Aug. 29 to Sept. 4, 2013
STATE COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-2-1160 Levonas v. Regency Heritage Nursing and Rehabilitation Center, App. Div. (per curiam) (14 pp.) By leave granted, defendants appeal from an interlocutory order denying their motion to dismiss this complaint asserting claims for, inter alia, gross negligence, medical malpractice, wrongful death and deprivation of civil rights, for failure to arbitrate. Applying the totality of circumstances articulated in Cole v. Jersey City Medical Center, the panel finds that defendants waived their right to invoke the arbitration clause in the nursing home admission agreement by active and protracted participation in the litigation and affirms. [Decided Aug. 29, 2013.]
03-2-1173 Tagayun v. Americhoice of New Jersey Inc., App. Div. (per curiam) (13 pp.) Plaintiff-physician appeals from the order compelling arbitration of her dispute with defendant, a health maintenance organization that maintains a network of physicians who provide medical services to its members, regarding defendant’s nonrenewal of its participating provider agreement with plaintiff. The panel finds that the parties executed the PPA, which contains a valid arbitration clause, and that plaintiff’s adhesion contract argument lacks merit. Therefore, it finds that the judge did not err in compelling arbitration and it declines to issue a stay of the nonrenewal. [Decided Aug. 30, 2013.]
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-2-1174 Bouie v. VK Realty Associates, App. Div. (per curiam) (5 pp.) Plaintiff appeals from an order denying his motion for reconsideration of an order dismissing his complaint with prejudice for failure to appear at a nonbinding personal-injury arbitration. On appeal, plaintiff’s counsel argues that his office “was never notified of the arbitration.” The appellate panel concludes that plaintiff’s counsel received proper notice of the arbitration. Both defense counsel and the court notified plaintiff’s counsel of the arbitration date. Plaintiff’s counsel then received defense counsel’s letter seeking an adjournment of the arbitration. Plaintiff’s counsel responded the next day by writing the arbitration office and, as a result, the arbitration was not adjourned. Thus, the court did not err by dismissing the complaint without prejudice when plaintiff and his counsel failed to appear. The judge concluded that plaintiff ignored the dismissal without prejudice because defendant’s motion to dismiss the complaint with prejudice was unopposed. Plaintiff’s counsel contended on reconsideration that he did not ignore this matter because he later moved to reinstate the complaint. The fact remains, however, that reinstatement of the complaint was conditioned on establishing good cause, and payment of the restoration fee. Here, plaintiff did neither. Therefore, the judge did not err by dismissing the complaint with prejudice and denying reconsideration. [Decided Aug. 30, 2013.]
ALTERNATIVE DISPUTE RESOLUTION — INSURANCE LAW
03-2-1196 Exclesior Ins. Co. v. One Beacon Ins. Co., App. Div. (per curiam) (9 pp.) Defendant provided liability coverage to Hovson’s Inc., a builder, from March 1999 through March 2001; plaintiff provided similar coverage from March 2001 through March 2005. When Hovson was sued in connection with damage caused by water infiltration, Excelsior denied coverage, claiming that the infiltration did no manifest during the period it covered Hovson. One Beacon provided a defense under a reservation of rights and after judgment was entered against Hovson instituted a special arbitration against Excelsior. After Excelsior failed to answer and its last-minute adjournment motion was denied, the matter proceeded to arbitration, where an award was entered in favor of One Beacon. Excelsior filed a complaint seeking to vacate the arbitration award and appeals from the trial court’s grant of One Beacon’s motion to confirm the award. The panel affirms for the reasons expressed below, adding that the parties are both signatories under Arbitration Forum Inc. (AFI) and are bound by its provisions that, inter alia, require a party asserting an affirmative defense, such as lack of jurisdiction, to assert it, which Excelsior failed to do, and thus there was no abuse of discretion in denying the adjournment request. Moreover, under the AFI, Excelsior’s denial of coverage based on the damage manifesting itself two years before the inception of its coverage does not constitute a denial of coverage as defined in the arbitration agreement and the AFI therefore had jurisdiction to hear the dispute. [Decided Sept. 3, 2013.]
CIVIL PROCEDURE — CREDITORS’ AND DEBTORS’ RIGHTS
07-2-1197 Midland Funding v. Angwenyi, App. Div. (per curiam) (5 pp.) Defendant appeals from the order denying his motion for reconsideration of an order that entered default judgment in favor of plaintiff on a credit-card debt. The panel reverses and remands, finding that defendant properly requested an adjournment of the trial and submitted proof that he was out of the country, and there is reason to believe that he never received notice of plaintiff’s motion for entry of default judgment because he certified he did not receive it, the motion was not sent to the correct address, and plaintiff was unable to produce a return receipt card to confirm that defendant received its motion. [Decided Sept. 3, 2013.]
CIVIL PROCEDURE — LANDLORD/TENANT LAW
07-2-1198 Gig’s Inc. v. Park, App. Div. (per curiam) (10 pp.) In this dispute regarding damages to the premises defendants leased from plaintiff to operate a restaurant, which resulted in a judgment in favor of the landlord for $105,775, appellant Park appeals from the denial of her motion, made pursuant to Rule 1:13-1, to amend the judgment to remove the provision making all three defendants jointly and severally liable for the entire amount of the judgment. The panel affirms, finding that the decision to include a joint and several liability provision in the judgment was made by the judge, not by the clerk, and, therefore, Park had to proceed under R. 4:50-1(a), and since she did not file her motion to amend the judgment until more than three years after its entry, her motion was properly denied as untimely. Moreover, the panel says it is not clear on the record that the inclusion of the provision was a “mistake” where plaintiff consistently took the position that she and the other two defendants were essentially one and the same and, accordingly, they should be jointly and severally liable for the entire judgment, and she did not object to the form of the order prior to the judge signing it or even after the judge raised the possibility that the provision had been included in error in determining to grant a stay of the judgment pending appeal. Park’s delay in raising the objection strongly supports the conclusion that there was no error in the judgment. [Decided Sept. 3, 2013.]
CONTRACTS
11-3-1175 Spectraserv Inc. v. Middlesex County Utilities Authority, Law Div. — Middlesex Co. (Francis, A.J.S.C.) (41 pp.) In this motion to dismiss, the court must decide whether the economic-loss doctrine bars a plaintiff’s claim for purely economic losses resulting from negligence against a defendant with whom the plaintiff has no contractual privity and where the plaintiff’s contract with a mutual contracting party includes a remedy for economic losses. This complex construction litigation arises from a contract between plaintiff Spectraserv Inc. and the Middlesex County Utilities Authority (MCUA) involving the construction of improvements or modifications to a sludge pasteurization process at a processing facility in Sayreville. Due to numerous delays, setbacks and the ultimate termination of the construction project, Spectraserv filed a complaint alleging, inter alia, claims of negligence against the projects engineering and design professionals. The court finds that since the loss plaintiff seeks to redress in its contractual claims is duplicative of that it seeks to redress in its negligence claims, the negligence claims are barred by the economic-loss doctrine. Therefore, the negligence claims are dismissed. Spectraserv can seek to recover its economic losses through its claims against the MCUA. [Decided Feb. 11, 2013; corrected July 25, 2013.]
11-2-1217 Cocuzza v. Renna, App. Div. (per curiam) (25 pp.) In this action asserting claims for breach of contract, fraud and unjust enrichment related to the sale of a pizzeria to plaintiff, defendant challenges the trial judge’s finding that plaintiff had proved equitable fraud based on the disparity between the represented weekly income and the weekly income generated as stated in the summary reports for the business and plaintiff’s reliance on the representations, and the damage award. The panel affirms, finding that defendant not only misrepresented the gross income of the pizzeria but also prevented plaintiff from fully verifying defendant’s repeated assurances that the pizzeria would generate the represented sum, and that where defendant withheld information exclusively in his possession and furnished misinformation, he should not be allowed to undermine plaintiff’s legitimate claim of reasonable reliance on the misrepresentations. The panel also affirms the damages award, finding that inasmuch as money damages are not permitted in an action for equitable fraud, the judge’s order rescinding the contract and returning to plaintiff monies he paid to defendant was a reasonable and equitable remedy to the dispute. [Decided Sept. 4, 2013.]
