Oct. 25 to 31, 2012

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
CIVIL PROCEDURE — SERVICE OF PROCESS
07-2-8081 Marina Associates v. Fallas, App. Div. (per curiam) (4 pp.) Defendant appeals from an order denying his motion to vacate a default judgment that was entered against him on April 21, 1994, in connection with his failure to repay a casino credit that plaintiff Marina Associates, d/b/a Harrah’s Casino Hotel, had extended to him. The appellate panel affirms, rejecting defendant’s argument that plaintiff failed to effectuate service of process in compliance with Rule 4:6-2(c) and Rule 4:6-2(d), depriving the court of personal jurisdiction over him. [Decided Oct. 26, 2012.]
 
CONTRACTS — PUBLIC CONTRACTS
11-2-8082 In re Bid Protest of Fire Protection Systems Inspection, Maintenance/Repair at Various NJDMAVA Facilities (Project VV113), App. Div. (per curiam) (16 pp.) Appellant, Absolute Protective Systems Inc., appeals from the final decision of the Department of Military and Veterans Affairs (DMAVA) upholding the award of a contract to Oliver Fire Protection and Security for the maintenance, repair and inspection of fire protection systems at various DMAVA facilities. The appellate panel finds no abuse of discretion in the method chosen by DMAVA to compare the bidders. DMAVA’s evaluation methodology was fully explained to the parties and it was scrupulously followed. According considerable deference to the agency in choosing to award the contract to a particular responsible bidder, the panel rejects Absolute’s arguments to set aside DMAVA’s award of the contract to Oliver and affirms. [Decided Oct. 26, 2012.]
 
CORPORATIONS — ARBITRATION AND MEDIATION
12-2-8083 Gatta v. Gatta, App. Div. (per curiam) (12 pp.) Defendants Joseph Gatta & Sons Inc., a closely held family-owned company incorporated and headquartered in Pennsylvania, and Joseph Gatta, appeal a Chancery Division order denying their motion to compel arbitration in this action arising out of plaintiff Anthony Gatta’s efforts to have defendants purchase his shares. The panel reverses, finding that under Pennsylvania law, the dispute between the parties falls within the arbitration provision of their shareholder agreement, the purpose of which is to control and restrict the ability of shareholders to sell or dispose of their shares. [Decided Oct. 26, 2012.]
 
CRIMINAL LAW AND PROCEDURE
14-2-8072 State v. Fernandez, App. Div. (per curiam) (9 pp.) Defendant appeals from a judgment of conviction for the disorderly persons offense of obstructing the administration of law after a trial de novo on the record in the Law Division. Finding that the Law Division judge correctly gave deference to the credibility findings of the municipal court judge but mistakenly adopted the appellate standard of review, rather than conducting a de novo analysis, when weighing the extensive evidence regarding the irregularities involved in the investigation of an officer’s purportedly accidental discharge of his weapon, the panel reverses and remands for a de novo review on the record without according deference to the municipal judge in this regard. [Decided Oct. 25, 2012.]
 
CRIMINAL LAW AND PROCEDURE — DRUNK DRIVING
14-2-8092 State v. Rey-Arango, App. Div. (per curiam) (15 pp.) Defendant was convicted in municipal court of driving while intoxicated (DWI). Following a trial de novo in the Law Division, he was again found guilty. Defendant was sentenced as a first offender under N.J.S.A. 39:4-50(a)(1)(ii). Because there was no stipulation that the results of the Alcotest were admissible or any waiver of the requirement in State v. Chun that three foundational documents be submitted in evidence in each DWI case as a precondition to the introduction of the Alcotest results, the Alcotest results were not properly admitted in to evidence. Thus, the Law Division judge could not rely on them in finding a per se violation. However, the appellate panel affirms defendant’s conviction of DWI based on his physical condition. The matter is remanded to the Law Division for resentencing because defendant cannot be sentenced based on his BAC results. Rather, defendant must be sentenced under N.J.S.A. 39:4-50(a)(1)(i), which applies where the defendant is found guilty of operating a motor vehicle while under the influence of intoxicating liquor, and a BAC reading is not available. [Decided Oct. 26, 2012.]
 
