STATE COURT CASES
ADMINISTRATIVE LAW—DIVISION OF STATE POLICE
01-2-2429 In the Matter of Dagostino, App. Div. (per curiam) (9 pp.) Appellant appeals from the final administrative decision of the Division of State Police denying his application for a bounty hunter license. The denial is affirmed substantially for the reasons expressed by the administrative law judge, as there is substantial credible evidence in the record to support the conclusion that appellant failed to demonstrate the requisite good character based on the information and the lack thereof on his application form where he answered “no” to the question “have you ever been convicted of any other crime or offense?” even though he had pleaded guilty to a charge of impersonating a public servant just four days before submitting his application and, after successfully retracting his guilty plea while his application was pending investigation, he failed to notify the NJSP that the impersonation charge had been reopened and the matter remanded to the municipal court for disposition, thus rendering his response to the question regarding the pendency of any outstanding charges against him no longer correct. [Decided Jan. 3, 2014.]
ADMINISTRATIVE LAW—GUN PERMITS
01-2-2459 In the Matter of the Application of Perez, App. Div. (per curiam) (7 pp.) Appellant appeals from the trial court’s affirmance of the Paterson Police Department’s denial of his applications for a firearms purchaser identification card and a permit to purchase a handgun. The panel holds that N.J.S.A. 2C:58-3e and f preclude the Paterson Police Department from adding requirements not specifically set forth in Chapter 58 of Title 2C or supplementing the form prescribed by the superintendent of the State Police. Because the trial judge’s decision was based solely on appellant’s failure to complete the department’s special forms calling for submissions not required by the form approved by the superintendent, the panel reverses. Because the department’s letter of denial cites both defendant’s failure to complete all required forms and that issuance would not be in the interest of the public health, safety and welfare, the panel remands for further proceedings on the latter question. [Decided Jan. 8, 2014.]
CONTRACTS
11-2-2430 Romero v. Nunez, App. Div. (Grall, J.A.D.) (3 pp.) Following a bench trial on a complaint alleging breach of contract and reliance on misrepresentations and on a counterclaim alleging failure to pay a promissory note, the judge awarded plaintiff Romero $113,000, plus $200 for costs, and he awarded defendant Nunez $20,000, plus $185 for costs. Subsequently, Nunez filed a motion for a new trial or remittitur, which the judge denied by order entered on April 23, 2012. Nunez then filed a notice of appeal indicating that this appeal is from the April 23 order, not the judgment. The court does not review the judgment or any order other than the one designated in the notice of appeal. Nunez raises three issues on appeal that are attacks on the judgment. But they are not properly before the court. The only issue raised concerning the April 23 order is a claim that “the court erred in not granting a new trial of remitt[i]tur.” Nunez has not provided a copy of his motion for a new trial or remittitur, a transcript of a motion hearing, if there was one, or the judge’s decision on that motion. Thus, the court does not have a record that gives any basis for assessing Nunez’s claim of error in denial of his postjudgment motion. Because that is the only order before the court, Nunez is not entitled to relief. [Decided Jan. 3, 2014.]
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-2442 Middlebrooks v. Bondar, App. Div. (per curiam) (13 pp.) Defendant Walter Bondar, the sole member of defendant Bonpel Builders, was paid $71,543 for carpentry work by Velocita Corporation within 90 days of Velocita filing a voluntary petition for bankruptcy. In response to the bankruptcy trustee’s assertion of a preference claim against the limited liability company, the bankruptcy court entered judgment against the LLC for that amount. Defendant Bondar appeals from the judgment requiring him to return the monies due to the Velocita trustee to plaintiff as receiver for the LLC. The panel affirms, holding that defendant made fraudulent transfers within the meaning of N.J.S.A. 25:2-27b to himself, the LLC’s managing agent, for his own personal, family expenses despite knowing of the bankruptcy judgment and that the LLC was insolvent because it could not afford to pay all of its debts; an insolvent debtor should pay debts owed to unrelated creditors before paying debts owed to corporate insiders; that defendant had no intent to defraud is irrelevant as 25:2-27b does not require actual intent, and defendant is not immune from liability because he conducted his business as an LLC. [Decided Jan. 7, 2014.]
CRIMINAL LAW
14-2-2402 State v. R.P., App. Div. (per curiam) (24 pp.) Defendant appeals from his convictions of sexual assault by sexual penetration of a blood relative between the ages of 16 and 18, criminal sexual contact, and endangering the welfare of a child. The panel reverses because defendant was entitled to a Rule 104 hearing requiring the state to prove the voluntariness of his confession before it was admitted into evidence. If, on remand, the state does not prove beyond a reasonable doubt that the statement was voluntary, the conviction will be vacated and a new trial held, at which the statement will be excluded. If the trial judge determines that the statement was voluntary, the convictions and sentence are affirmed, subject to defendant’s right to seek review of the trial court’s ruling on voluntariness through a separate appeal of the remand decision. [Decided Jan. 2, 2014.]
14-2-2434 State v. Shaw, App. Div. (per curiam) (42 pp., including concurrence by Messano, P.J.A.D.) Pursuant to separate plea agreements, defendants Shaw and Knowles were convicted of third-degree conspiracy to bring stolen property into the state. The state’s primary proofs against defendants, the stolen items, were seized without a warrant outside of a grocery store, where police officers encountered defendants and two companions. As part of their respective plea agreements, Shaw and Knowles expressly preserved their rights to appeal the trial court’s denial of their jointly argued motion to suppress the seized contraband. Because the search and seizure of the items possessed by Shaw, as well as a shoulder bag and its contents, were unconstitutional, Shaw and Knowles are each entitled under their respective plea agreements to have their cases remanded for an opportunity to withdraw their guilty pleas. The trial court incorrectly determined that the shoulder bag was abandoned. The appellate panel reverses the trial court’s suppression ruling, and remands these cases to afford Shaw and Knowles the individual opportunity to withdraw their guilty pleas. Judge Messano wrote a concurring opinion to express his disagreement with the court’s interpretation of “abandonment” under State v. Johnson. [Decided Jan. 3, 2014.]
14-2-2451 Stout v. New Jersey State Parole Board, App. Div. (per curiam) (8 pp.) Stout appeals from the final decision of the New Jersey State Parole Board, denying his application for parole and establishing a 180-month future-eligibility term (FET). Stout was convicted of murder and is serving a sentence imposed in 1982 of life imprisonment with a minimum term of 25 years. Stout’s first parole eligibility date was in 2009. A two-member board panel denied parole and a three-member panel established a FET of 180 months. Stout’s administrative appeal to the full board resulted in its determination to deny parole and impose the 180-month FET. On appeal, the court noted that the board adopted a FET that exceeded the presumptive FET of 27 months by more than 12 years, and held that the 180-month FET was “manifestly excessive, even in light of the confidential materials that were available to the three-member panel and Board,” which the court reviewed. The court added that a long-duration FET, such as established in Stout’s case, was not appropriate under any circumstances and remanded to the board to impose an appropriate term in conformity with the law. After the remand, the board reimposed the 180-month FET. Even applying a deferential standard of review, the appellate panel here cannot affirm the board’s imposition of the same FET. The final action of the board denying parole is affirmed. The FET imposed by the board is reversed and the matter is remanded to the board for a determination as to an appropriate FET. [Decided Jan. 7, 2014.]
EDUCATION
16-2-2431 State-Operated School District of Newark v. Gillespie, App. Div. (per curiam) (4 pp.) Respondent, a tenured teacher with petitioner school district, appeals from the determination of the Office of Administrative Law that it has jurisdiction to determine the tenure charges brought against her by the district. The panel affirms essentially for the reasons expressed by the administrative law judge. [Decided Jan. 6, 2014.]
FAMILY LAW
20-2-2460 M.C. v. G.S., App. Div. (per curiam) (7 pp.) Defendant appeals from a Family Part order that, inter alia, granted her request to withdraw her motion seeking allocation of anticipated day-care expenses and a supervised visitation plan for plaintiff and their son. Finding that the precise nature of defendant’s appeal is not clear, that contrary to her assertion, she was not forced to withdraw her motion and that the withdrawal was completely voluntary, and that her attack on the judge’s preparation for the case was unwarranted, the panel affirms. [Decided Jan. 8, 2014.]
INSURANCE LAW—FRAUD
23-2-2461 Liberty Mutual Insurance Company v. New Jersey, App. Div. (per curiam) (20 pp.) In this case involving alleged insurance fraud, defendants Viking Industrial Security Inc., Viking Alarm Systems, Viking Group Inc., Ralph Day Sr., Ralph Day Jr. and Virginia Day appeal from two orders granting discovery sanctions against them and in favor of plaintiffs Liberty Mutual Insurance Company and LM Insurance Corporation and intervenor New Jersey. As a direct result of these discovery sanctions, partial summary judgment was granted to Liberty Mutual and the state and, following a bench trial, judgments were entered against defendants for damages, penalties, interest and attorney fees. Defendants also challenge these judgments on appeal. Here, the motion judge stated that the sanctions were imposed because defendants had refused to turn over its QuickBooks records for almost a year. The judge found that this “spoliation” of evidence warranted the harsh sanctions imposed. However, the record does not support the judge’s conclusion that “spoliation” occurred. The records were eventually provided, intact, to plaintiffs. Liberty Mutual and the state were able to use the records at depositions, in the preparation of expert reports, and at trial. The appellate panel reverses and remands, finding the motion judge mistakenly exercised her discretion in imposing discovery sanctions that effectively required that judgment be entered in favor of Liberty Mutual and the state when lesser sanctions would have been sufficient to level the playing field. [Decided Jan. 8, 2014.]