CONTRACTS — AUTOMOBILES
11-2-1199 Benner v. Sharp, App. Div. (per curiam) (6 pp.) Appellant Robert Benner appeals from the order of the Special Civil Part granting defendants Bruce Sharp, Donna Sharp and Bruce’s Towing and Repair’s motion for summary judgment. Appellant also appeals from the court’s order denying his motion to file an amended complaint. Plaintiff never responded to defendants’ request for admissions and they were therefore deemed admitted. Despite being given the opportunity to respond to defendants’ motion for summary judgment, plaintiff failed to do so. Thus, the admitted facts of the case establish that plaintiff agreed to sell his 2006 Jeep to defendants, accepted $1,500, and then failed to provide the title to Sharp. Under these circumstances, there is no reason to disturb the trial judge’s determination to grant summary judgment to defendants of $1,500. Because plaintiff’s complaint was dismissed, there was no basis for the judge to permit plaintiff to thereafter amend the complaint to add another plaintiff. Therefore, the judge did not abuse his discretion by denying plaintiff’s motion. [Decided Sept. 3, 2013.]
CRIMINAL LAW
14-2-1207 State v. Stallworth, App. Div. (per curiam) (14 pp.) Defendant appeals from the order denying his petition for postconviction relief (PCR) without conducting an evidentiary hearing. Defendant contends his trial counsel was ineffective because she did not accurately advise him as to the consequences of his two guilty pleas in 2005 on the disposition of any future charges he might face. Defendant could reasonably have concluded from the advice given to him by his attorney, and the remarks made by the prosecutor and the judge, that, even though he had committed two offenses, they would be treated as a single entity if he later got into trouble. On appeal, defendant argues this advice was incorrect because he was later found to be a “career offender” under the federal sentencing guidelines based on the fact that he had a total of three prior convictions, two from 2005 and one from 2006, at the time he was convicted of the federal charge. However, because the PCR judge did not examine defendant’s federal judgment of conviction, presentence report or the transcript of the federal sentencing, there is no way of determining the specific impact the 2005 offenses had on the overall sentence. Defendant established a prima facie case of ineffective assistance of counsel that could not be resolved on the record before the PCR judge. The panel reverses the judge’s denial of defendant’s petition for PCR and remands the matter for an evidentiary hearing. [Decided Sept. 3, 2013.]
14-2-1223 State v. Musa, App. Div. (per curiam) (10 pp.) After a deliberating juror inexplicably failed to return to court to resume the second day of jury deliberations, the court replaced the unexcused juror with an alternate juror and recharged the reconstituted jury. The jury commenced deliberations anew and, after nearly three hours of deliberations, reached a verdict finding defendant guilty of second-degree robbery. The appellate panel now reverses. The court made appropriate inquiries to determine the juror’s whereabouts and the court did not abuse its discretion in replacing the juror after nearly two hours had elapsed since the reporting time. However, the court did not determine whether the juror’s failure to return to court was for reasons personal to the juror or due to the juror’s interaction with the jury. The court should have sought further clarification from the jury regarding its note the previous day asking whether a particular juror could be excused; and, after Juror #2 failed to appear the next day, the court should have questioned the remaining jurors in an effort to determine whether there was any connection between the previous day’s question and Juror #2’s nonappearance. The court’s failure to explore the inquiry when the question was first posed and its subsequent failure to undertake any questioning of the remaining jurors in an effort to gain insight into why the juror had not returned impedes review of the propriety of the substitution, requiring reversal. [Decided Sept. 4, 2013.]
EDUCATION — LABOR AND EMPLOYMENT
16-2-1176 Halpern v. Marion P. Thomas Charter School, App. Div. (per curiam) (11 pp.) Plaintiff appeals from the Law Division order granting defendant’s motion for summary judgment dismissing her complaint for breach of contract with prejudice, which was filed after defendant-charter school advised her in August 2010 that due to budgetary constraints she would not be employed for the 2010-11 school year despite having previously entered into a contract with her for that school year. Plaintiff, who had been employed pursuant to two previous 10-month contracts, alleges that the presumption of at-will employment was overcome by her employment contract, which specified a definitive duration of employment and did not contain a termination provision for the charter school. The panel finds that there are genuine issues of material fact concerning the contractual intent of the parties, the precise meaning and significance of the specified term of employment, and issues regarding the meaning and intent of language in the school handbook precluding summary judgment. It reverses and remands. [Decided Aug. 30, 2013.]
EMPLOYEE BENEFITS
56-2-1218 Nora v. Bd. of Trustees of the Public Employees’ Retirement System, App. Div. (per curiam) (15 pp.) Plaintiff appeals from the board’s decision that his pensionable annual salary from the city of Elizabeth was $20,800, which was his contracted salary as a part-time building subcode official and the amount on which pension contributions were made, rather than on his actual earnings from the city, which exceeded his contracted rate. The panel affirms, concluding that, under the law governing plaintiff’s period of employment, the board did not err in ruling that $20,800 was plaintiff’s pensionable salary from the city because that was the amount certified by the city, and that the amendment to N.J.A.C. 17:2-4.7 to require employers to use the actual creditable salary earned by part-time hourly, on-call or per diem employees, and not an estimated salary, was not applicable to plaintiff because it was not declared retroactive and applying it retroactively could not be reasonably expected given the nature of pension obligations and the need to protect the fiscal integrity of the pension fund. The panel also finds that the board did not err in denying plaintiff’s request for a hearing before an ALJ as there were no disputed issues of material fact. [Decided Sept. 4, 2013.]
ENVIRONMENTAL LAW
17-2-1177 New Jersey Department of Environmental Protection v. Bello, App. Div. (per curiam) (8 pp.) Defendant appeals from a decision by the commissioner of the Department of Environmental Protection finding that he violated the Freshwater Protection Act by filling a freshwater wetlands transition area without authorization. The panel affirms substantially for the reasons expressed by the commissioner, including that the construction permit that Bello had obtained to build a barn in a nontransition area had expired when he decided to construct the barn, but in the paddock area, which was in a transition area, and even though he ultimately abandoned that plan, the grading and placement of fill in the transition area in contemplation of construction were regulated activities that required a transition area waiver, which he did not obtain. [Decided Aug. 30, 2013.]
17-2-1219 388 Route 22 Readington Realty Holdings v. Readington Twp., App. Div (per curiam) (31 pp.) Plaintiff filed an action in lieu of prerogative writs challenging defendant-township’s denial of its request for allocation of sewer rights held but not used by property owner-defendants. The unused capacity was contractually committed to other property owners, which contracts had financed the creation of the unused capacity at issue. The township had denied plaintiff capacity because there were no additional sewer rights available for allocation by contract and the township did not have any reason for disturbing the contractual rights of those who paid for the capacity. Plaintiff asserted facial and as applied challenges to the township’s sewer capacity allocation ordinance. The trial court determined that the township had arbitrarily applied the ordinance and entered a writ of mandamus directing the township to exercise its discretion and provide a reasoned basis for recapturing sewer rights not yet in use. The panel rejects the facial challenge, finding that the ordinance contains adequate standards to guide the township in determining whether to exercise its discretion to reacquire sewer rights. It rejects the as-applied challenge, finding that plaintiff cannot establish that the denial was arbitrary because it failed to overcome the presumption of validity to which the decision is entitled given the nature of the request, plaintiff’s preference for litigation or settlement over development and presentation of a more definitive request, and its failure to identify those who were holding sewer rights, at great expense, without good cause for delay. [Decided Sept. 4, 2013.]
FAMILY LAW
20-2-1161 Gillies v. Pittman, App. Div. (per curiam) (5 pp.) Plaintiff-father appeals from a child support hearing officer (CSHO) order directing the Probation Division to collect child support on application of defendant-mother. Previously, the parties appeared before the CSHO because they had agreed plaintiff’s parental rights would be terminated and defendant would no longer seek child support. The hearing officer explained that such an arrangement was not permitted, but converted the case to direct-pay status pending adoption of the children. Two months later the parties appeared before the CSHO on the mother’s application to reinstate payment through the Probation Division. In opposition, plaintiff explained that he was unable to complete job applications due to his lack of writing ability and was surviving on welfare payments. The CSHO ordered collection through the Probation Divsion. On appeal, plaintiff asserts that the children were conceived through artificial insemination and he should not be obligated to provide child support based on N.J.S.A. 9:17-44(a) and (b), which deal with artificial insemination by anonymous sperm donors. The appellate panel does not consider this issue as it was not raised at the hearing, nor does the panel consider arguments regarding plaintiff’s inability to pay support. The order from which he appeals relates only to defendant’s request that support be collected through the Probation Division , which is affirmed. [Decided Aug. 29, 2013.]
