arises out of a commercial dispute between a group of laser eye surgery centers and a vendor who had agreed, among other things, to provide advertising, production, media buying, and call center support to the centers. Plaintiff complains that it was fraudulently induced into providing its services at a discount; that it is owed money on services rendered; and that defendants unlawfully terminated the contract without cause. Defendants deny those allegations and dispute that a contract existed. The corporate defendants have counterclaimed and filed a third-party complaint alleging that after the parties’ business relationship began to sour, defendants engaged in a pattern of hostile and threatening behavior. The court denies defendants’ motion to dismiss the three contract claims, finding that plaintiff has alleged a number of specific facts to support the claim and that the federal rules do not require a plaintiff to attach to the complaint a copy of the contract sued on. Their motion for summary judgment on the breach-of-contract claim is dismissed as premature because discovery has not even begun. The fraud claim is dismissed because it fails to meet Rule 9(b)’s heightened pleading standard. The court denies defendants’ motion for a preliminary injunction to prevent plaintiff from releasing their confidential patient leads because they have failed to establish any likelihood that the feared misconduct has occurred or will occur in the future. [Filed June 5, 2013.]

CRIMINAL LAW

14-7-0412 United States v. Roque, U.S. Dist. Ct. (McNulty, U.S.D.J.) (11 pp.) Defendants, the mayor of West New York and his son, are charged with seeking to disable a website critical of the mayor’s administration and to harass persons associated with the website. The current motions are directed to the sufficiency of the indictment. The court finds that, inter alia, the allegations encompass a set of facts that, if proved, would make out a violation of the Computer Fraud and Abuse Act that would fall within the Commerce Clause power; that the indictment has sufficiently pleaded the charges of conspiracy to gain access to Hotmail and Facebook to damage protected computers and to harass and of unauthorized access to Hotmail to damage protected computers and to harass; and the indictment is not duplicitous. The court exercises its discretion to require a bill of particulars as to count 2 of the indictment, ordering the government to prepare a bill of particulars (a) listing each act of unauthorized access that is charged substantively in count 2 and, as to each, (b) stating whether the government contends that defendant(s) did it in furtherance of a CFAA “damage” offense; (c) stating whether the government contends that defendant(s) did it in furtherance of state-law “harassment” offense. The court denies defendant Joseph Roque’s motion to strike the “a/k/a” names in the caption of the indictment. [Filed June 6, 2013.]

EDUCATION

16-8-0409 Gillespie v. Janey, Third Cir. (per curiam) (5 pp.) Pro se plaintiff appeals from the district court’s denial of her motion to vacate the judgment dismissing this action alleging various violations of her constitutional, civil, and statutory rights arising from tenure charges filed against her by the Newark school district. The Third Circuit affirms, finding that plaintiff cannot meet the demanding standard of proof required to show fraud on the court as the district court dismissed the complaint on the grounds that the claims were either time-barred or premature, and the allegedly fraudulent documents cited by plaintiff had no bearing on the propriety of that ruling. Nor is plaintiff entitled to relief on the ground that the judgment is void since the court had jurisdiction over the complaint because plaintiff included claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act and alleged violations of her constitutional rights; her claim that the judgment had been voided by certain state Appellate Division opinions is an attack on the court’s reasoning, not its authority to render a judgment; and many of her contentions are the same arguments that were rejected when her complaint was dismissed. The court denies defendants’ motion for damages and costs pursuant to Rule 38. [Filed June 7, 2013.]

EDUCATION — JURISDICTION

16-7-0429 Drexel University v. Obado, U.S. Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) Plaintiff, an educational institution located in Pennsylvania, filed a state court action against defendant in connection with a student loan. That action resulted in a judgment against defendant that was affirmed on appeal and certification was denied. Pro se defendant now moves to remove the matter to federal court, claiming a denial of his right to equal protection. The court remands the matter to state court, finding that under the Rooker-Feldman doctrine, it lacks subject-matter jurisdiction over this matter which is, in essence, a prohibited appeal of the state court judgment. [Filed June 10, 2013.]