LABOR AND EMPLOYMENT
25-2-2444 Polanco v. Board of Review, App. Div. (per curiam) (5 pp.) Polanco appeals from the final agency decision by the Board of Review, Department of Labor, Division of Unemployment and Disability Insurance, concluding that he was ineligible to receive unemployment benefits because of severe misconduct. Polanco worked in a supervisory capacity for Continental Seasoning Inc. (CSI), a food manufacturing company. CSI discharged Polanco for stealing approximately five pounds of sugar. The Appeal Tribunal conducted a telephonic hearing. The examiner listened to testimony from Polanco and Steven Wagner, a CSI plant manager. The appeals examiner rejected Polanco’s testimony that Wagner gave him the sugar as a gift and determined that CSI discharged Polanco from employment for the theft of company property. The appellate panel concludes these findings were properly adopted by the board, and its decision to disqualify Polanco from benefits was supported by substantial, credible evidence and is not arbitrary. The panel rejects Polanco’s contention raised for the first time on appeal that the examiner deprived him of his right to cross-examine Wagner. This argument is belied by the record. The examiner explained to Polanco the Appeal Tribunal hearing procedure, informed Polanco that he could question Wagner, and asked Polanco if he had any questions for Wagner. The panel affirms the denial of benefits. [Decided Jan. 7, 2014.]
25-2-2445 Vargas v. Board of Review, App. Div. (per curiam) (4 pp.) Vargas appeals from the final decision of the Board of Review denying her application for benefits under the unemployment compensation law because she left work voluntarily without good cause attributable to the work. The panel affirms, substantially for the reasons expressed by the board, finding sufficient credible evidence to support the decision that Vargas had failed to meet her burden of showing that her disagreement with her co-workers and her employers’ response—to return the next day to speak with the manager—either alone or collectively justified her voluntary resignation. [Decided Jan. 7, 2014.]
LAND USE AND PLANNING—VARIANCES
26-3-2462 Price v. 414 9th Street Associates Inc., Law Div., Hudson Co. (Sarkisian, J.S.C.) (19 pp.) Plaintiff filed this taxpayer prerogative writ action challenging defendant Union City Board of Adjustment’s approval of a D-2 (nonconforming use) and D-5 (density) variance. Defendant/applicant 414 9th Street Associates Inc. filed the application with defendant board seeking these variances to legalize an existing basement apartment within an existing six-unit multifamily building, which was triggered by a building department complaint. Under Union City’s land development ordinance, the subject property is a nonconforming use because it is located in an R-zone, which permits one- to three-family homes. The proposed variance would allow the defendant/applicant to legalize and change the subject seventh unit from a three-bedroom to two-bedroom apartment. In addition, a two-bedroom unit in a multifamily building requires a minimum of 750 square feet and since the proposed two-bedroom apartment would only be 709 square feet, a density variance was required. The court finds the record supports the board’s findings that “special reasons” exist to support the granting of the variances and that the positive criteria and negative criteria are satisfied. [Decided Jan. 6, 2014.]
LANDLORD/TENANT LAW
27-2-2446 Morris v. Friske, App. Div. (per curiam) (5 pp.) Defendants appeal from the judgment for $2,431 entered against them pursuant to the Security Deposit Act in this action filed after they failed to return the security deposit posted by the tenants to whom they had rented their home within 30 days of expiration of the lease and failed to provide a timely written notice explaining the reasons for withholding the $3,600 deposit. The panel affirms, substantially for the reasons expressed below, finding that the judge made clear and precise factual findings based on credibility determinations and consideration of the evidence presented and there is no basis on which to disturb his factual determinations, and the judge did not err by admitting testimony from plaintiff, to whom two of the tenants had assigned their rights to obtain the deposit, regarding her personal knowledge regarding the condition of the premises and her attempts to obtain the deposit after the tenants vacated. [Decided Jan. 7, 2014.]
MEDICAL MALPRACTICE
29-2-2463 Fallon v. Batsides, App. Div. (per curiam) (6 pp.) Fallon appeals from an order denying his motion to file a notice of claim under the Tort Claims Act (TCA). The claims are based on the alleged malpractice of Dr. Batsides, who is on the faculty of the University of Medicine and Dentistry of New Jersey and the staff of the Robert Wood Johnson Memorial Hospital. The trial court found that Fallon received and signed written notification of Dr. Batsides’ status and knew or should have known that Dr. Batsides was a state employee. The court further concluded that Fallon failed to establish “extraordinary circumstances” to allow the filing beyond the deadline. On appeal, plaintiff refers to the trial court’s passing reference to Fallon’s hospitalization related to his second bypass surgery as “extraordinary.” He argues that the court’s recognition that this hospitalization was a reason for some of the delay precluded application of the statutory time-bar. The appellate panel rejects the contention that any period of postaccrual disability, no matter how brief, suffices to establish grounds for a grant of leave to file a late notice of claim. Here, the absence of any evidence establishing the duration of Fallon’s hospitalization and recovery or the impact of his condition on his ability to file a notice of claim required a denial of the motion. Absent a showing of “extraordinary circumstances” explaining the delay and a lack of prejudice to the state, the court had no authority to permit the filing beyond the deadline. [Decided Jan. 8, 2014.]
PUBLIC RECORDS
52-3-2464 Monson v. Township of Mansfield, Law Div., Burlington Co. (Bookbinder, A.J.S.C.) (14 pp.) Defendant Mansfield denied an Open Public Records Act request by plaintiffs Stephen Monson and Virginia Monson for a copy of any and all videotape recordings or other electronic recordation of the motor vehicle stop and DWI arrest of Anita DiMattia. Plaintiffs move for summary judgment, contending that the video recordings are government records under OPRA and not subject to any exception. Plaintiffs cite the broad public policy behind OPRA as maximizing public knowledge and ensuring that New Jersey citizens remain informed about public affairs. Plaintiffs also point to the broad definition of “government record” under OPRA in arguing the video recordings fall within OPRA’s purview. Plaintiffs maintain that the requested videos are not “criminal investigatory records” and thus are not exempted from disclosure. Defendants argue that the recordings requested by plaintiffs are not subject to disclosure under OPRA. Defendants contend that DiMattia has a reasonable expectation of privacy in the video recordings and that on balance, DiMattia’s reasonable expectation of privacy outweighs the need for public disclosure. However, defendants have not articulated what reasonable expectation of privacy is at stake for DiMattia and have not provided the court with any case law articulating a reasonable expectation of privacy in a DWI stop. The court grants plaintiffs’ motion for summary judgment and orders that the DWI video recordings be released to plaintiffs pursuant to OPRA. [April 1, 2011.]
TAXATION
35-5-2412 Bernard v. Director, Division of Taxation, Tax Ct. (Brennan, J.T.C.) (6 pp.) Plaintiff contests defendant’s denial, as untimely, of his claim for a refund of the New Jersey Gross Income Tax paid for tax year 2002, including interest, based on a gross income tax credit for taxes paid by him to New York state. Plaintiff contends that his refund claim was timely filed because N.J.S.A. 54A:4-1(c) (now 54A:4-1(e)) provides an exception to the three-year statute of limitations for claims for credits resulting from the readjustment of taxes paid to another state. The court holds that pursuant to Bonnano, because plaintiff did not claim a credit for taxes paid to New York on his 2002 New Jersey Resident Income Tax Return, his New Jersey Amended Income Tax Resident Return for 2002, filed in September 2008, was not a readjustment and the three-year limitations period is applicable, rendering his amended 2002 return, filed more than three years after the date of the original 2002 return, untimely. The court grants defendant’s cross-motion for summary judgment. [Filed Dec. 4, 2013.]
35-5-2413 Bogusevich v. Ocean Twp., Tax Ct. (Sundar, J.T.C.) (8 pp.) In this challenge to the Monmouth County Board of Taxation’s affirmance of the local property tax assessment for tax year 2011 on their residential property, in which plaintiffs presented factual and expert testimony to which the township did not object and the court accepted into evidence, the Tax Court finds that the adjustments in the expert’s report for site, gross living area, and basement are subjective without adequate market-based data supporting them and therefore finds that plaintiffs have not proved by a preponderance of the evidence that the county board’s judgment is incorrect and it affirms that judgment. [Filed Dec. 2, 2013.]