20-2-1162 Smith v. Smith, App. Div. (per curiam) (5 pp.) Defendant appeals from the Family Part’s March 13, 2012, order denying his motion for reconsideration of the court’s order of Jan. 27, 2012, which denied reconsideration of orders entered in November 2011. A dual judgment of divorce was entered on Dec. 9, 2008, which included an award of legal fees to plaintiff. On Jan. 27, 2009, the court entered an order requiring defendant to cooperate with the equitable distribution of 12 financial accounts. Plaintiff made three separate motions to enforce litigant’s rights as a consequence of defendant’s failure to comply with the order. On Nov. 14, 2011, the court found defendant to be in violation of litigant’s rights for his failure to cooperate in the equitable distribution of the accounts. He was also ordered to pay counsel fees. Defendant appeals from the denial of his motion for reconsideration of the denial of his prior motion for reconsideration. No such relief is provided for in the court rules. Defendant’s appeal of the Jan. 27, 2012, order denying his motion for reconsideration is untimely. The appellate panel affirms for substantially the same reasons expressed by the motion judge. [Decided Aug. 29, 2013.]
20-2-1178 Burns v. Burns, App. Div. (per curiam) (21 pp.) Defendant appeals from the postjudgment Family Part order that denied his motion for a hearing concerning recalculation of his spousal and child-support obligations. He contends the court erred by denying his motion on the grounds that he had withheld financial information and filed a misleading case-information statement. He also contends that the court abused its discretion by issuing a bench warrant for his arrest after he defied three court orders, which he asserts were issued without due process. Lastly, he challenges both the judgment the court entered against him for support arrearages and the counsel fees the court awarded to plaintiff. The appellate panel affirms, finding no abuse of discretion on the part of the trial court in attempting to secure defendant’s support obligations and to force him to comply with its orders. Further, there is no basis to disturb the attorney fee award. [Decided Aug. 30, 2013.]
20-2-1200 Tamis v. Goldklang, App. Div. (per curiam) (6 pp.) Plaintiff appeals from the Family Part’s order granting a cross-motion filed by defendant to emancipate the parties’ daughter following her graduation from college and declare that he had no obligation to contribute to her postgraduate expenses. The panel affirms, finding that the parties’ PSA does not require that defendant contribute to postgraduate educational expenses and that the judge did not abuse her discretion in declining to order him to do so in light of the longstanding antagonism between father and daughter with no meaningful relationship for many years, and his serious illness and reduced income. [Decided Sept. 3, 2013.]
INSURANCE LAW
23-2-1163 Giangerelli v. Gari, App. Div. (per curiam) (9 pp.) In this dispute between IFA Insurance Company and New Jersey Manufacturers Insurance Company over coverage of an automobile accident in which Justin Gari, driving his mother’s car, struck a car driven by plaintiff, IFA appeals from the order for judgment in favor of NJM and the denial of its motion for a new trial. The central question is whether the evidence supported the judge’s legal conclusion that Gari, 21 years old, was a resident of his mother’s household and, thus, pursuant to her car insurance contract, IFA must cover the accident. The panel affirms, finding that the evidence submitted was so one-sided that a reasonable jury could not have found to the contrary and dismissal at the end of trial was appropriate. [Decided Aug. 29, 2013.]
23-2-1220 Seitler v. Prudential Insurance Company of America, App. Div. (per curiam) (12 pp.) Plaintiff Ronald Seitler appeals from the summary judgment order dismissing his breach-of-contract complaint against defendant Prudential Insurance Company of America due to untimeliness. After unsuccessfully appealing Prudential’s denial of long-term disability benefits, Seitler filed a breach-of-contract complaint in the Law Division. Prudential filed a motion to dismiss grounded on Seitler’s failure to commence the litigation within the policy’s three-year limitation-of-actions provision. Seitler’s loss is directly traceable to Prudential’s determination that he was no longer entitled to benefits beyond July 19, 2001. Prudential advised Seitler of that determination on Aug. 29, 2002, after completing its review of Seitler’s claim. Thus, although retaining the right of review through Prudential’s appeal process, Seitler’s loss occurred on Aug. 29, 2002. Giving the policy its due and starting the three-year period for the filing of a lawsuit at the 90th day after “written proof of loss is required to be furnished,” Seitler was required to file any legal action by Nov. 29, 2005. There is no requirement for exhaustion of Prudential’s internal appeal process. By waiting until Sept. 22, 2011, albeit while pursuing internal appeals, Seitler was five years too late. Further, the unexplained gaps of inaction, particularly when viewed under the lens of the policy, fatally undermine Seitler’s claim that he is entitled to an equitable tolling of the policy’s limitation-of-actions provision. [Decided Sept. 4, 2013.]
INSURANCE LAW — RESIDENTIAL AND COMMERCIAL REAL ESTATE
23-2-1164 Heiken v. Ricigliano, App. Div. (per curiam) (26 pp.) Plaintiffs Barbara Heiken and Kenneth Goldman appeal from the order that dismissed their complaint against defendants with prejudice. Following a flood in their condominium, Heiken’s insurance agent, defendant Thomas Freeman, told her to call defendant Servpro to remediate the damage. The matter was resolved but five months later, the condominium was severely damaged by water. Servpro responded and removed the standing water, but plaintiffs were unable to agree with their insurance company on the extent of the water damage and the cost to repair it. Plaintiffs hired defendant Joseph Ricigliano, who filed a declaratory judgment action. On July 10, 2007, plaintiffs filed a legal-malpractice action against Ricigliano, alleging that he “failed to observe and plead toxic mold that had developed in the premises … and thereafter, undersold and prematurely settled the property damage claim.” On Sept. 12, 2008, plaintiffs amended the complaint to add claims against Servpro, Freeman and Giglio Agency. Plaintiffs settled their claim against Ricigliano. After a Lopez hearing, the court concluded that, as the result of her consultation with two physicians, Heiken knew in August 2001 of the mold and the need for its remediation. The court found that the statute of limitations began to run on Aug. 21, 2001, and expired on Aug. 21, 2007. Further, because Goldman failed to exercise reasonable diligence, he was not entitled to invoke the discovery rule. The appellate panel finds the court appropriately granted summary judgment to the remaining defendants. [Decided Aug. 29, 2013.]
LABOR AND EMPLOYMENT
25-2-1179 Rosetti v. Board of Review, App. Div. (per curiam) (5 pp.) Appellant appeals from the decision of the Board of Review affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work. Appellant was employed as a police officer by Waterford Township from September 2006 until he resigned on Feb. 25, 2011. Appellant suffers from obsessive compulsive disorder (OCD). After he took two leaves of absence, the township denied appellant’s request for a third leave of absence and, because he did not want to return to work, appellant was given the option of resigning or being discharged. Appellant resigned. Appellant’s OCD was a condition that existed prior to his employment as a police officer. Appellant provided no medical documentation stating that his condition was work-related or aggravated by his working conditions. Appellant’s physician and the township’s doctor cleared appellant to return to work full time. After two weeks, however, appellant told the township he could no longer “effectively perform” his duties and he resigned from his job. The appellate panel finds no basis to interfere with the board’s decision that appellant was ineligible for unemployment benefits because he left work voluntarily, without any medical documentation to support his request for additional leave and, therefore, without good cause attributable to the work. [Decided Aug. 30, 2013.]
25-2-1180 White v. University of Medicine and Dentistry of New Jersey, App. Div. (per curiam) (12 pp.) Plaintiff, who was originally hired to work as an emergency medical technician and who was transferred to the dispatch center after she sustained injuries while on duty and who was ultimately terminated, appeals from the Law Division’s order granting summary judgment dismissing her claim for disability discrimination. The panel reverses and remands, finding that, affording plaintiff all reasonable inferences, a reasonable jury could find that defendant violated its obligations to provide reasonable accommodation and engage in an interactive process as required by the Law Against Discrimination and relevant case law. [Decided Aug. 30, 2013.]
25-2-1201 In the Matter of Yucht, App. Div. (per curiam) (11 pp.) Appellant Philip Yucht was a participant in the School Employees’ Health Benefits Program (SEHBP) under the NJ Direct 10 plan. He appeals from the final administrative determination of respondent Division of Pensions and Benefits, which denied his appeal of the decision of the SEHBP to reduce his reimbursement for out-of-network mental health services provided by a licensed clinical social worker. Health-care providers bill patients for services under codes established by the Current Procedural Terminology (CPT codes). Each service has its own CPT code and each CPT code has a usual, customary and reasonable (UCR) rate. CPT code 90806 is at issue here. The appellate panel concludes that the commission’s interpretation of N.J.S.A. 52:14-17.46.7 violated legislative policies expressed in the statute and improperly extended the statute to give it greater effect than its language permits. The statute does not authorize the commission to change the PHCS UCR fee schedule. Thus, the commission’s decision was arbitrary, capricious and unreasonable and it is reversed. N.J.S.A. 52:14-17.46.5d does not compel a contrary result. Even if that statute authorized the commission to reduce a statutory benefit to avoid inequity, the commission did not identify any inequity resulting from the PHCS UCR rates or the reimbursement rate required by N.J.S.A. 52:14-17.46.7. [Decided Sept. 3, 2013.]