ENVIRONMENTAL LAW

17-7-0430 EPEC Polymers Inc. v. NL Industries, U.S. Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff EPEC Polymers Inc. owns land in Woodbridge Township, along the shore of the Raritan River (the EPEC site). The EPEC site was used for the production of chemical products by EPEC and its predecessors in interest. This lawsuit concerns the “Central Wetlands,” which cover approximately 45 acres of the EPEC site. Across the river, within the borough of Sayreville, lies property formerly owned by defendant NL Industries and its predecessors that was also used for production of chemical products. EPEC predecessor entered into an agreement with the Army Corps for the placement of dredge spoils removed from the Raritan River on the Central Wetlands. Plaintiff contends that the source of the radiological contamination is the radiological materials discharged by defendant into the Raritan River and removed to the Central Wetlands by the dredging process. Plaintiff’s complaint seeks to hold defendant liable. Defendant’s motion to dismiss is granted with prejudice with respect to plaintiff’s common-law trespass count. Plaintiff’s common-law private nuisance claim states a prima facie cause of action. Plaintiff’s count asserting CERCLA cost recovery pursuant to 42 U.S.C. § 9607(a), based on both owner/operator and arranger liability, states a prima facie cause of action. Plaintiff’s CERCLA contribution claim pursuant to 42 U.S.C. § 9613(f), is dismissed with prejudice. Plaintiff’s CERCLA declaratory judgment count states a prima facie cause of action. Plaintiff’s common-law indemnification claim is dismissed without prejudice. [Filed May 28, 2013.]

HEALTH LAW

22-7-0391 Montvale Surgical Center v. Aetna Insurance Company, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (13 pp.) Plaintiff Montvale Surgical Center (MSC) is an outpatient ambulatory surgical center. Defendant Aetna served as a benefit provider of the group health benefit plan for Belle Associates, the employer of subrogor Thomas S., and provided health-care benefits pursuant to the terms of a Small Group Health Maintenance Organization Point of Service plan governed by the Employee Retirement Income Security Act of 1974 (ERISA). A physician performed a platelet-rich plasma (PRP) injection of Thomas S.’s right shoulder at MSC. Aetna considers PRP to be experimental and investigational when used for the treatment of tendonopathies (e.g. elbow, heel, knee and shoulder). MSC submitted a claim for payment pursuant to an assignment of benefits purportedly executed by Thomas S. Aetna denied payment for the PRP injection, as it determined that this procedure is not effective and is not coverable under the member’s plan. Plaintiff filed a complaint alleging claims of breach of contract, promissory estoppel, negligent misrepresentation, and unjust enrichment. Aetna moved for summary judgment, arguing that (1) its benefits determination was not arbitrary and capricious, (2) plaintiff’s state claims are pre-empted by ERISA, and (3) plaintiff should be ordered to pay attorney fees. Aetna’s motion is granted. Aetna’s request for attorney fees and costs of suit is denied. [Filed May 22, 2013.]

HEALTH LAW — MEDICAID

22-7-0392 Carlini v. Velez, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (13 pp.) Plaintiff, who resides in a skilled nursing unit, is granted a preliminary injunction in this action alleging that defendants violated his rights under 28 U.S.C. § 1983 by denying him benefits under New Jersey’s Medicaid program for a period of time based on their finding that an annuity purchased by his wife, the “community spouse,” was a transfer of assets for less than fair market value that subjected plaintiff to a penalty period of 39 months and 29 days. The court construes disputed language in the annuity and concludes that it is clear that plaintiff will likely be able to prove that the annuity, as construed, is not an impermissible transfer of assets for less than fair market value; that plaintiff will suffer irreparable harm unless a preliminary injunction is issued because the Eleventh Amendment gives the state immunity from an award of retroactive benefits except for the three months immediately preceding an outcome and thus he will not be able to obtain full monetary compensation at trial; there will be no harm to the defendant since all parties agree that without the authority-to-consent language, which is construed herein to provide for only a verification, the annuity is compliant with the Deficit Reduction Act; and the public interest weighs in favor of granting the injunction. [Filed June 4, 2013.]

INSURANCE LAW

23-7-0431 National Union Fire Ins. Co. of Pittsburgh v. Evanston Ins. Co., U.S. Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) Plaintiff, the excess liability insurance carrier for Budget Rent-A-Car, moves for summary judgment in this action against Evanston, Budget’s primary insurer, seeking attorney fees and costs and indemnification for plaintiff’s share of the damages in an underlying action against Budget that resulted in a settlement. Evanston opposes the motion and moves for summary judgment. It also objects to the court’s consideration of evidence offered in support of plaintiff’s motion. Noting that the objections have not been properly presented, but finding that they should be considered, the court orders Evanston to raise the objections anew, on a proper notice of motion, and denies the motions for summary judgment. The court orders that Evanston, when moving anew to strike plaintiff’s evidence, must set forth the factual basis for each objection and provide meaningful legal analysis. [Filed June 10, 2013.]