TORTS—WRONGFUL DEATH
36-2-2433 Zeller v. New Jersey State Police, App. Div. (per curiam) (23 pp.) Plaintiff Susan Zeller, administratrix of the estate of her deceased husband David Zeller, appeals from the summary judgment dismissal of her wrongful death negligence lawsuit against defendants New Jersey State Police and the New Jersey Turnpike Authority. David was involved in a single-car accident. Another motorist reported the accident and two New Jersey state troopers responded. Before they arrived, David left the scene and the officers were unable to locate him. His body was discovered the next day in a drainage ditch about 150 yards from the accident scene. An autopsy determined that David tested positive for Percocet, cocaine and alcohol. The medical examiner concluded that death occurred due to “acute cocaine toxicity” with “environmental hypothermia” as a significant contributing factor. The claim here is that the two state troopers failed to undertake an adequate search for David, thus, the court must determine whether any statutory immunities apply under the Tort Claims Act. Absent specific guidelines, standard operating procedures or express statutory mandates, the determination of how extensive the scope of the search of a single-car accident scene should be, especially when there is no indication of serious injury, involves discretionary judgment by the responding police officers. Here, the driver had departed the scene under circumstances that reasonably led the troopers to believe he left voluntarily without the need for assistance. The troopers’ discretionary determinations in their investigation of this accident involved no palpably unreasonable conduct and therefore are immunized under N.J.S.A. 59:3-2(d). The defendant-public entities are similarly shielded from liability. [Decided Jan. 6, 2014.]
FEDERAL COURT CASES
ADMINISTRATIVE LAW
01-7-2403 Ahmad v. Colvin, U.S. Dist. Ct. (Shipp, U.S.D.J.) (22 pp.) Plaintiff appeals from the final decision of the commissioner of the Social Security Administration, denying plaintiff’s request for disability insurance benefits (DIB). Plaintiff’s disability arises from his diabetes diagnosis. The administrative law judge did not sufficiently analyze and explain the weight he afforded to plaintiff’s subjective complaints of pain, fatigue and the other limiting effects of plaintiff’s alleged symptoms, even though plaintiff’s medically supported impairments could reasonably be expected to produce the symptoms alleged. Based on the analysis contained in the ALJ’s decision, the court is not able to perform a meaningful review. Therefore, the court remands the case for further proceedings. [Filed Oct. 31, 2013.]
01-7-2414 Richardson v. Commissioner of Social Security, U.S. Dist. Ct. (Bumb, U.S.D.J.) (27 pp.) Plaintiff seeks judicial review of the final decision of the acting commissioner of the Social Security Administration, denying his application for disability insurance benefits (DIB) and Social Security Supplemental Income (SSI). Beginning on July 23, 2008, plaintiff filed applications for DIB and SSI that alleged a disability onset date of March 2, 2007, due to human immunodeficiency virus (HIV) infection, other arthropathies, a torn ligament in his left knee with bone deterioration, and hepatitis C. Because of inconsistencies in the administrative law judge’s consideration of conflicting medical evidence in this case, the court vacates the decision of the commissioner and remands. The ALJ should revisit the inconsistencies on remand and more clearly state her reasoning for discounting the opinion of plaintiff’s treating physician, if that is again her finding in light of her examination of all relevant evidence. Because there are outstanding issues to address on remand with respect to the ALJ’s treatment of the treating physician’s report, the ALJ will also need to reexamine the residual functional capacity determination. [Filed Oct. 29. 2013.]
ADMINISTRATIVE LAW—SOCIAL SECURITY
01-7-2404 Vega v. Commissioner of Social Security, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (11 pp.) Plaintiff appeals from the commissioner’s final determination denying her disability benefits under the Social Security Act based on the administrative law judge’s conclusion that plaintiff was not disabled and that there were jobs in the national economy that she could perform, considering her age, education, work experience and residual functional capacity. The court finds that the ALJ failed to address whether or why he rejected plaintiff’s diagnosis of depression and anxiety, failed to explain whether or why he credited her fibromyalgia diagnosis but not the diagnosis of chronic fatigue syndrome, failed to give specific reasons for the weight given to plaintiff’s statements, and failed to indicate which opinions of the treating physician he credited and which he did not. He did properly evaluation medical evidence of anemia. The panel therefore affirms in part and vacates in part the ALJ’s decision that plaintiff is not disabled, and remands for further proceedings. [Filed Nov. 26, 2013.]
BANKRUPTCY—ATTORNEY FEES
42-6-2435 In re DeSimone, U.S. Bank. Ct. (Steckroth, U.S.B.J.) (7 pp.) In this case, which was converted from Chapter 13 to Chapter 7 prior to confirmation of the debtors’ plan of reorganization, and in which the trustee, who has filed a notice of funds on hand, is holding $10,718 on account of the debtors’ Chapter 13 plan payments and proposes to disburse the funds to the debtors pursuant to 11 U.S.C. § 1326(a)(2), and in which the debtors’ former Chapter 13 counsel filed an objection to the notice contending that he should be paid $7,033.50 pursuant to the court order awarding him fees to be paid as an administrative priority, the court holds that § 1326(a)(2) should be read to provide that when a plan has not been confirmed, payments are to be returned to the debtor after deducting any unpaid claim allowed under § 503(b). Therefore, the trustee’s notice of funds on hand shall be disbursed first in payment of the allowed administrative claim of former counsel and the balance remaining to the debtors, pursuant to 11 U.S.C. § 1326(a)(2). [Filed Dec. 5, 2013.]
CIVIL PROCEDURE
07-7-2415 Custin v. Wirths, U.S. Dist. Ct. (Hammer, U.S.M.J.) (4 pp.) Pro se plaintiff’s motion to seal and/or for a protective order for certain documents that he seeks to have “annexed” to his third amended complaint in an effort to defeat defendants’ two pending motions to dismiss is denied without prejudice because plaintiff’s submission fails to identify what private or public interests warrant sealing these materials, describe a clearly defined and serious injury that would result if the materials are not filed under seal, or explain why a less restrictive alternative is not available, he has failed to include a proposed form of order that includes proposed findings of fact and conclusions of law, and because he improperly seeks to have the court issue an advisory opinion or otherwise provide him with legal advice, and he has not filed the documents at issue under seal so that defendants could properly opposed his motion. Further, to the extent that plaintiff is moving for a protective order under Rule 26(c), his request must be denied because the rule allows a party to seek relief from the court but, by submitting the documents ex parte, he appears to be voluntarily filing documents and does not explain how a protective order is warranted under these circumstances. The court also notes that plaintiff’s letter enclosing the “confidential” documents is an improper ex parte submission. [Filed Dec. 4, 2013.]
07-7-2416 Fisco v. Lamplight Farms Inc., U.S. Dist. Ct. (Arpert, U.S.M.J.) (3 pp.) The court denies plaintiff’s motion to reinstate her complaint, finding that she has not demonstrated justifiable grounds to vacate the order of dismissal where it was her inaction that prompted dismissal—where she failed to serve the named defendants and failed to take any action in response to the court’s notice of call for dismissal—and she has inexplicably waited two years to file her motion to reinstate. [Filed Dec. 4, 2013.]
CIVIL PROCEDURE—DISCOVERY
07-7-2417 Givaudan Fragrances Corp. v. Krivda, U.S. Dist. Ct. (Arpert, U.S.M.J.) (15 pp.) The court denies plaintiff’s motion to compel defendant Mane to produce additional information and documents responsive to its supplemental document requests, finding generally that Mane has not purposely withheld responsive documents or strategically filtered underlying data for self-serving purposes in the litigation but has produced expansive discovery; plaintiff’s supplemental requests reach beyond the scope the case, especially as narrowed by Judge Sheridan’s order granting Mane summary judgment regarding 582 of the 616 formulas that plaintiff claims Mane misappropriated; and at this point, five years into the case, the burden of allowing the expansive, repetitive discovery plaintiff seeks heavily outweighs its benefit. The court then reviews and rejects plaintiff’s specific objections to Mane’s responses to its supplemental requests and finds no basis to impose sanctions. [Filed Dec. 2, 2013.]
CIVIL PROCEDURE—DISCOVERY—SANCTIONS
07-7-2405 Givaudan Fragrances Corp. v. Krivda, U.S. Dist. Ct. (Arpert, U.S.M.J.) (3 pp.) The court denies plaintiff’s motion for an order of civil contempt and imposition of sanctions based on an alleged refusal to provide discovery. Finding that the parties have vigorously disputed multiple discovery issues, and that neither party has been more culpable or dilatory than the other and that defendant Mane has produced extensive discovery and, to the court’s knowledge, has not acted willfully or in bad faith to obstruct the discovery process, the court concludes that imposing sanctions on Mane would be inappropriate. [Filed Dec. 2, 2013.]
CIVIL PROCEDURE—JURISDICTION
07-7-2436 Eviner v. Eng, U.S. Dist. Ct. (McNulty, U.S.D.J.) (11 pp.) In this action in which plaintiff alleges that shares of stock were concealed and misappropriated by defendant-individuals, her sister and brother and his wife, after her father’s death, and that defendant-banks allegedly negotiated and cashed distribution checks with forged signatures, the court grants defendants’ motion in so far as it seeks to transfer venue to the Eastern District of New York, because the allegations, considered as a whole, establish that the essential conduct underlying the complaint occurred not in New Jersey but in New York and that the claims are not properly brought in the District of New Jersey under 28 U.S.C. § 1391(b)(2), venue is appropriate in the Eastern District of New York pursuant to 28 U.S.C. § 1391(b)(1) because the Eng defendants are residents of that district and the bank defendants are residents of New York, and venue in the Eastern District of New York would also be proper under 28 U.S.C. § 1391(b)(2), because a “substantial part” of the underlying events occurred in that district. [Filed Dec. 6, 2013.]