25-2-1202 Sweet-Springs v. New Jersey Dep’t of Children and Families, Division of Youth and Family Services, App. Div. (per curam) (8 pp.) Appellant appeals from the final determination of the director of the Division on Civil Rights finding no probable cause to substantiate her complaint that her employer, the New Jersey Department of Children and Families (DCF) had discriminated against her on the basis of her race and disability. The panel affirms, finding that appellant’s arguments basically seek to have it re-evaluate the evidence and reach a contrary conclusion than the director but that that is not the function of the court, the report and recommendation adopted by the director are neither arbitrary, nor capricious, nor unreasonable, and the record provides sufficient credible evidence to support the conclusion that appellant was terminated because of a series of unauthorized and unexcused absences. [Decided Sept. 3, 2013.]
LABOR AND EMPLOYMENT — WHISTLEBLOWERS
25-2-1181 Trivers v. City of Atlantic City, App. Div. (15 pp.) Plaintiff, an Atlantic City police officer, appeals from a summary judgment dismissing his complaint alleging violations of the Conscientious Employee Protection Act and the New Jersey Civil Rights Act. The panel affirms, finding that, with respect to the CEPA claim, while plaintiff established the first two elements of a CEPA action, he failed to establish the third — that he had suffered an adverse employment action — since, inter alia, his transfer to the patrol unit occurred before his whistleblowing activity and therefore cannot be considered an adverse employment action, the disciplinary charges that were dismissed by the hearing officer do not qualify, demanding that he surrender his service revolver during his stress leave was prudent, and under the facts here, the refusal to honor his request for a transfer to the detective unit was not retaliatory. The CRA claim fails because the right to notice and a hearing plaintiff claims he was denied prior to his transfer to the patrol division are procedural, not substantive, due process rights and thus the CRA does not apply. [Decided Aug. 30, 2013.]
LAND USE AND PLANNING
26-2-1165 Griepenburg v. Township of Ocean, App. Div. (per curiam) (17 pp.) Plaintiffs are the owners of approximately 31 acres of land (the subject property) in Ocean. Plaintiffs challenged the enactment of township ordinances that rezoned the subject property from residential (R-2) and highway commercial (C-3) to an EC Environmental Conservation District (EC zone). The appellate panel reverses, concluding that these ordinances are invalid as applied to plaintiffs’ property because the downzoning is not required to serve the stated purposes of the ordinances and does not reflect reasonable consideration of existing development in the areas where the subject property is located. The case is remanded for entry of judgment declaring the zoning of the EC zone to be invalid as applied to plaintiffs’ subject property and reinstating the zoning that applied to the subject property before the adoption of the ordinance. [Decided Aug. 29, 2013.]
26-2-1182 Joseph Kushner Hebrew Academy Inc. v. Township of Livingston, App. Div. (per curiam) (52 pp.) Defendants Livingston, Livingston Township Council and Livingston Planning Board appeal from builder’s remedies awarded to plaintiffs Squiretown Properties and Hillside-Northfield Partners. On Sept. 1, 2009, the township adopted a housing element and fair-share plan as required by a February 2009 order. Defendants moved for reconsideration after the Supreme Court accepted certification on In re Adoption of N.J.A.C. 5:96 and 5:97, which invalidated COAH’s third-round rules. The relief was denied. After trial, Judge Carey granted the builder’s remedy. He concluded that his earlier order fulfilled the first prong of the test that Hillside was a successful Mount Laurel litigant. The judge found that it was uncontested that Hillside satisfied the second prong that the project provide a substantial amount of affordable housing. Addressing the third prong, the judge concluded that Hillside engaged in good-faith negotiations and was not barred from litigating the claim. The appellate panel affirms the award of a builder’s remedy. The panel rejects defendants’ arguments, including defendants’ argument that Hillside and Squiretown were not entitled to builder’s remedies because the township remained in compliance with its adjusted second-round housing obligation and they have no further obligations because third-round regulations were invalidated. [Decided Aug. 30, 2013.]
LANDLORD/TENANT LAW
27-2-1203 Odi v. Alcide, App. Div. (per curiam) (4 pp.) Defendant Jules Alcide appeals from the judgment in favor of plaintiff Emmanuel Odi. Alcide leased an apartment to Odi in November 2010. According to Odi, Alcide agreed to make repairs and gave Odi a discounted rent for the first three months. The repairs were not made and Odi stopped paying rent and moved out of the apartment on Feb. 28, 2011. On Feb. 18, 2011, Alcide filed a tenancy action against Odi, seeking his eviction for nonpayment of rent. Odi claimed he was not served with that complaint. Alcide obtained a default judgment for eviction. After Alcide failed to return the security deposit, Odi filed this action. Alcide answered and filed a counterclaim for back rent and damages based on breach of contract. The judge determined that a city inspector had found that the apartment was not habitable shortly before Odi moved in, that Odi paid rent through January, and that he left when the promised repairs were not made and the period of reduced rent was ending. The judge ordered the return of the security deposit. She also dismissed Alcide’s counterclaim. The appellate panel affirms. The fact that Odi did not raise a habitability defense in the tenancy action did not preclude him from doing so in this action. Even if he was served with the complaint, he had no reason to contest the termination of his tenancy. The habitability issue became relevant when Alcide opposed the return of the security deposit and sought additional damages by way of unpaid rent. [Decided Sept. 3, 2013.]
27-2-1204 Rodgers v. Wallie, App. Div. (per curiam) (3 pp.) Plaintiff Jonathan Rodgers appeals from the order vacating the default judgment and warrant of removal concerning the commercial property leased by Rodgers to defendant Debra Wallie. Rodgers filed a landlord-tenant action based on nonpayment of rent on June 1, 2012. A default judgment was entered and a warrant of removal was issued after Wallie failed to appear. Wallie applied for postjudgment relief, but her application was denied. Wallie again applied for postjudgment relief, and an order was entered staying the warrant of removal until July 16. Wallie applied for further relief on that date. Rodgers participated in the application by telephone and in person. The judge vacated the default judgment and the warrant of removal. The appellate panel affirms. A trial judge’s decision to grant or deny an application to vacate a default judgment is accorded substantial deference and will not be disturbed absent a “clear abuse of discretion.” Here, the judge determined that Wallie did not have sufficient notice of the hearing and that she was able to pay the overdue rent. There was no “clear abuse” of his discretion in granting relief to Wallie. The judge was not required to accept Rodgers’ assertion that it was Wallie who told him the date of the initial hearing, as to which Rodgers asserted he himself had not received notice. [Decided Sept. 3, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-1183 Marra v. Wells Fargo Bank, N.A., App. Div. (per curiam) (7 pp.) Plaintiff appeals from an order dismissing his complaint against Wells Fargo. In June 2009, plaintiff defaulted on his residential mortgage and approached Wells Fargo, his mortgage company, regarding a loan modification. Wells Fargo informed plaintiff that he might qualify for a loan modification under a federal Home Affordable Modification Program (HAMP), which entailed a two-step process. Wells Fargo would first verify plaintiff’s income while it allowed plaintiff to participate in a Trial Period Plan (TPP). Then, if plaintiff qualified under the HAMP, Wells Fargo would finalize the loan modification terms. Wells Fargo deemed plaintiff unqualified for the HAMP, and the parties never reached the second step of the process. In May 2010, the parties agreed to a non-HAMP modified loan. In September 2011, plaintiff defaulted. Plaintiff filed a complaint against Wells Fargo seeking money damages and an order compelling Wells Fargo to enroll him in the HAMP program. The motion judge concluded that plaintiff is not entitled to a HAMP loan modification based on the TPP, rejected any suggestion that there is a private cause of action for denial of a HAMP application, and dismissed the complaint with prejudice. On appeal, plaintiff argues again that he was contractually entitled to a loan modification under the HAMP pursuant to the TPP. The TPP explained that it was the first step of a two-step process. Wells Fargo did not sign a HAMP modification agreement. The appellate panel affirms, finding that plaintiff is not entitled to a HAMP loan modification based on the TPP. [Decided Aug. 30, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE — MORTGAGE FORECLOSURE
34-2-1205 Emigrant Mortgage Co. Inc. v. Lawrence, App. Div. (per curiam) (10 pp.) Defendant appeals from the denial of her second motion to vacate the default judgment in this mortgage foreclosure action. The panel affirms largely for the reasons given by the trial court. It finds that because her motion was her second motion to vacate the default judgment, the judge properly viewed it as one for reconsideration under Rule 4:49-2, rather than one to vacate under Rule 4:50-1, and that defendant did not meet the standard necessary to receive reconsideration since her motion was filed out of time and she did not show that the court’s decision on her first Rule 4:50 motion was based on a palpably incorrect or irrational basis, nor that the court either did not consider, or failed to appreciate the significance of probative, competent evidence, and the loan documents that she presented were not “new evidence” and they do no support her claim of a meritorious defense against foreclosure since, even if she had not received a notice of her right to rescind, the time to sue under the Truth in Lending Act has long since expired and is not subject to equitable tolling. [Decided Sept. 3, 2013.]