INTELLECTUAL PROPERTY

53-7-0441 Artemi Ltd. v. Safe-Strap Co. Inc., U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (16 pp.) On July 16, 2003, plaintiff Artemi Ltd. initiated this patent infringement action against defendant Safe-Strap Co. Inc. Several months later, on the parties’ consent, the court stayed the case pending the U.S. Patent and Trademark Office’s (USPTO) decision on re-examination and reissue of the patent at issue. The USPTO issued its decision on July 26, 2011. Almost a year and a half after the USPTO proceedings concluded, Artemi filed theis motion to reopen this case. Artemi also seeks to amend the amended complaint to reflect the USPTO’s decision. Safe-Strap opposes both motions. The court holds that Artemi’s delay was not in bad faith and Safe-Strap will not be prejudiced by reopening this case; thus, the motion to reopen is granted. The motion to amend is granted as to the direct infringement claims and denied without prejudice as to the indirect infringement claims. [Filed May 30, 2013.]

LABOR AND EMPLOYMENT

25-7-0367 Covington v. URS Corporation, U.S. Dist. Ct. (Salas, U.S.D.J.) (6 pp.) Defendants URS Energy and Construction Inc. and human resource director Deni Hoehne filed a motion to dismiss pro se plaintiff’s complaint alleging age discrimination pursuant to the Age Discrimination and Employment Act (ADEA). Defendants argue that plaintiff’s complaint must be dismissed because his claims are time-barred. Specifically, defendants contend that plaintiff had 90 days from the date he received the right-to-sue letter to file a federal suit under the ADEA. The court agrees that plaintiff was required to commence his lawsuit against defendants within 90 days after receiving notice that the EEOC had terminated its proceedings. Plaintiff, however, did not file his complaint until 92 days after the right-to-sue period expired. Plaintiff also failed to allege that defendants had anything to do with his untimeliness. In the absence of some equitable basis for tolling, a civil action that is filed even two days late is time-barred. Consequently, this civil action is time-barred. Defendants’ motion to dismiss plaintiff’s complaint as untimely is granted. [Filed May 20, 2013.]

25-7-0410 Bravo v. Union County, U.S. Dist. Ct. (Debevoise, U.S.D.J.) (23 pp.) This matter arises out of the discipline and ultimate termination of plaintiff’s employment with the Union County Board of Elections (BOE). Plaintiff filed a complaint against Union County, the BOE, and Dennis Kobitz, asserting claims under the Family and Medical Leave Act (FMLA), and the New Jersey Law Against Discrimination (NJLAD). The BOE move for summary judgment on all of plaintiff’s claims, while plaintiff moves for summary judgment on her claim for FMLA interference. Defendants’ motion is granted with respect to plaintiff’s NJLAD claims in their entirety, and her FMLA claims, as they relate to her surgery, but denied with respect to her other FMLA claims. Plaintiff’s motion is denied in its entirety. [Filed May 23, 2013.]

25-7-0411 Lampon-Paz v. Department of Homeland Security, U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Reading pro se plaintiff’s complaint as an appeal of the decision of the Merit Systems Protection Board and as asserting causes of action under seven federal statutes and five common-law tort theories, the court grants the federal defendants’ and New Jersey’s motions to dismiss, finding that it does not have jurisdiction over the MSPB appeal because MSPB decisions may only be reviewed by the U.S. Court of Appeals for the Federal Circuit, and that the remaining claims cannot proceed because plaintiff failed to state a claim on which relief can be granted. The complaint does not contain a single allegation about New Jersey and the only allegation that pertains to the federal defendants is an allegation that the Social Security Administration gave plaintiff full benefits but such an action does not give rise to any type of liability. The dismissal is with prejudice as the court finds that further amendments would be futile. [Filed June 7, 2013.]

LABOR AND EMPLOYMENT — DISCRIMINATION

25-7-0393 Lyons v. Napolitano, U.S. Dist. Ct. (Salas, U.S.D.J.) (6 pp.) Plaintiff, employed by the Transportation Security Administration at Newark Liberty International Airport, alleges that she was discriminated against in April and October 2005 by the TSA’s bidding process for picking shifts, days off, and work locations that reserves certain days for men only, in violation of the Civil Rights Act of 1964. Plaintiff filed an EEOC complaint regarding the April claim but the EEOC dismissed her amendment adding the October claim because it was submitted 22 days late. Defendants move to dismiss the October claim for failure to exhaust administrative remedies. The court denies the motion because the October claim is fairly within the scope of plaintiff’s April claim and thus, the exhaustion requirement is satisfied, and the fact that plaintiff is represented by counsel does not alter that conclusion. [Filed June 5, 2013.]