CIVIL RIGHTS
46-7-2406 Richmond v. Salem County Jail, U.S. Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) In this civil rights action arising out of an alleged denial of medical care for an MRSA infection of the foot while plaintiff was being held at the Salem County Jail “due to un-posted bail,” the court reviews plaintiff’s amended complaint pursuant to the Prison Litigation Reform Act and dismisses with prejudice the claims against the Salem County Jail since the jail is not a person subject to suit under § 1983; dismisses the claim against the unnamed nurse who saw plaintiff on April 7, 2012, as the allegations do not allege deliberate indifferent to his serious medical needs since she referred him to the doctor; dismisses the claims against the doctor who say him on April 10 since allegations of mere negligence or medical malpractice are insufficient to show deliberate indifference to a serious medical need; permits to proceed the claim against the unnamed nurse who saw plaintiff on April 12 since his allegation that she failed to provide treatment after he advised her that he could not walk is sufficient to state a claim against her; and dismisses the claims against the medical services provider at the jail as it cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious liability and plaintiff does not allege that there was a relevant policy or custom of the provider that caused the constitutional violation he alleges. [Filed Dec. 2, 2013.]
CIVIL RIGHTS—MEDICAL MALPRACTICE
46-7-2418 Concepcion v. CFG Health Systems, U.S. Dist. Ct. (Clark, U.S.M.J.) (7 pp.) Before the court is plaintiff’s motion for leave to amend the complaint to remove those causes of action arising under 42 U.S.C. §§ 1981, 1983 and 1988, to substitute causes of action arising under the New Jersey Civil Rights Act, and to remand this action to the state court. Defendants oppose plaintiff’s motion. This case involves civil rights violations, as well as claims for medical malpractice and negligence in connection with the death of Julio Concepcion (the decedent), an inmate of the Essex County Department of Corrections. Plaintiff, as administrator of the decedent’s estate, first filed this action in the Superior Court of New Jersey. Plaintiff was given leave to file an amended complaint against these defendants. Defendants removed the action to this court on federal-question jurisdiction. Here, the court finds plaintiff’s amendment to be proper. Plaintiff’s lone amendment to substitute the New Jersey Civil Rights Act for the claims pleaded pursuant to the U.S. Constitution has not been brought with undue delay, bad faith or dilatory motive. The amendment does nothing to change the substance of plaintiff’s allegations and, as such, causes no prejudice to defendants. In addition, the court is satisfied that the effect of amendment—remand—likewise would not prejudice defendants. Therefore, plaintiff’s motion is granted in part. The court shall recommend to the district court that this action be remanded to state court. [Filed Oct. 28, 2013.]
CIVIL RIGHTS—§ 1983—TORTS
46-7-2437 Drisco v. City of Elizabeth, U.S. Dist. Ct. (Salas, U.S.D.J.) (19 pp.) Pursuant to the Prison Litigation Reform Act, the court reviews this action filed by plaintiff, presently incarcerated at Talbot Hall in Kearny, asserting claims arising out of defendant’s arrest and detention for robbery based on the allegedly false testimony of Det. Koczur given in retaliation for plaintiff’s previous acquittal on charges submitted by Koczur. The claims against the fictitious defendants are dismissed because no factual allegations are made with respect to any of them. The claims of failure to train or supervise are dismissed because plaintiff has alleged nothing more than that an individual police officer was motivated by malice to wrongfully accuse plaintiff of a crime by presenting false evidence. The claims against the police department, the mayor, and the city are dismissed because plaintiff has failed to allege any facts that would suggest that any of the municipal, supervisory or fictitious defendants had any personal involvement in his arrest and indictment or were responsible for any policy or custom that would render them liable for any of the alleged claims. The federal and state claims for false arrest and false imprisonment are dismissed with prejudice as untimely. The malicious-prosecution charge against Koczur may proceed because the allegations that he gave false testimony to the grand jury because he was disgruntled by the earlier acquittal are sufficient to permit these claims to proceed beyond the screening stage. Because plaintiff has not pleaded any facts suggesting agreement or conspiracy by any two defendants, the § 1985 claim is dismissed. The state law claims for negligence and violations of the N,J, Constitution are dismissed without prejudice because they are too vaguely pleaded to permit evaluation. The claim of abuse of process is dismissed because plaintiff has failed to allege any facts suggesting the Koczur used any court-issued process in a coercive or illegitimate manner. The claim of intentional infliction of emotional distress is dismissed without prejudice because plaintiff has failed to plead that he suffered any particular emotional distress as a result of Koczur’s actions. [Filed Dec. 9, 2013.]
CONTRACTS
11-7-2420 Spacemax International v. Core Health and Fitness, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (5 pp.) Plaintiff Spacemax International filed a motion for an order to show cause as to why a preliminary injunction should not be issued against defendants Core Health and Fitness, Central Fitness Industrial Co., Ltd, and Myung-Bong Lee, enjoining them from terminating their business relationship with plaintiff and enjoining defendants further from entering into a new exclusive distributorship agreement. Plaintiff’s application for a preliminary injunction is denied where plaintiff has not sufficiently demonstrated that it will suffer irreparable harm in the absence of a preliminary injunction. Plaintiff’s primary argument is that without intervention from the court, it will lose its significant market share in Korea and potentially face a collapse of its business as a whole. However, a preliminary injunction is not an appropriate remedy in this case because any harm plaintiff has suffered is compensable by money damages. This is especially true where there is an existing relationship between the parties. Plaintiff itself admits that defendants made no promise of business beyond 2014, limiting any relief in duration. Even if plaintiff were to prevail on every claim and be granted injunctive relief, defendant-manufacturers would not be bound beyond 2014. To hold otherwise would be to force the parties to extend a contract beyond its terms. [Filed Oct. 28, 2013.]
11-7-2419 New Jersey Best Phone Cards Corp. v. NobelTel, L.L.C., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (10 pp.) NobelTel, L.L.C., and Nobel Inc. filed a motion to dismiss the complaint filed by New Jersey Best Phone Cards Corp. N.J. Best purchases and resells international telephone calling cards. Nobel and NobelTel supply and distribute international calling cards, PIN numbers, and telecommunication services. NobelCom, L.L.C., issues calling cards and is not a party here. In 2009, N.J. Best and NobelCom entered into a wholesale distributor agreement and N.J. Best became an authorized distributor of calling cards issued by NobelCom. NobelTel sued N.J. Best in Superior Court of New Jersey, alleging that N.J. Best failed to make payments due under the wholesale distributor agreement. The parties resolved the action by stipulation. NobelCom then sued N.J. Best in the Superior Court of California, claiming N.J. Best owes $1,639,105.24. Subsequently, N.J. Best filed this action in the Superior Court of New Jersey. The action was removed to this court. Applying California law, the court finds that plaintiff’s breach-of-contract claim against NobelTel fails. NobelTel was previously assigned the interest in the wholesale distributor agreement but it was not the assignee when this action commenced. Thus, NobelCom is the proper entity to be sued as the allegedly breaching party. Further, NobelCom previously filed suit in California and the subject of that suit is the same wholesale distributor agreement here. The appropriate avenue to address contract disputes regarding the wholesale distributor agreement is in the California action. Also, plaintiff has failed to show that defendants received a benefit and unjustly retained it at the expense of plaintiff so as to sustain its claim for unjust enrichment. Lastly, plaintiff has failed to plead its fraud claim with particularity. Defendants’ motion to dismiss is granted. [Filed Nov. 4, 2013.]
11-7-2452 Hofmann v. Dratel, U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) In this breach-of-contract action alleging that defendants failed to pay plaintiff sums due under an agreement between them to settle plaintiff’s claims that defendant, a broker/dealer, had mismanaged plaintiff’s funds, the court denies plaintiff’s motion for default judgment, filed after defendants failed to timely file an answer, finding that defendants have submitted two meritorious defenses—that the agreement was signed under duress and that the court lacks personal jurisdiction over the matter because defendant never did business in New Jersey and is a New York resident, denying default judgment will not unduly prejudice plaintiff, and that miscommunication between defendant and his wife caused the default, which facially was negligent failure not culpable conduct. [Filed Dec. 9, 2013.]