TAXATION
35-5-1166 WPH Mount Laurel v. Township of Mount Laurel, Tax Ct. (DeAlmeida, J.T.C.) (10 pp.) Plaintiff, the owner of income-producing property in Mount Laurel Township, challenged the tax year 2011 assessment on the property. Defendant moves to quash plaintiff’s notice of deposition and request for production of documents served by plaintiff seeking discovery to assist in opposing defendant’s pending motion to dismiss the complaint because of plaintiff’s failure to timely respond to the assessor’s request for income and expense information pursuant to N.J.S.A. 54:4-34. Plaintiff seeks information regarding the assessor’s actual review of the Chapter 91 information, arguing that if the assessor’s practice is not to review any of the Chapter 91 responses, dismissal of the taxpayer’s appeal for an untimely response would not be justified. The court holds that plaintiff is entitled to pursue its potential defense to the municipality’s motion through discovery. It denies defendant’s motion to quash discovery regarding the assessor’s general policies and procedures concerning the use of Chapter 91 information and its use of such information during 2010 but grants the motion regarding the reasons for any changes in real property tax assessments between tax years 2010 and 2011, finding that it is beyond the scope of permissible discovery for purposes of the taxpayer’s response to the municipality’s motion. [Decided July 25, 2013.]
35-5-1184 Avila v. State of New Jersey, Department of Corrections, Tax Ct. (DeAlmeida, J.T.C.) (6 pp.) In this action seeking plaintiff’s release from prison and the vacation of all fines and penalties imposed on him, which was served on the director of the Division of Taxation, although he is not named in the complaint as a defendant, the court sua sponte dismisses the complaint on the basis that it lacks jurisdiction over any of the claims raised by plaintiff. [Filed July 29, 2013.]
35-5-1185 Rumbas Properties v. Evesham Township, Tax Ct. (DeAlmeida, J.T.C.) (7 pp.) Plaintiff responded to a request from the tax assessor for income and expense information pursuant to N.J.S.A. 54:4-34, indicating that the property was owner-occupied and contained no rental units. However, during discovery in plaintiff’s challenge to the tax year 2012 assessment, it became apparent that the property was occupied by plaintiff, a single-member entity in which John Rumbas is the principal and which owns the property, and a separate entity, 380 Route 73 Inc., which trades as Motor Trans Transmissions and is solely owned by Rumbas. The latter pays the property expenses and pays plaintiff an amount equal to the mortgage payments and property taxes. Defendant moves to dismiss the challenge on the ground that plaintiff falsely responded to the Chapter 91 inquiry. The court finds that a tenancy existed at the property for purposes of N.J.S.A. 54:4-34, despite the corporate relationship between the landlord and tenant, and that by failing to report the income it received from 380 Route 73, plaintiff produced a false report. Defendant’s motion is granted, subject to plaintiff’s right to a reasonableness hearing pursuant to Ocean Pines Ltd. [Filed July 30, 2013.]
35-5-1206 247 Route 22 Inc./Walgreens v. Green Brook Township, Tax Ct. (DeAlmeida, J.T.C.) (6 pp.) Plaintiff, the owner of property in defendant township designated as Block 24, Lot 9 and commonly known as 247 Route 22 East, opposes defendant’s motion to dismiss its appeal of the tax year 2013 assessment on the property for failure to respond to the tax assessor’s Chapter 91 request. The court grants the motion, subject to plaintiff’s right to a reasonableness hearing pursuant to Ocean Pines Ltd., finding that although the commonly known address of the property contained in the request letter was incomplete, it was sufficient to put plaintiff on notice of the information sought, and that the information request, which sought information “from your most recent accounting period,” was not ambiguous. [Filed July 30, 2013.]
TORTS
36-2-1167 Muccia v. El Coronado Condo Assn., App. Div. (per curiam) (12 pp.) Plaintiff, who with her husband and two friends rented a condominium unit at the shore for a holiday weekend, appeals from the grant of summary judgment in favor of defendant in this personal-injury action, filed after she fell on the single riser between the living room level and the bedroom level. The panel affirms, finding that plaintiff was well aware of the step-down since it is undisputed that on entering the unit, she saw the condition and called it to the attention of her companions, she traversed the riser after unpacking when she walked to the living room, and management had posted a “watch your step” sign in a location where they expected occupants to see it after entering the unit and before walking to the lower level. Further, plaintiff’s expert’s opinion that there should have been a handrail did not preclude summary judgment in favor of defendant since the code requirement cited by plaintiff’s expert did not apply to the building and, thus, the report did not create a triable issue. [Decided Aug. 29, 2013.]
36-2-1186 Sherman v. Rutgers, The State University, App. Div. (per curiam) (16 pp.) Plaintiff and her husband appeal the summary judgment dismissing their personal-injury action filed after plaintiff tripped and fell over a retaining wall while exiting Rutgers’ Stadium, dislocating both arms and sustaining severe fractures requiring surgery. The panel affirms, finding that plaintiffs have failed to establish a prima facie case that defendant’s property was in a dangerous condition, rendering it liable under the Tort Claims Act, because plaintiff was not using defendant’s property with due care in a manner in which it was reasonably foreseeable that the property would be used where she was not using the sidewalk to walk from one point to another but had begun to walk perpendicular to the sidewalk, not toward an entrance to the building but toward its opaque glass walls. Further, she produced no evidence that the sidewalk, even under the lighting conditions that existed on the night she fell, posed any risk of danger. The panel also says the trial court correctly found that defendant’s conduct or omissions were not palpably unreasonable where in the years between completion of construction and the accident, there was no reported incident of any injury involving the retaining wall and adjacent drop-down into a well. [Decided Aug. 30, 2013.]
36-2-1222 Barile v. 3M Company Inc., App. Div. (per curiam) (28 pp.) Following trial in this mesothelioma case, defendant Foster Wheeler appeals from the jury’s verdict awarding $1,776,892 in damages to plaintiff. The jury found Foster Wheeler strictly liable for failing to warn workers about the dangers of asbestos when they were repairing a large customized boiler Foster Wheeler had manufactured specifically for defendant Exxon Mobil and installed at Exxon’s Bayway refinery. Plaintiff, individually and as executrix of the estate of her husband, filed a protective cross-appeal from rulings of the trial court dismissing or limiting her negligence claims against both Foster Wheeler and Exxon and denying her post-trial motion for a judgment notwithstanding the jury’s verdict in favor of Exxon. The appellate panel affirms in part and reverses in part. The panel reverses the jury’s verdict as to plaintiff’s claims against Foster Wheeler, finding the statute of repose was applicable to all of plaintiff’s claims against Foster Wheeler and barred the jury’s verdict awarding damages. The court finds no reversible error in the trial court’s rulings with respect to Exxon. As the trial court determined in denying plaintiff’s post-trial motion, the jury could rationally have concluded that plaintiff did not prove Exxon was negligent with respect to safety precautions employed at the Bayonne facility. [Decided Sept. 4, 2013.]
TRUSTS AND ESTATES
38-2-1187 In the Matter of Zwerdling, App. Div. (per curiam) (9 pp.) These back-to-back appeals stem from a long-running probate dispute. First, the appellate panel finds no abuse of discretion in the decision to deny the recusal motion. The judge handled this tempestuous matter in an evenhanded manner, and the fact that she ruled against appellant and Matano, the attorney who litigated the probate matter, is not evidence of bias. The panel rejects the appeals of the orders that declined to remove the public guardian and initially denied Matano all counsel fees. Here, in considering whether to remove the public guardian, the probate judge had the benefit of familiarity with the history of the parties’ longstanding dispute, having just permitted one of the co-guardians to resign. Given that the transition from the individual co-guardian to an institutional co-guardian was just completing, and there being little evidence of tangible harm to Zwerdling, retaining the public guardian was well within the authority of the judge. The order denying all counsel fees must be tempered by the judge’s later order granting fees based on actions by Matano, largely related to real estate matters, which warranted the award of fees. [Decided Aug. 30, 2013.]