CRIMINAL LAW AND PROCEDURE — POSTCONVICTION RELIEF
14-2-8093 State v. Vasquez, App. Div. (per curiam) (10 pp.) At the conclusion of a trial, defendant was convicted of second-degree aggravated assault; third-degree aggravated assault; third-degree endangering an injured victim; and third-degree possession of a weapon for an unlawful purpose. The Appellate Division denied his direct appeal and the Supreme Court denied certification. Here, defendant appeals the denial of his postconviction relief (PCR) petition. At the conclusion of the two-day evidentiary hearing, the judge rejected defendant’s argument of ineffective assistance of counsel regarding the failure to call a witness; he did not, however, rule on the conflict issue that was based on counsel representing defendant when counsel also represented the mother of defendant’s child in a custody dispute while defendant was awaiting trial on these charges. Because the trial judge mistakenly overlooked the conflict issue, the appellate panel remands for the judge’s findings and ruling. [Decided Oct. 26, 2012.]
 
CRIMINAL LAW AND PROCEDURE — SENTENCING
14-2-8074 State v. Zuckerman, App. Div. (per curiam) (8 pp.) Pursuant to a plea agreement, defendant pleaded guilty to harassment as a petty disorderly persons offense in exchange for the state’s agreement to recommend a term of noncustodial probation. The trial judge sentenced defendant to a one-year noncustodial probationary term with a 264-day term of incarceration in the county jail, with time served. The panel remands for correction of sentencing because, while N.J.S.A. 2C:43-2b(s) authorizes a sentence of probation plus imprisonment for crimes and disorderly persons offenses, it does not authorize imprisonment in conjunction with probation for a petty disorderly persons offense and its silence must be understood to foreclose such combined sentences for those offenses. On remand, defendant’s right to a credit for the days spent in jail prior to sentencing should be preserved by stating the jail credits to which he is entitled in the event of resentencing on a violation of probation. [Decided Oct. 25, 2012.]
 
FAMILY LAW — CHILD CUSTODY
20-2-8070 R.R. v. V.R., App. Div. (per curiam) (5 pp.) The panel grants defendant’s request for reconsideration of its earlier opinion regarding child custody, which held that the evidence was insufficient to establish exigent circumstances and that the trial court erred in transferring custody without giving defendant a plenary hearing and remanded the matter where the trial court then entered an order that effectively maintained the change in custody found to have been made erroneously and shifted the burden to the parent who had lost custody as a result of the erroneously entered order. The panel clarifies its earlier order to provide that the order granting custody to plaintiff is reversed but that the children’s school enrollment should remain unchanged pending the plenary hearing and decision on plaintiff’s request for a change in custody. Further, the panel orders that the matter be referred to a different judge on remand because some of the judge’s comments might reasonably lead a party to conclude that the judge had determined, without a plenary hearing, that it is in the children’s best interests to remain with plaintiff. [Decided Oct. 25, 2012.]
 
FAMILY LAW — CHILD SUPPORT
20-2-8071 Neuberger v. Friedman, App. Div. (per curiam) (18 pp.) Defendant Dina Friedman appeals from the postjudgment order reducing plaintiff Michael Neuberger’s child-support obligation, fixing the parties’ responsibility for college expenses to reflect an equal sharing, and denying reallocation of counsel fees. The appellate panel finds Judge Walsh properly concluded that a reduction of child support was warranted in view of parties’ financial circumstances and other relevant considerations set forth in N.J.S.A. 2A:34-23(a). Recognizing the anomalous result where Neuberger’s earnings had increased substantially since the advent of the property-settlement agreement, yet his child-support obligation was reduced, Judge Walsh addressed each statutory factor. The judge’s findings are properly based on the parties’ case information statements and supporting certifications. Because the judge’s calculations were reasonable in view of the parties’ respective financial conditions, the appellate panel declines to disturb the award, which was discretionary and supported by the record. There is no basis for appellate intervention in the judge’s decision to require an equal sharing of college expenses. Absent any evidence of bad faith, the judge’s denial of counsel fees was appropriate, particularly where Friedman did not prevail on the key issue of child support. [Decided Oct. 25, 2012.]
 