CRIMINAL LAW—CORRECTIONS
14-7-2441 Cardona v. Warden—MDC Facility, U.S. Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court reviews the complaint of plaintiff, previously incarcerated at the Federal Correctional Institution at Fort Dix, alleging a denial of medical care, and holds that it may proceed in part since, in alleging that defendant Dr. Lopez denied him therapy and pain medication and prevented him from seeing an orthopedist even after such an appointment had been scheduled in connection with his broken leg, plaintiff has sufficiently alleged a claim for deliberate indifference to a serious medical need, and, in alleging that Warden Zickefoose was made aware of ongoing violations through his written requests per facility procedure, he has stated a claim of deliberate indifference against her. The claim against Zickefoose’s successor is dismissed as plaintiff has not alleged that he was ever given sufficient knowledge of the purported ongoing constitutional violation. His claim against the warden of the MDC-Brooklyn is dismissed as it arises out of a completely separate incident at a separate facility and resulted in separate injuries and was improperly joined. [Filed Dec. 6, 2013.]
IMMIGRATION LAW
51-7-2407 Assad v. Holder, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) Petitioner Nichola Assad, a U.S. citizen, filed a petition for writ of mandamus to compel the government to issue a final decision on the visa application of her husband Neil Assad. Respondents, the U.S. attorney general, the district director of U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of State, and the U.S. Embassy in Guyana filed a motion to dismiss. Respondents argue that the doctrine of consular nonreviewability deprives the court of jurisdiction to review the acts of the U.S. embassy. The court disagrees. The court has jurisdiction over suits that challenge the authority of the consul to take or fail to take an action. Respondents also argue that the finding of temporary ineligibility was a final refusal and that mandamus is therefore inappropriate. However, the court finds the U.S. embassy failed to execute its nondiscretionary duty to issue a visa or a final refusal; this is evident from its failure to comply with its own refusal procedures and the language of its communications with the Assads. Therefore, the court has jurisdiction to grant petitioner relief via writ of mandamus. Since there is no action that the court can compel USCIS to take, it has no subject-matter jurisdiction to grant relief with respect to USCIS. The petition contains no substantive allegations pertaining to an act or omission of the attorney general, thus, petitioner has failed to state a claim against the attorney general. The motion to dismiss is granted as to the U.S. attorney general and USCIS. The motion is denied as to the Department of State and the U.S. embassy in Guyana. [Filed Nov. 1, 2013.]
51-7-2421 Mullings v. Tsoukarts, U.S. Dist. Ct. (Linares, U.S.D.J.) (6 pp.) The court grants plaintiff Ameika Mullings’ application to proceed in forma pauperis and denies the application as to plaintiffs Sakima Mullings and Peter Mullings as procedurally deficient and dismisses the complaint as to them without prejudice. The complaint asserts that plaintiffs, natives of Jamaica, were improperly denied derivative citizenship and seeks declaratory judgment that they are citizens of the United States. Plaintiffs claim that due to “misconduct” and “inexplicable delay on the part of INS,” they reached the age of 18 by the time their mother was granted citizenship and were thus no longer eligible for derivative citizenship under the Immigration and Nationality Act. The court proceeds to screen the complaint only with respect to those claims on behalf of Ameika. Plaintiff’s complaint alleges a violation of her right to derivative citizenship pursuant to 8 U.S.C. § 1432(a). She seeks a declaratory judgment of U.S. citizenship under 28 U.S.C. § 2201. Suits for declaratory judgment as to citizenship by a plaintiff who is the subject of ongoing removal proceedings are barred. Ameika Mullings is in removal proceedings as an alien who has been convicted of an aggravated felony. The complaint does not set out facts that allow the court to determine whether the denial of derivative citizenship is at issue in the removal proceedings or whether it arose in connection with said proceedings. Thus, the court cannot determine whether it has subject-matter jurisdiction to review the denial of derivative citizenship and dismisses Ameika’s complaint without prejudice. [Filed Oct. 28, 2013.]
INSURANCE LAW
23-7-2408 Dawn Restaurant Inc. v. Penn Millers Ins. Co., U.S. Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) In this action seeking insurance coverage for collapsed roof trusses and asserting claims for breach of contract and breach of the covenant of good faith and fair dealing, in which defendant counterclaimed alleging violations of the New Jersey Insurance Fraud Prevention Act, and in which both parties’ motions for summary judgment were denied after the court found material issues of disputed fact, defendant moves for reconsideration of the order denying summary judgment in its favor with regard to plaintiff’s bad-faith claim. Finding that it inadvertently overlooked the authority cited by defendant that a plaintiff must be able to establish a right to summary judgment on the substantive claim for coverage in order to establish a bad-faith claim and that an insured cannot maintain a cause of action for bad faith where, as here, there are material issues of disputed fact precluding summary judgment, the court grants the motion to reconsider, grants summary judgment in part to defendant on the bad-faith claim, and denies summary judgment in part without prejudice to defendant on plaintiff’s remaining claims. [Filed Dec. 2, 2013.]
23-7-2422 The Residences at Bay Point Condominium Association Inc. v. The Standard Fire Ins. Co., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (32 pp.) Defendant moves for summary judgment dismissing with prejudice plaintiff’s federal breach of contract, New Jersey state consumer fraud, and New Jersey state negligence claims arising from the 2013 reformation of four standard flood insurance policies issued by defendant as part of the National Flood Insurance Program. The court finds that (i) the reformation of two of plaintiff’s four SFIPs was mandated by federal law and plaintiff’s breach-of-contract claim based on those two policies is dismissed with prejudice, and judgment is entered for Standard regarding those two policies; (ii) plaintiff has introduced new arguments in briefing, not contained within the complaint, that may present genuine issues of material fact precluding summary judgment on plaintiff’s breach-of-contract claim for the other two of the four policies, and, accordingly, plaintiff’s breach-of-contract claim based on those two policies is dismissed without prejudice with leave given to plaintiff to file an amended complaint; and (iii) plaintiff’s state law claims are preempted by Federal Emergency Management Agency regulations promulgated under the National Flood Insurance Act of 1968 and are dismissed. [Filed Dec. 4, 2013.]
23-7-2453 Government Employees Ins. Co. v. MLS Medical Group, L.L.C., U.S. Dist. Ct. (Chesler, U.S.D.J.) (21 pp.) In this action asserting claims for violation of the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 et seq.; violation of the federal Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. § 1962(c); common-law fraud and unjust enrichment arising out of defendant’s allegedly fraudulent treatment and billing protocol, and asserting a claim pursuant to the Declaratory Judgments Act asking the court to declare that more than $1 million in pending claims that have been submitted to GEICO by MLS are fraudulent bills generated by a kickback scheme and/or by medically unnecessary treatment, the court grants defendant’s motion to dismiss the declaratory judgment claim, finding it would be inappropriate to entertain the claim because to do so would be to disrupt the state statutory scheme entitling defendant to arbitrate disputes concerning entitlement to PIP benefits and because lumping an unknown number of PIP disputes together into one declaratory judgment claim would be asking the court to make blanket determinations about claim-specific questions. The court also finds that the Insurance Fraud Protection Act claim must be dismissed for failure to meet the pleading requirements of Rule 8(a) as the complaint lacks factual allegations as to statements actually made by MLS in support of PIP claims and the circumstances that would plausibly establish that such statements were fraudulent. The RICO claim based on mail fraud arising out of the submission of claims by mail is dismissed because the complaint lacks factual allegations of fraud tailored to why any individual diagnosis or treatment and its corresponding billing was false, and, to the extent the fraudulent nature of the bills is based on the allegation that MLS obtained its GEICO-insured patients as a result of a kickback arrangement with referring doctors, the complaint fails to allege fraudulent billing with any particularity. For the same reasons, the common-law claims of fraud and unjust enrichment predicated on the allegations pleaded in support of the IFPA and RICO claims are dismissed. Plaintiff is granted leave to file a second amended complaint. [Filed Dec. 6, 2013.]
LABOR AND EMPLOYMENT
25-7-2409 Pursell v. Spence-Brown, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (10 pp.) Pro se plaintiffs initiated this suit against multiple defendants, alleging that they violated state and federal labor and employment laws, including the Labor Management Relations Act and the Employee Retirement Income Security Act (ERISA), involving a collective bargaining agreement. Here, defendants International Brotherhood of Teamsters (IBT) and Communications Workers of America Savings and Retirement Trust (trust) move separately to dismiss the complaint. On its motion, IBT contends that it does not owe plaintiffs any contractual or other union-related duties because it is not the union with which plaintiffs contracted. The trust argues that it is also not a proper defendant because it owes no duties to plaintiff as a fiduciary. Defendants’ motions to dismiss are granted. Plaintiffs have not adequately pleaded facts establishing that IBT is an agent of Teamsters 115, and, therefore, claims against IBT are dismissed. Although the trust is a proper defendant, plaintiffs failed to state a claim against the trust. [Filed Nov. 1, 2013.]