FEDERAL COURT CASES
BUSINESS ENTITIES
12-2-1208 Mu Sigma Inc. v. Affine Inc., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (22 pp.) Defendants Affine Inc. (AI) and Affine Analytics Corp. (AAC) move to dismiss plaintiff Mu Sigma Inc.’s second amended complaint, in which plaintiff asserts various causes of action relating to allegations that AI and AAC illegally acquired, and continue to use, plaintiff’s business proprietary information, including information regarding plaintiff’s employees and clients. In response, defendants challenge that it is chronologically impossible for AI and AAC to have committed or participated in any of the factual allegations set forth in the complaint as those two business entities were not formed when the alleged illegal acts were committed; as a result, defendants maintain that the complaint is insufficient to state any claims. As examples of misappropriation, importantly, plaintiff references certain incidents prior to the incorporation of AI and AAC. Also, plaintiff also relies on the alleged conduct of the founders — when they were employed by Mu Sigma — to support the allegations of computer fraud against defendants. Defendants cannot be held vicariously liable for the alleged intentional acts of the founders when the corporate defendants, in fact, did not exist. The court grants defendants’ motion in its entirety. Plaintiff’s second amended complaint is dismissed. [Filed July 16, 2013.]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-1188 Northstar Marine Inc. v. R&A Marine, U.S. Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) Plaintiff Northstar Marine Inc. asserts claims against defendants R&A Marine, R&A Marine Inc., Raymond and Associates, and Raymond LaForce for breach of contract, unjust enrichment, and to pierce the corporate veil. Plaintiff alleges that defendants breached a response resource agreement that contains a forum-selection clause identifying the U.S. District Court for the District of New Jersey as the proper venue for disputes arising out of the resource agreement. Relying on this provision, and on the basis of diversity, plaintiff filed suit in this court. Defendants filed a motion to dismiss the complaint for lack of personal jurisdiction and lack of proper venue or, in the alternative, to transfer the matter to the District Court for the Southern District of Alabama. Defendants contend that the parties’ relationship is not governed by the resource agreement, but by another set of agreements that contain no forum-selection provision. Plaintiff has failed to oppose defendants’ motion and, thus, has not carried its burden of establishing jurisdiction. Because plaintiff failed to oppose defendants’ motion or demonstrate the enforceability of the forum-selection clause, the court grants defendants’ motion to dismiss for lack of personal jurisdiction. [Filed July 25, 2013.]
24-7-1224 Al-Ghena International Corp. v. Radwan, U.S. Dist. Ct. (McNulty, U.S.D.J.) (30 pp.) This dispute arises out of a failed business venture to acquire and develop real property in Florida. Defendants filed a motion to dismiss the amended complaint for lack of personal jurisdiction or, in the alternative, to dismiss or transfer for improper venue. The complaint alleges violations of federal and New Jersey RICO laws and Florida’s Civil Remedies for Criminal Practices Act, as well as claims of fraud, conversion, conspiracy, breach of fiduciary duty, and unjust enrichment. Defendants have established that New Jersey is an improper venue. Further, plaintiffs have not met their burden of establishing that the court has in personam jurisdiction over defendants. The court transfers this action to the Southern District of Florida, finding it is an appropriate venue and that a district court sitting there will likely have personal jurisdiction over defendants. [Filed July 16, 2013.]
CIVIL RIGHTS
46-7-1168 Natarajan v. CLS Bank International, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (6 pp.) Defendants — Evolvers, a management and technology consulting firm retained for the purpose of recruiting and hiring information technology specialists, and CLS, a company that engages in clearing, payment, and settlement services for participants in financial markets and a client of Evolvers — move to dismiss this action alleging discriminatory failure to hire in violation of the New Jersey Law Against Discrimination. The court finds that plaintiff’s claim that he is of Indian ancestry is sufficient to satisfy the first prong of the court’s analysis; it is plausible that plaintiff had the requisite experience for the position at CLS; plaintiff’s green card provides him with sufficient authorization to work; and that plaintiff was rejected. However, plaintiff has not alleged that the position remained open, that CLS and Evolvers continued to seek applicants, or that the position was eventually filled and, therefore, he has not pleaded facts to support the fourth prong of the analysis and has not sufficiently stated a plausible claim of discriminatory failure to hire under the NJLAD. The court grants the motion to dismiss without prejudice. [Filed July 30, 2013.]
CIVIL RIGHTS — LABOR AND EMPLOYMENT
46-7-1169 Hobson v. Tremmel, U.S. Dist. Ct. (Shipp, U.S.D.J.) (12 pp.) Defendants move to dismiss this action alleging violation of plaintiff’s civil rights arising out of sexual harassment during her employment as a nurse at the Ann Klein Forensic Center. The court finds that defendants are entitled to summary judgment. It dismisses the Title VII claims with prejudice because plaintiff did not exhaust her administrative remedies by filing a charge with the Equal Employment Opportunity Commission. Plaintiff’s 42 U.S.C. § 1983 claims against the defendant-state employees in their official capacity are dismissed with prejudice as they are entitled to Eleventh Amendment immunity. Plaintiff’s claim of individual liability against defendant Trammell is dismissed as he was not her direct supervisor and plaintiff fails to show that he had de facto supervisory authority over her. Her individual liability claims against the remaining defendants fail because she has failed to point to any facts that show that they acquiesced to the reported conduct. The court declines to exercise pendent jurisdiction over plaintiff’s state law claims. [Filed July 30, 2013.]
CONSUMER PROTECTION
09-7-1170 Durso v. Samsung Electronics America Inc., U.S. Dist. Ct. (Dickson, U.S.M.J.) (8 pp.) Currently pending are three separate class actions that involve claims concerning Samsung front-loading washing machines. Before the court are two motions to consolidate, namely (i) a cross-motion by plaintiffs Robert Durso, Suzanne Fast, Cathie Coke and Douglas Walker, individually and on behalf of all other persons similarly situated, to consolidate and appoint interim class counsel in Durso v. Samsung Elecs. Am. Inc. (the Durso class action); and (ii) a motion by plaintiffs Jeanne Spera and Bethany Mizell, on behalf of themselves and all others similarly situated, to consolidate actions and appoint interim class counsel in Spera v. Samsung Elecs. Am. (the Spera class action). The third action is the Chowning class action. The court grants the Spera plaintiffs’ motion to consolidate. The court denies the Durso plaintiffs’ cross-motion to consolidate; given the disparate factual analyses and sources of proof required by the claims in the Durso class action as compared to the limited claims in the Spera/ Chowning class actions, consolidation is not appropriate. [Filed July 24, 2013.]
CONTRACTS
11-7-1225 Bertino & Associates Inc. v. R L Young Inc., U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (22 pp.) Defendant moves to dismiss this action asserting claims for, inter alia, breach of contract, unjust enrichment and quantum meruit relating to an agreement between the parties — both engaged in the business of providing construction estimating and cost-evaluation services — under which plaintiff was to recruit expert estimators and property-loss evaluators and refer them to Young so that Young could expand its business in the Northeast. The court denies the motion, finding that (1) plaintiff has sufficiently pleaded the breach-of-contract claim by pleading facts supporting a conclusion that the work it performed on the World Resorts project either was within the scope of the agreement as written or that the parties’ course of performance effectively amended the agreement to include that project; (2) dismissal is not warranted as to the quasi-contract and quantum meruit claims because, inter alia, the facts do raise a question as to whether plaintiff’s work on the World Resorts project was within the scope of the agreement or the facts as pleaded could lead a reasonable fact finder to conclude that plaintiff’s work was rendered under an expectation of both parties that compensation was to be made; and (3) plaintiff’s claim of breach of the duty of good faith and fair dealing is not barred by the California Statute of Frauds. [Filed Aug. 1, 2013.]
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-1189 Kielty v. USAA Federal Savings Bank, U.S. Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) This is an action brought by plaintiff against defendant USAA Federal Savings Bank for violations of the Fair Credit Reporting Act (FCRA) and the Fair Debt Collections Practices Act (FDCPA). Defendant filed a motion to dismiss. Plaintiff, who is proceeding pro se, has not filed a response. Plaintiff’s complaint consists of an extremely brief statement on a New Jersey state court complaint form, and appears to allege violations of the FCRA based on defendant’s purported failure to notify plaintiff prior to recording negative information on his credit report on at least 10 separate occasions. Plaintiff also alleges violations of the FDCPA based on at five instances of “harassment via phone calls” by defendant. Plaintiff provides absolutely no factual support for claims, which is insufficient under Rule 8(a). The court finds that plaintiff has failed to state a claim and grants defendant’s motion to dismiss. [Filed July 25, 2013.]