PRODUCT LIABILITY

32-7-0394 Dymnioski v. Crown Equipment Corp., U.S. Dist. Ct. (Thompson, U.S.D.J.) (15 pp.) Plaintiff was injured during the course of his employment while operating a Crown standup rider forklift. Plaintiffs allege that the forklift was defectively designed because defendant failed to equip the lift with an operator compartment door and failed to implement a prevention algorithm in the lift’s braking system. Defendant Crown Equipment Corporation filed two motions: (1) a motion to preclude the testimony of plaintiff’s expert, Bruce Gorsak; and (2) a motion for summary judgment. The court finds that Gorsak has failed to satisfy either Daubert factors or any other set of reasonable reliability criteria. Given the discretion granted by Rule 702 to determine reliability in light of the particular facts and circumstances of the particular case, and the court’s further determination that such unreliable testimony would not be helpful to a jury attempting to determine whether or not the forklift in issue is defectively designed, the court grants defendant’s motion to preclude Gorsak’s testimony. Since the court has found Gorsak’s expert testimony sufficiently lacking so as to warrant exclusion, and as plaintiffs have offered no other expert witness, the court agrees with defendant that plaintiffs have failed to produce evidence sufficient for a reasonable jury to find that the forklift was defective and caused plaintiff’s injury. The court grants defendant’s motion to preclude the expert testimony, and defendant’s motion for summary judgment. [Filed May 24, 2013.]

PUBLIC RECORDS

52-8-0395 Wadhwa v. Department of Veteran Affairs, Third Cir. (per curiam) (3 pp.) The Third Circuit previously determined that defendant had failed to produce a detail nonconclusory affidavit submitted in good faith that would warrant granting summary judgment in this Freedom of Information/Privacy Act action and remanded the matter regarding the records and documents not produced. Plaintiff appeals from the district court’s grant of defendant’s motion for summary judgment on the remand. The court affirms, finding that the two updated affidavits before the district court provided that court with an adequate factual basis for its determination and its decision was not clearly erroneous. [Filed June 5, 2013.]

RESIDENTIAL AND COMMERCIAL REAL ESTATE

34-7-0442 The Watermark Condominium Residences Association Inc. v. WCI Communities Inc., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (6 pp.) Two motions are before the court — a motion to transfer venue to the U.S. Bankruptcy Court for the District of Delaware filed by defendants WCI Communities Inc. and WCI Towers Northeast, USA Inc. (the developer defendants); and a motion to remand to New Jersey state court filed by plaintiff Watermark Condominium Residences Association Inc. The association’s complaint asserts that it is a nonprofit corporation organized under the laws of New Jersey to own, administer, manage, operate, maintain, repair and replace the common elements of “The Watermark Condominium Residences,” a condominium complex. The association alleges that the other named defendants worked with the developer defendants to complete the development of Watermark. The association alleges that defendants’ development of Watermark was defective and asserts claims for negligence, negligent misrepresentation, breach of express warranties, breach of implied warranties, breach of fiduciary duty, subrogation claims — negligence, breach of warranty and violation of the New Jersey Spill Act. The court grants defendant’s motion to transfer venue; denies the association’s motion to remand without prejudice; administratively terminates all ancillary pending motions; and stays all motion practice until further order of the bankruptcy court for the district of Delaware. [Filed May 30, 2013.]

TORTS

36-7-0396 Boone v. Save-A-Lot Food Stores Ltd., U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (8 pp.) Plaintiff moves to remand this personal-injury action originally filed in state court after plaintiff tripped and fell at a Save-A-Lot store, arguing that the amount in controversy does not meet the threshold set by 28 U.S.C. § 1332 because she made an offer of judgment of $74,900. The court denies the motion, finding that based on the $175,000 demand in the settlement memorandum, the notice of removal, and the factual allegations in the complaint, it is clear that the amount in controversy exceeded the statutory minimum at the time the complaint was filed and when the case was removed and that plaintiff’s offer of judgment cannot oust the court’s subject-matter jurisdiction. [Filed June 6, 2013.]