25-7-2423 Falcon v. Continental Airlines, U.S. Dist. Ct. (Linares, U.S.D.J.) (13 pp.) Plaintiff, an openly homosexual man employed by defendant as a flight attendant, filed this action alleging discrimination on the basis of sexual orientation in violation of the New Jersey Law Against Discrimination, batter and intentional infliction of emotional harm after he was told that he could not work a flight to Paris with his Mohawk haircut. Defendants move for summary judgment dismissing his complaint. Summary judgment as to the NJLAD claim is denied because since plaintiff asserts that his supervisors were aware of his sexual orientation and Continental does not specifically admit or deny this assert, whether defendants were aware of plaintiff’s sexual orientation and subjected him to a different grooming standard as a result of his sexual orientation raises a factual question that would be inappropriate to resolve on a motion for summary judgment, and, construing the record in the light most favorable to plaintiff, there is a genuine issue of material fact as to whether the incident was sufficiently severe to affect plaintiff’s psychological stability, and that the NJLAD does not bar Continental from enforcing a grooming standard does not, as a legal matter, defeat plaintiff’s claim that the standard was applied to him discriminatorily. Continental’s motion for summary judgment is granted as to the battery claim because plaintiff admits that he asked a fellow employee to cut his hair and thus the haircut did not constitute an “unauthorized invasion” of his person. Summary judgment is granted on the IIEH claim because Continental’s alleged discriminatory conduct does not approach the conduct that the New Jersey courts have determined is sufficiently outrageous or extreme to sustain such a claim. [Filed Dec. 4, 2013.]
25-7-2424 In re Morgan Stanley Smith Barney Wage and Hour Litigation, U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) In this multidistrict litigation made up of several putative wage-and-hour class actions alleging overtime violations and improper wage deductions by defendants, the court grants in part and denies in part defendants’ motion to dismiss the improper wage-deduction claims under New York, New Jersey and Connecticut law. The court finds that plaintiffs have not (with one exception) plausibly stated a direct wage-deduction claim under New York, New Jersey or Connecticut law because they impliedly contracted with defendants and pursuant to those contracts, defendants did not (with one exception) make deductions from plaintiffs’ “wages” as the deductions for assistant compensation and trading errors were made before, not after, plaintiffs’ compensation was “earned” or “accrued.” Therefore, the court dismisses all direct deduction claims based on assistant compensation and trading errors with prejudice. The court dismisses the indirect wage-deduction claim under New York law based on defendants’ failure to reimburse plaintiffs for money spent on client dinners and postage because plaintiffs do not plausibly allege that they were required to make the expenditures for which they were not reimbursed. The court dismisses with prejudice the claims of indirect deduction under Connecticut and New Jersey law because the relevant statutes concern instances in which employers cut into a paycheck for various purposes and do not concern instances in which employers fail to reimburse employees’ expenses and plaintiff’s therefore have not stated claims for improper indirect wage deductions under either state’s law. [Filed Dec. 4, 2013.]
25-7-2465 Barrios v. Suburban Disposal Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) In this wage-and-hour case against a waste-collection company and its executives, containing a putative collective-action claim under the Fair Labor Standards Act and a putative class-action claim under the New Jersey Wage and Hour Law, both of which allege a failure to pay overtime at time-and-a-half, the court grants plaintiffs’ motion to conditionally certify an opt-in collective action under the FLSA, holding that plaintiffs have made the modest factual showing required for conditional certification through their submission of three affidavits stating that the affiant worked at SDI, worked for more than 40 hours per week, and was not paid overtime, and the testimony of SDI’s president that its drivers and drivers’ helpers are exempt from the overtime provisions of the FLSA and the NJWHL. [Filed Dec. 11, 2013.]
25-7-2466 Barrios v. Suburban Disposal Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (11 pp.) In this wage-and-hour case against a waste-collection company and its two executives, containing a putative collective-action claim under the Fair Labor Standards Act and a putative class-action claim under the New Jersey Wage and Hour Law, both of which allege a failure to pay overtime at time-and-a-half, the court denies defendants’ motion for summary judgment, finding that there are genuine issues of material fact as to the applicability of the FLSA’s Motor Carrier Act Exemption and the NJWHL’s Trucking Industry Employer Exemption to plaintiff’s overtime claims where defendants have failed to show that plaintiffs worked in interstate commerce. [Filed Dec. 11, 2013.]
25-7-2467 Belton v. Palisades Medical Center, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) The court grants defendants’ motion to dismiss pro se plaintiff’s amended complaint alleging that she suffered racial and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 in connection with her termination for using profanity, finding that the additional details in the amended complaint still do not state a claim under Title VII because plaintiff still has not pleaded that she was a member of a protected class since her status as one who was not a personal friend of her supervisor is not a protected status. The court denies plaintiff’s motion for appointment of pro bono counsel because she does not cross the initial threshold of articulating a federal case with arguable merit in fact and law. The court declines to exercise supplementary jurisdiction over the remaining state law claims. [Filed Dec. 11, 2013.]
25-7-2468 McQuilkin v. Delaware River Port Authority, U.S. Dist. Ct. (Simandle, U.S.D.J.) (47 pp.) Plaintiff alleges that his employer, defendant Delaware River Port Authority (DRPA), retaliated against him after he questioned whether he had been denied tuition reimbursement because of his age. Plaintiff alleges that, after he successfully challenged the DRPA tuition reimbursement decision, defendant retaliated against him by setting his salary as a grants specialist too low, denying him raises and failing to create the position of grants administrator for him, all in violation of the retaliation provision of the Age Discrimination in Employment Act (ADEA). Defendant brings this motion for summary judgment, arguing that the claims are time-barred and, in the alternative, that plaintiff fails to establish a prima facie case of retaliation. The court finds defendant is entitled to summary judgment to the extent plaintiff’s claims depend on the initial setting of his salary as a grants specialist or for failing to create the position of grants administrator, which did not exist within the DRPA. These claims fail because they are untimely, plaintiff cannot establish these are materially adverse actions, or both. However, summary judgment is denied to the extent plaintiff alleges defendant denied him a raise as a grants specialist in retaliation for his allegation of age discrimination. As material facts going to willfulness are in dispute, summary judgment is also denied as to liquidated damages. [Filed Nov. 6, 2013.]
LABOR AND EMPLOYMENT—EMPLOYEE BENEFITS
25-7-2438 Northern New Jersey Orthopaedic Specialists v. Health Net of New Jersey Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (6 pp.) This is an action concerning the allegedly improper underpayment or nonpayment of health-care benefits under an employee health benefit plan (the plan) governed by the Employee Retirement Income Security Act of 1974 (ERISA). Defendant Health Net is an insurance company that administers benefits for the plan. Plaintiffs are providers of health-care services and assignees of a patient. Plaintiffs do not participate in any provider network established by Health Net. Plaintiffs seek benefit payments for services performed in 2009 and 2010. Some of the relevant terms of the plan differ for the years 2009 and 2010. Health Net filed a motion for summary judgment against all plaintiffs. The court finds that Health Net has carried its burden of proving that plaintiffs Northern New Jersey Orthopaedic Specialists (NNJOS) and Michael Most, M.D., failed to exhaust administrative remedies. As to NNJOS and Most, the motion for summary judgment is granted. Plaintiffs Marc Cohen, M.D., and Bergen Anesthesia & Pain Management have offered no evidence that, under the terms of the 2010 plan, the denial of benefits to them was arbitrary or capricious. As to Cohen and Bergen, the motion for summary judgment is granted. The state law claim for negligent misrepresentation is preempted by ERISA and Health Net’s motion for summary judgment on that claim is granted. [Filed Nov. 1, 2013.]
25-8-2454 Van Deventer v. Johnson & Johnson Pension Committee, Third Cir. (Sloviter, U.S.C.J.) (8 pp.) Van Deventer worked for Johnson & Johnson until he became disabled. He was enrolled in the Long Term Disability Income Plan for Choice Eligible Employees of Johnson & Johnson. During the first 12 months of disability, the claimant must only show that he is unable to perform the essential functions of his regular occupation with or without reasonable accommodation. After one year, the claimant must show that he is unable to perform any job in the company for which the claimant is, or could reasonably become, qualified with or without reasonable accommodation. Van Deventer was awarded benefits for one year. Thereafter, the plan administrator determined Van Deventer was not so disabled as to be unable to perform “any job” as required by the plan for an award of long-term disability benefits. After his appeals were denied, Van Deventer filed a complaint against the pension committee alleging that the company terminated benefits owed to him from the plan pursuant to § 502(a)(1)(B) of ERISA. On Van Deventer’s appeal, the circuit panel affirms the district court’s order granting the pension committee’s motion for summary judgment and denying Van Deventer’s motion for summary judgment. The panel rejects Van Deventer’s arguments that under Miller v. American Airlines Inc., the district court did not have authority to remand the case to the plan administrator and that the denial of benefits was arbitrary and capricious. As opposed to Miller, where benefits were terminated after four years, the plan administrator here denied Van Deventer long-term benefits in the first instance. Moreover, the district court never concluded that the plan administrator abused his discretion, as in Miller. [Filed Nov. 4, 2013.]