15-7-1210 Tier v. Equifax Information Systems, U.S. Dist. Ct. (Kugler, U.S.D.J.) (8 pp.) Dominion Virginia Power moves to dismiss plaintiff’s complaint for lack of personal jurisdiction or, in the alternative, for failure to state a claim. Plaintiff asserts claims against Virginia Power for violations of the Fair Credit Reporting Act (FCRA). Plaintiff claims that Virginia Power furnished inaccurate credit history information to third parties when it reported plaintiff’s alleged failure to timely pay electricity bills. Plaintiff alleges that Virginia Power, along with Dominion Resources Inc., serves as a parent company to Dominion Energy Solutions (DES), which operates an electricity business in New Jersey. Plaintiff does not allege that Virginia Power has any independent contacts with New Jersey. Plaintiff has not met the burden of showing that Virginia Power and DES operate as the same entity, thus the contacts of DES with New Jersey cannot be imputed to Virginia Power for the purposes of establishing personal jurisdiction. Even if plaintiff’s assertion that DES is a subsidiary of Virginia Power were accurate, the contacts of a subsidiary with a jurisdiction cannot automatically be imputed to its parent. It is also clear that Virginia Power does not have the sort of “systematic and continuous” contacts with New Jersey that would give rise to general jurisdiction. Finding plaintiff has failed to establish personal jurisdiction, the court grants Virginia Power’s motion to dismiss. [Filed July 25, 2013.]
15-7-1226 Bright v. Asset Acceptance, U.S. Dist. Ct. (Simandle, U.S.D.J.) (34 pp.) Plaintiff moves for class certification and to seal documents in this action alleging that defendant violated the Fair Debt Collection Practices Act when it called New Jersey consumers from a telephone number that falsely displayed the name “Warranty Services” on the consumers’ Caller ID devices and as a result, consumers were misled about the identity of the caller as a debt collection agency. The court denies the motion for class certification because, inter alia, the class definition is overbroad and includes members who do not have Caller ID services and thus would not have viable FDCPA claims and because the content of the Caller ID depends on who the member’s carrier was, and plaintiff has come forward with no reliable or administratively feasible way of identifying members of the proposed class and thus the class is not ascertainable, and the predominance requirement of Rule 23(b)(3) is not satisfied. Plaintiff’s unopposed motion to seal a business agreement and defendant’s account notes regarding a nonparty consumer is granted as there are legitimate private interests at stake if they are disclosed and could harm defendant’s competitive standing in the marketplace. [Filed Aug. 1, 2013.]
CRIMINAL LAW — CORRECTIONS
14-7-1216 Shaw v. Burlington County Corrections, U.S. Dist. Ct. (Bumb, U.S.D.J.) (22 pp.) Defendant-individual corrections officers and the BCC move for summary judgment in this action asserting constitutional claims pursuant to 42 U.S.C. § 1983, negligence, and assault and battery (against the attacker) arising out of the assault on plaintiff by another inmate while both were incarcerated in the minimum security wing at the county jail, despite the attacker’s categorization as a maximum security inmate due to his history of assaulting other inmates. The court dismisses the claim of failure to protect against two of the officers because they had no knowledge of the attacker’s propensity for violence, but denies the motion with respect to other officers, including the warden, because of sufficient evidence that they were aware of the attacker’s dangerous behavior and took no action to protect inmates from harm. Because plaintiff has presented evidence that he was visibly wounded, had suffered serious head trauma, and was denied access to a doctor by all of the individual defendants, he has sufficiently presented evidence of deliberate indifference to a serious medical need as to those defendants and the court denies their request for summary judgment on this claim. The claim for cruel and unusual punishment against the individual defendants based on plaintiff’s placement in administrative segregation is dismissed because he has not presented evidence that he was deprived of the minimal necessities of life, other than medical care, which claim is proceeding. Because plaintiff has failed to adduce evidence showing that either the warden or captain is a policy-maker under Monell, the court grants in full the BCC’s motion for summary judgment. [Filed Aug. 1, 2013.]
EDUCATION
16-7-1211 P.C. v. Harding Twp. Bd. of Educa., U.S. Dist. Ct. (Martini, U.S.D.J.) (12 pp.) Plaintiffs, the parents of J.C., who suffers from autism, filed this action seeking to have defendant reimburse them for the costs of J.C.’s placement in a private learning center for children who suffer from autism after they rejected the district’s 2009 and 2010 recommendations that he be placed in a preschool autism program in neighboring Long Hill Township. Defendant moves for summary judgment affirming the decision of the ALJ that Long Hill would have provided J.C. a free appropriate public education and that, therefore, defendant did not have to reimburse plaintiffs. The court finds that plaintiffs have not established by a preponderance of the evidence that the 2009 and 2010 IEPs failed to provide J.C. with a FAPE, and that the ALJ correctly found that J.C. failed to identify an actionable procedural violation in the 2009 IEP because, although the 2009 IEP failed to include a statement of goals and objectives, the district was working to complete the IEP by the beginning of school and intended to produce an IEP containing the required goals and objectives shortly after J.C. began the school year, and because J.C.’s parents short-circuited the process, the court cannot say whether the finalized IEP would have resulted in a loss of educational opportunity or would have caused a deprivation of educational benefits. The court grants defendant’s motion for summary judgment. [Filed July 31, 2013.]
INTELLECTUAL PROPERTY
53-7-1190 Content Extraction and Transmission v. Wells Fargo Bank, U.S. Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff claims ownership of three patents that focus on the processing of information and alleges that defendant infringed on those patents by processing check and cash deposits made by customers at automatic teller machines and by processing check deposits made from mobile electronic devices. The court grants defendant’s motion to dismiss, finding that the three patents are invalid as abstract ideas not patentable under 35 U.S.C. § 101. [Filed July 31, 2013.]
53-7-1227 Janssen Products, L.P. v. Lupin Limited, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (9 pp.) In this patent dispute, the parties filed their initial Markman briefs. Defendants’ submission included a declaration from one of their experts, Dr. Laird. Plaintiffs then deposed Dr. Laird. The parties filed responsive Markman submissions. Defendants included a supplemental declaration from Dr. Laird. Plaintiffs filed a motion to strike sections of defendants’ responsive Markman brief and the supplemental declaration of Dr. Laird, arguing that defendants raised a new argument regarding the construction of a term. Alternatively, plaintiffs requested consideration of their reply brief. Defendants opposed. Plaintiffs argue that a responsive Markman brief is an inappropriate place to raise a new argument. Defendants contend that their responsive Markman brief directly responds to arguments raised for the first time in plaintiffs’ opening Markman brief. The court finds that plaintiffs did not fully disclose their combination argument before the opening Markman. In their responsive Markman, defendants directly responded to plaintiffs’ theory of construction explained for the first time in their opening Markman. The motion to strike portions of defendants’ responsive Markman is denied. The court also declines to grant plaintiffs’ motion to strike the supplemental declaration of Dr. Laird. Because the court is willing to consider defendants’ new counterargument, it will also consider plaintiffs’ rebuttal to the same. The motion for consideration of plaintiffs’ reply brief is granted. [Filed July 16, 2013.]
LABOR AND EMPLOYMENT
25-7-1191 Crovetti v .Washington Township, U.S. Dist. Ct. (Bumb, U.S.D.J.) (15 pp.) In this action filed by a female police officer asserting claims for discrimination, hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination, violation of the Conscientious Employee Protection Act, a 42 U.S.C. § 1983 claim for violation of the First Amendment, and intentional infliction of emotional distress, the court grants the motion of defendant-township and individual police officers for summary judgment dismissing the action. The First Amendment claim fails because the speech cited by plaintiff does not qualify as protected speech since the speech regarding the use of private cellphones was made pursuant to her official job duties and not as a public citizen and her complaint regarding discrimination related solely to her own claims, was not made in public, and did not relate to a matter of public concern. The court declines to exercise supplemental jurisdiction over plaintiff’s state law claims, which are dismissed without prejudice. [Filed July 31, 2013.]