LABOR AND EMPLOYMENT—WHISTLEBLOWER LAW
25-7-2439 Brewer v. Lanigan, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) Brewer brings this action against state actors alleging retaliation, workplace harassment and termination of his employment over a disagreement about his job title at the Hudson County Juvenile Detention Center. An administrative law judge upheld Brewer’s termination, finding the county had proved by a preponderance of the evidence that Brewer had a problem with chronic and excessive absenteeism and that progressive discipline did not result in improvement. Brewer, pro se, seeks relief under 42 U.S.C. § 1983, the New Jersey Civil Rights Act (NJCRA), and the New Jersey Conscientious Employee’s Protection Act (CEPA). He also seeks damages for negligent and intentional infliction of emotional distress and malicious abuse of process. He requests pro bono counsel. Defendants filed motions to dismiss. The New Jersey Tort Claims Act bars plaintiff’s claims for negligent and intentional infliction of emotional distress and for malicious abuse of process because plaintiff failed to serve a notice of claim. Plaintiff’s complaints about his job title are purely private and do not implicate harm to the public; his CEPA claim therefore fails. Plaintiff alleges workplace retaliation based on complaints about his title but articulates no constitutional or statutory guarantee of protection based on his status as one who had a disagreement with his employer about his job title. Without an underlying right to vindicate, § 1983 and NJCRA do not apply. Plaintiff’s request for pro bono counsel is denied. Defendants’ motions to dismiss are granted. [Filed Nov. 4, 2013.]
25-7-2440 Gomez v. Town of West New York, U.S. Dist. Ct. (Martini, U.S.D.J.) (11 pp.) Plaintiff brings this action against defendants, the town of West New York, Mayor Felix Roque, Deputy Mayor Silvio Acosta, Commissioner FiorD’Aliza Frias, and the mayor’s son, Joseph Roque, alleging violations of state and federal constitutional rights, as well as violations of New Jersey’s Conscientious Employee Protection Act (CEPA). Defendants filed a motion to dismiss. Plaintiff alleges that defendants harassed him and terminated him from a position as the UEZ coordinator for the town of West New York for (1) refusing to use public resources to fundraise for Mayor Roque’s private not-for-profit organization; (2) making a complaint to the Public Employees Occupations Safety and Health Department (PEOSHA); (3) speaking about the misuse of public resources and other alleged abuses in Roque’s government; and (4) contributing to a website called www.recallroque.com. The court denies defendants’ motion to dismiss. Plaintiff’s claims under 42 U.S.C. § 1983 for violations of his First Amendment rights and under the New Jersey Civil Rights Act (NJCRA) for violations of parallel rights guaranteed under Article I of the N.J. Constitution may proceed. Plaintiff claims under 42 U.S.C. § 1983 and NJCRA for removal from his job without procedural due process also survive dismissal. Plaintiff’s claims under CEPA also may proceed. [Filed Nov. 4, 2013.]
LEGAL PROFESSION
04-7-2425 RD Legal Funding v. Barry A. Cohen P.A., U.S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) In this action asserting claims for breach of contract and breach of personal guaranty arising out of defendant-firm and its shareholder’s alleged failure to forward to plaintiff—which is in the business of providing funding to attorneys and law firms by purchasing their legal fees receivables earned generally through settlements—legal fees received in three specific actions pursuant to a master agreement between the parties, the court denies defendants’ motion to dismiss the second amended complaint pursuant to Rule 12(b)(6) and for failure to meet the pleading requirements of Rule 8(a), finding that (1) plaintiff has narrowed its seemingly duplicative six breach-of-contract claims against the firm into three straightforward breach-of-contract claims and the three breach-of-contract claims against the firm and the claim of breach of personal guaranty against Barry Cohen meet the Rule 8(a) pleading requirement inasmuch as they are each supported with sufficient factual content to provide defendants with adequate notice of the nature of the claims being asserted; and (2) defendants’ argument that the breach-of-contract claims against the firm fail to state a claim on which relief may be granted because the allegations of default on which they are based conflict with the exhibits attached to the second amended complaint is inappropriate on a Rule 12(b)(6) motion since it asks the court to test the actual merits of plaintiff’s breach-of-contract claims. [Filed Dec. 2, 2013.]
PRODUCT LIABILITY
32-7-2455 Durso v. Samsung Electronics America Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (23 pp.) Plaintiffs assert this class action against Samsung based on the alleged defective design, manufacture, advertisement and sale of certain Samsung washers. The amended class-action complaint (ACAC) asserts violation of New Jersey’s Consumer Fraud Act (NJCFA); violation of the Texas Deceptive Trade Practices Act (DTPA) (for the Texas subclass); fraudulent concealment/nondisclosure; breach of implied warranties; breach of express warranties; and negligent misrepresentation. Defendant’s motion to dismiss is granted in part and denied in part. Defendant’s motion to dismiss plaintiffs’ claims for lack of standing is denied; dismissal of plaintiffs’ claims related to products plaintiffs did not purchase or defects plaintiffs did not suffer would be premature. Defendant’s motion to dismiss the NJCFA count on grounds that a causal connection has not been established is denied. The DTPA claim is dismissed without prejudice where the claims are too ambiguous to show actual damages. Plaintiffs’ fraud-based claims are dismissed without prejudice based on Fed. R. Civ. P. 9(b)’s heightened pleading requirement. Plaintiffs’ claim of negligent misrepresentation based on affirmative misrepresentations survives the motion to dismiss. The warranty claims are dismissed without prejudice where the ACAC is factually deficient to support plaintiffs’ claims for breach of implied and express warranties; also, the court is unable to determine whether plaintiffs’ claims are brought within or outside the warranty period. Defendant’s motion to strike plaintiffs’ class allegations is denied as premature. [Filed Nov. 6, 2013.]
RESIDENTIAL AND COMMERICAL REAL ESTATE
34-7-2456 G&S Livingston Realty Inc. v. CVS Pharmacy Inc., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (8 pp.) This action stems from a lease G&S entered into with lessee Linens ’N Things Inc. for retail space. Melville Corporation, Linens’ parent company, executed a guaranty that required it to pay rent and other sums due under the lease to G&S if Linens defaulted. CVS, as successor to Melville, assumed the guaranty. Following Linens’ default on the lease, G&S brought suit against CVS alleging, inter alia, that CVS breached the guaranty, and sought declaratory judgment that CVS was in material breach of the guaranty and responsible for all accruing payments and expenses due under the lease. CVS filed counterclaims against G&S seeking declaratory relief and argued that it was entitled to proceed under a co-tenancy provision of the lease. The district court entered an order that denied G&S’s motion and granted in part and denied in part CVS’s motion. The Third Circuit vacated the order and remanded the action “for entry of judgment against, and assessment of amounts due and owing from, CVS.” The Third Circuit opinion requires the entry of judgment in favor of G&S; however, the parties disagree on the assessment of the amount CVS owes and whether G&S has adequately mitigated damages. Here, plaintiff’s motion for entry of judgment is granted in part and denied in part. The court enters judgment for G&S but the specific amount will require additional assessment. Defendant’s cross-motion for limited discovery on damages is denied. [Filed Nov. 6, 2013.]
34-7-2469 Polkampally v. Countrywide Home Loans Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (22 pp.) Defendants move to dismiss plaintiffs’ complaint arising out of the purchase of two residential properties. Plaintiffs obtained a mortgage loan on the first property that was originated by defendant Greenpoint Mortgage Funding. The mortgage was securitized and serviced by defendants EMC Mortgage Corporation and JPMorgan Chase Bank. Plaintiffs obtained a mortgage loan on the second property from defendant Countrywide Home Loans Inc. This loan was also securitized after closing, and was serviced by defendant Countrywide Home Loans Servicing and its successor, defendant Bank of America (BOA). The mortgage instruments named Mortgage Electronic Registration System (MERS) as the beneficiary of the deed, as nominee of the lenders. The complaint alleges that MERS is designed to circumvent certain laws and legal requirements. Plaintiffs seek a declaratory judgment voiding, rescinding or reforming the mortgages and finding the loans are unenforceable, as well as a judgment for actual damages, treble damages, costs and attorney fees. Defendants argue that plaintiffs’ complaint fails to state a claim, and that the claims are time-barred. Greenpoint also seeks dismissal on the ground that plaintiffs failed to join an indispensable party. The BOA defendants assert they have never been served with process. The count alleging violations of TILA is dismissed with prejudice because the court finds it would be futile to attempt to cure the defect of the claims being time-barred. The remainder of the complaint is dismissed without prejudice to plaintiffs’ filing of an amended complaint. [Filed Nov. 6, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE—DISCRIMINATION
34-7-2470 McClees v. Urban Financial Group, U.S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) In this action asserting that plaintiff’s failure to obtain a reverse mortgage is evidence of discrimination against him by defendants, the court grants defendants’ motion to dismiss, holding that the claim of discrimination under Title VII must be dismissed because plaintiff is not employed by either defendant; the claim under 18 U.S.C. § 241 must be dismissed because it is a criminal statute that does not provide a cause of action for civil liability; the claim under the Declaration of Independence must be dismissed as the Declaration of Independence does not grant rights that may be pursed through the judicial system; and plaintiff’s claims of general discrimination in violation of constitutional law must be dismissed because he does not state facts describing how defendants acted in a discriminatory manner. [Filed Dec. 11, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE—MORTGAGES
34-7-2410 English v. Federal National Mortgage Association, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (14 pp.) The court grants defendants’ motion to dismiss pro se plaintiff’s complaint seeking to quiet title to her residential property, in which she argues essentially that the assignment of the mortgage is fraudulent because of the appearance of a robo-signer. The court grants the motion without prejudice, finding, inter alia, that plaintiff’s allegations fail to establish that a quiet title action is warranted as she has failed to plead that defendants’ competing interests to the mortgage are wrongful or how any perceived irregularities in the assignments between third parties cloud title in the mortgage itself; she did not properly plead a cause of action for slander of title since her vague allegations fail to allege that defendants acted with malice; her fraud count falls short of the heightened pleading standards of Rule 9(b) as she has failed to allege facts showing that she acted on defendants’ alleged misrepresentation to her detriment, failed to explain how she suffered damages as a result of defendants’ alleged false representations, and failed to allege any factual support for her conspiracy claim; and her claimed violations of the Fair Debt Collection Practices Act fail because she has failed to allege any facts describing how defendants are considered debt collectors under the act. [Filed Nov. 26, 2013.]
SECURITIES
50-7-2471 Bravetti v. Liu, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (8 pp.) In this shareholder derivative action brought by plaintiff on behalf of nominal defendant American Oriental Bioengineering Inc. against some of its officers and directors for breaches of fiduciary duties, waste of corporate assets and unjust enrichment, the court grants plaintiff’s motion for an order authorizing service on defendants Tony Liu, Yanchun Li, Jun Min, Xianmin Wang and Baiqing Zhang (foreign individual defendants) by serving American Oriental International Inc.’s counsel of record, because the Hague Convention, and the use of its methods of service, is not mandatory and the convention does not apply because the addresses of the persons to be served is unknown and plaintiff’s proposed method of service does not require the transmittal of documents abroad, the particularities and necessities of this case make it appropriate to permit alternative service under Rule 4(f)(3), and the proposed method of service comports with due process. [Filed Dec. 11, 2013.]
TAXATION
35-7-2426 United States v. Cardaci, U.S. Dist. Ct. (Simandle, U.S.D.J.) (27 pp.) The U.S. government brings this action to reduce to judgment federal tax assessments against defendant Gary Cardaci, who failed to pay more than $80,000 in taxes withheld from the wages of his employees. The government seeks to foreclose a federal tax lien on real property owned by Cardaci and his wife as tenants by the entirety, and force a sale of the marital home. The government seeks summary judgment against the Cardacis and a default judgment against two defendants who have failed to appear in this action. The Cardacis oppose summary judgment and cross-move for summary judgment on the grounds that the assessment procedure was defective and the district court should use its discretion, as set forth in United States v. Rodgers, not to force the sale of the marital home. The court enters an order reducing the lien to judgment. The court also enters default judgment against the defendants who failed to appear. The key inquiry is whether the equities in this case militate against a forced sale of the Cardacis’ marital home. The court has limited discretion to decline to order a forced sale of the marital home when the tax lien pertains to only one spouse. The existing record is incomplete and lacking in essential facts necessary to award summary judgment to either party. Thus, the court denies in part without prejudice the government’s motion for summary judgment and the cross-motion for summary judgment. The determination whether to permit a forced sale of the Cardaci marital domicile in execution of the judgment against Gary Cardaci must await a final hearing. [Filed Oct. 29, 2013.]
35-7-2457 Purciello v. Internal Revenue Service, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) The court grants plaintiffs’ motion pursuant to 26 U.S.C. § 7430 for attorney fees, litigation costs and expenses arising from an action brought by plaintiffs against the IRS to recover taxes and other monies that plaintiffs alleged the IRS had wrongfully withheld. The court grants plaintiffs’ motion in the modified amount of $53,307.50, finding that plaintiffs have shown that they were the prevailing party where defendant was not justified in contesting the refund claim, defendant’s position that plaintiffs had not filed an informal refund claim was not reasonable, and defendant’s contention that equitable estoppel did not bar its defenses was not substantially justified as defendant provided plaintiff with a partial refund and thus clearly accepted plaintiffs’ position that they filed an informal claim. The court also finds that the award, as modified, is for reasonable administrative and litigation costs. [Filed Dec. 9, 2013.]
TORTS
36-7-2427 Kitchen v. Grondolsky, U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (14 pp.) Defendants move to dismiss the second amended complaint in this action filed after plaintiff, whose federal criminal sentence was reduced after he testified as a prosecution witness in a federal trial, was held in federal custody 573 days past his adjusted release date. The court grants in part and denies in part defendants’ motion, finding that, regarding any negligence claim couched in terms of false imprisonment, plaintiff acknowledges that such claim is time-barred because it was not brought within six months of the January 2011 denial by the Bureau of Prisons of the administrative claim; insofar as plaintiff now asserts Federal Tort Claims Act claims of negligence by the Administrative Office, Marshals Service, or Parole Commission, those claims also are time-barred; and plaintiff’s allegations that he continuously complained that he was being held beyond his release date to defendants Donahue and Bullock and that defendants Grondolsky and Zickefoose knew that he was being held in excess of his legal sentence but did nothing are sufficient for his Bivens claim against these defendants to survive the motion to dismiss. [Filed Dec. 4, 2013.]
36-7-2428 Taylor v. Gilliam, U.S. Dist. Ct. (Hillman, U.S.D.J.) (23 pp.) This suit arises from injuries plaintiff allegedly sustained to her teeth and mouth as a result of dental care provided by defendant-dentist, an employee of CAMcare Health Corporation, a federally supported health center deemed a federal employee of the Public Health Service. The court notes that defendant is a federal employee and was acting within the scope her employment at the time of the conduct alleged in the complaint, and that, therefore, the United States was substituted as the proper defendant when the matter was removed to federal court. Defendant moves to vacate the default entered in state court and to dismiss the complaint for lack of subject-matter jurisdiction based on plaintiff’s failure to exhaust her administrative remedies under the Federal Tort Claims Act. Finding that plaintiff never properly served the United States and that, therefore, the entry of default was improper, the court grants the motion to vacate the entry of default. It also grants the motion to dismiss because plaintiff did not file the required administrative tort claim with respect to the dental services provided. [Filed Dec. 4, 2013.]
36-7-2472 In re Paulsboro Derailment Cases, Lord v. Consolidated Rail Corporation, U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) This case arises out of the Nov. 30, 2012, derailment of a freight train and subsequent chemical spill in Paulsboro. Plaintiffs are adults and minors who allege that they suffered physical injuries as a result of exposure to vinyl chloride that spilled from one or more railroad cars. Some plaintiffs also allege property damage. Plaintiffs brought suit under theories of negligence, medical monitoring, nuisance and trespass, seeking both compensatory and punitive damages. It is only the counts for medical monitoring and trespass that are the subject of this motion to dismiss filed by defendants Consolidated Rail Corporation, Norfolk Southern Railway Company and CSX Transportation. The court finds that plaintiffs have adequately pleaded the elements of a medical-monitoring claim to survive dismissal at this stage of litigation. Plaintiffs will need to produce expert testimony on the significance of the exposure to vinyl chloride, the nature of the alleged increased risk of diseases, and the value of a monitoring program. However, plaintiffs are not required to produce such evidence at the time of the filing of the complaint. Plaintiffs withdrew their claim alleging trespass, therefore, that claim is also dismissed. [Filed Nov. 4, 2013.]
TORTS—JURISDICTION
36-7-2411 Smith v. Kroesen, U.S. Dist. Ct. (Hillman, U.S.D.J.) (6 pp.) Defendant Cooley moves to dismiss this action filed after plaintiff sustained injuries while playing in a rugby match against a team coached by Cooley. The court continues the motion until its subject-matter jurisdiction has been properly established, finding that the jurisdictional allegations are insufficient as to the individual parties because to properly invoke jurisdiction, plaintiff must allege and prove citizenship, not merely residency, and the jurisdictional allegations are insufficient as to corporate defendant RUE for failure to properly allege its principal place of business, and it therefore cannot determine if diversity of citizenship exists between the parties so that it can exercise subject-matter jurisdiction. [Filed Nov. 26, 2013.]
TORTS—SOVEREIGN IMMUNITY
36-7-2458 Van Orden v. Borough of Woods-town, U.S. Dist. Ct. (Simandle, U.S.D.J.) (5 pp.) In this action asserting claims for negligence, vicarious liability, “state created danger” under the Fifth and Fourteenth Amendments via 42 U.S.C. § 1983, strict liability, wrongful death, and a survival action under state law, filed after plaintiff’s daughter drowned in her car after officials opened the floodgates of the Veterans Memorial Lake Dam in Salem County in anticipation of Hurricane Irene, the court grants the unopposed motion to dismiss as defendants the state of New Jersey, the New Jersey State Police, and the New Jersey Department of Environmental Protection Bureau of Dam Safety and Flood Control because the Eleventh Amendment bars suits against the state in federal court when, as here, there is no indication that the state has waived immunity or that any applicable federal statute abrogates sovereign immunity. The court also grants the state defendants’ motion to dismiss the municipal defendants’ cross-claim seeking contribution from the state, finding that sovereign immunity bars such a claim. [Filed Dec. 9, 2013.]