25-7-1212 Fang v. State of New Jersey, U.S. Dist. Ct. (Shipp, U.S.D.J.) (7 pp.) The court grants defendant’s motion to dismiss this complaint alleging retaliation in violation of the Conscientious Employee Protection Act, finding the claims to be issue-precluded here, where plaintiff initially filed a complaint with the New Jersey Division on Civil Rights based on the same facts, which found no probable cause, and did not appeal that judgment to the Appellate Division, and filed a CEPA action in the Law Division, which was dismissed as judicially estopped after a finding that it was based on the same claims as the DCR matter, which was then still pending, which dismissal was affirmed by the Appellate Division. [Filed July 31, 2013.]
25-7-1213 Wolf v. PRD Management Inc., U.S. Dist. Ct. (Bumb, U.S.D.J.) (16 pp.) In this action alleging that defendant PRD, its president and its director of special projects and strategic planning terminated her because of her age, in violation of the Age Discrimination in Employment Act, the court denies defendants’ motion for summary judgment, finding that plaintiff has produced sufficient evidence to demonstrate pretext with respect to the nondiscriminatory reasons proffered by defendants for her termination, including that the lack of any mention of the four episodes in plaintiff’s personnel file and the staleness of two episodes calls into question the legitimacy and seriousness of these episodes and plaintiff has put forth evidence that would allow a jury to outright reject at least two of the four reasons proffered by defendants. [Filed July 31, 2013.]
LABOR AND EMPLOYMENT — CONTRACTS — ATTORNEY FEES
25-7-1172 Moran v. Davita Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) This case arises out of an employment relationship between plaintiff and defendant Davita Inc. Plaintiff filed a complaint asserting claims of gender discrimination, breach of contract, and statutory and common-law claims. Plaintiff filed a motion to enforce settlement, asking the court to compel defendants to pay $50,000, which she claims was agreed to during settlement discussions. Plaintiff requests additional damages due to her increased tax liability because the settlement was not paid prior to the end of 2012, as the parties had purportedly agreed. She also seeks attorney fees incurred in filing this motion. The motion was referred to Magistrate Judge Goodman, who issued a report and recommendation (R&R) recommending that the settlement of $50,000 be enforced and the parties be ordered to revise the settlement documents to comply with the updated terms of the settlement. She also recommended that plaintiff’s request for an additional payment and for attorney fees be denied. Plaintiff objected. The court adopts the R&R in part, denying plaintiff’s request for an additional award of damages based on her increased tax liability because too much uncertainty exists relating to plaintiff’s income for 2013. The court remands plaintiff’s request for attorney fees. [Filed July 22, 2013.]
LABOR AND EMPLOYMENT — DISCRIMINATION
25-7-1192 Photis v. Sears Holding Corp., U.S. Dist. Ct. (Pisano, U.S.D.J.) (20 pp.) In this employment discrimination case, plaintiff suffered a seizure and alleges that defendants Sears Holding Corporation and Kmart’s human resources director terminated his employment due to disability and perceived disability discrimination. Defendants assert that they terminated plaintiff because he violated the company’s code of conduct. The court finds that plaintiff has not established a prima facie case of discrimination based on a failure to accommodate because not only has plaintiff failed to establish that he is disabled, plaintiff never requested an accommodation. Because plaintiff has not established a prima facie case of disability, perceived disability or reasonable accommodation discrimination, he has failed to establish the first prong of the McDonnell Douglas test, and the court is not required to discuss the other two prongs. However, the court goes on to find that defendants offered a legitimate, nondiscriminatory reason for plaintiff’s termination and plaintiff did not establish that reason was pretextual. Finally, plaintiff has not established that his termination caused an intentional infliction of emotional distress. Defendants’ motion for summary judgment is granted. [Filed July 25, 2013.]
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-1193 Santomenno v. John Hancock Life Insurance Company (U.S.A.), U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Plaintiffs bring this action individually and on behalf of a putative class of plan participants against John Hancock Life Insurance Company (U.S.A.) and its affiliates under the Employment Retirement Income Security Act of 1974 (ERISA), for allegedly charging their retirement plans excessive fees. The court finds that John Hancock was not acting as a fiduciary when taking any of the actions subject to complaint. Because fiduciary status is an essential element of all of plaintiffs’ claims, the court dismisses the complaint with prejudice. [Filed July 24, 2013.]
LANDLORD/TENANT LAW
27-7-1194 St. James Apartments v. Coinmach Corp., U.S. Dist. Ct. (Shipp, U.S.D.J.) (11 pp.) Plaintiff, whose sole partner is a Florida resident, seeks a declaratory judgment that certain disputed lease agreements with defendant, a citizen of both Delaware and New Jersey for purposes of federal diversity jurisdiction, are not legally binding and/or are otherwise unenforceable. The court finds that on the facts here, plaintiff’s residential property manager had no actual authority or no apparent authority to execute the disputed commercial leases and, therefore, the leases are not enforceable. [Filed July 30, 2013.]
LEGAL PROFESSION
04-7-1228 Rodriguez v. Hayman, U.S. Dist. Ct. (Kugler, U.S.D.J.) (8 pp.) Before the court is a motion filed by defendants to hold plaintiff’s counsel, Jeffrey Patti, in contempt for violating the court’s discovery confidentiality order (DCO). Patti represented plaintiffs Ramon and Ivelisse Rodriguez in an action against defendants. All defendants were at some time employees of the New Jersey Department of Corrections (DOC). The court finds that Patti, through his conduct at a witness interview, clearly and deliberately violated the DCO. However, in its discretion, the court will deny defendants’ motion to hold Patti in contempt. It will instead order him to pay the reasonable expenses incurred by defendants as a result of the violation, including the costs of filing this motion. [Filed July 17, 2013.]
LEGAL PROFESSION — ATTORNEY FEES
04-8-1214 Kirsch v. Delta Dental of New Jersey, Third Cir. (Vanaskie, U.S.C.J.) (8 pp.) In this class action filed by dental providers who provided services to members covered by defendant DDNJ plans, asserting unlawful practices, including failing to provide prompt payments of claims, bundling of claims resulting in failure to pay for all procedures provided on the same date, and failing to pay for ancillary services, which resulted in a settlement that did not include monetary relief but did include several “business reforms,” appellant Kirsch objects to the award of $575,000 in attorney fees to class counsel, arguing that the fee award is too high in light of the fact that the class did not receive any monetary damages. The court affirms, finding that the district court did not abuse its discretion in approving the fee award based on a percentage of recovery analysis, in relying on the lodestar information provided by class counsel, or in analyzing the lodestar as a cross-check for the fee award. [Filed July 31, 2013.]
TORTS
36-8-1215 Gunter v. Lumberton Twp., Third Cir. (Shwartz, U.S.C.J.) (12 pp.) In this action arising out of the death of Albert Gunter while in police custody, appellant appeals the district court’s denial of her motion for reconsideration of its grant of summary judgment in favor of the police officers on her excessive-force claim and for punitive damages, grant of the officers’ motion for reconsideration of the order denying summary judgment as to appellant’s wrongful-death claim and grant of summary judgment to the officers on that claim, and grant of the officers’ motion for summary judgment on the claim of deprivation of medical care. The Third Circuit affirms, finding that the record demonstrates that Gunter posed an immediate danger to the arresting officers, that he actively and forcefully resisted arrest, that the officers responded incrementally to his violent resistance in their application of force, use of pepper spray, and use of restraints, and that the district court correctly held that, under these circumstances, the officers’ conduct was objectively reasonable; because it upholds the district court’s decision that the officers did not use excessive force, and that is the only ground on which appellant seeks to reverse the decision on the wrongful-death claim, appellant has not shown a genuine dispute of material fact that precludes granting summary judgment to the officers on this claim; and the record shows that police provided prompt medical care to Gunter and appellant failed to adduce facts showing that the police were deliberately indifferent to his medical needs. [Filed July 31, 2013.]
TORTS — JURISDICTION
36-7-1229 Duell v. Kawasaki Motors Corp. U.S.A., U.S. Dist. Ct. (Simandle, U.S.D.J.) (22 pp.) Citing a lack of personal jurisdiction, defendant East Coast Cycles Inc. moves to dismiss this action alleging that its negligence in assembling a throttle mechanism caused the motorcycle accident that injured plaintiffs’ minor son. The court holds that it has personal jurisdiction over East Coast because East Coast, a Delaware corporation whose principal place of business is in Delaware, conducts business with New Jersey residents via the Internet, knowingly conducts significant business with residents of New Jersey through the Powersports East showroom, a regional motorcycle store it operates in Delaware, targets residents of New Jersey through its website and social media, and advertises in a regional publication distributed in New Jersey. [Filed Aug. 1, 2013.]