FAMILY LAW — DOMESTIC VIOLENCE
20-2-8084 A.L. v. R.L., App. Div. (per curiam) (16 pp.) Defendant appeals from a final restraining order entered against him in favor of plaintiff, his wife, based on a finding of the predicate offense of harassment under the Prevention of Domestic Violence Act, arguing that the trial court erred in entering into evidence and relying on a transcript from a former domestic-violence proceeding conducted by another judge. The panel affirms, finding that although the wholesale incorporation of the prior transcript, without defendant’s consent, violated N.J.R.E. 804(b)(1) regarding the testimony of plaintiff, who was plainly not unavailable to testify, defendant’s prior testimony was admissible regardless of his availability because it was offered as the statement of plaintiff’s opponent under N.J.R.E. 803(b)(1). Also, N.J.R.E. 804(b)(1) only applies to the testimony of witnesses and does not bar the findings of fact and conclusions of law of the prior judge whose determinations were admissible under N.J.R.E. 201(a) and (b). The panel also finds that the judge below did not abdicate her judicial responsibilities and that her explanation for finding a predicate act and the need for an FRO were primarily based on what happened in her courtroom — any commentary regarding the prior judge’s conclusions were surplusage and thus the admission of plaintiff’s testimony in the transcript was harmless. Moreover, the facts supported the finding of domestic violence and the issuance of the FRO. [Decided Oct. 26, 2012.]
 
FAMILY LAW — EQUITABLE DISTRIBUTION
20-2-8085 Rozier v. Byrd, App. Div. (per curiam) (13 pp.) In this postjudgment matrimonial matter, plaintiff appeals from the order denying her motion to enforce a provision in the parties’ matrimonial settlement agreement (MSA) that required defendant to pay her $25,000 as an advance against her share of the net proceeds of the future sale of their former marital home. In the MSA, plaintiff gave up the right to an immediate sale of the marital home and a prompt distribution of the net proceeds. Defendant gained the ability to continue to live in the home, conditioned on him paying a total of $50,000 to plaintiff as an advance against her share of the net proceeds of the future sale. Other terms were bargained for and agreed on based on the equitable distribution of the home. There is no basis to rewrite the parties’ integrated settlement agreement. Because defendant has not yet sold the home, and a year has passed since plaintiff vacated it, defendant is required to pay her the second $25,000 advance on her share of the future net proceeds of the home. The appellate panel reverses and remands to the trial court with instructions to enter an order requiring defendant to promptly pay plaintiff the $25,000 due her. [Decided Oct. 26, 2012.]
 
INSURANCE — ARBITRATION AND MEDIATION
23-2-8086 Ira Klemons, D.D.S., Ph.D., P.C. v. GEICO, App. Div. (per curiam) (7 pp.) Plaintiff, whose plaintiff was injured in an auto accident and assigned his claim benefits under a GEICO auto insurance policy to it, appeals from a Law Division order that dismissed its verified complaint and denied its application to vacate a National Arbitration Forum arbitration award of personal-injury-protection benefits for a lesser sum than it had sought and from the denial of its motion for reconsideration. Concluding that plaintiff’s appeal is barred by N.J.S.A. 2A:23-18(b), which provides that when a trial court confirms an arbitration award there shall be no further appeal except in rare circumstances grounded in public policy, the panel dismisses the appeal. [Decided Oct. 26, 2012.]
 
LABOR AND EMPLOYMENT — UMEPLOYMENT COMPENSATION
25-2-8088 Vialet v. Board of Review, App. Div. (per curiam) (5 pp.) Plaintiff appeals the Board of Review’s final decision finding that she was ineligible to receive unemployment compensation benefits during the time she was out of the country on a preplanned family vacation. The panel affirms, finding that the principles in Krauss and Vazquez defining “availability under N.J.S.A. 43:21-4(c)(1) remain legally viable despite changes in the modern marketplace and are applicable here, and that plaintiff’s decision to leave the country on vacation left her unavailable to accept suitable employment during that period and her efforts to remain electronically linked to the marketplace did not overcome her physical absence because, by her own admission, she would not have been able to start any prospective job until her return. [Decided Oct. 26, 2012.]
 
PUBLIC EMPLOYEES — CEPA
33-2-8089 Tayoun v. Mooney, App. Div. (per curiam) (24 pp.) Plaintiff, formerly the director of the Neighborhood Services Department of Atlantic City, appeals from the Law Division’s order granting summary judgment to the city dismissing his complaint alleging violations of the Conscientious Employee Protection Act and the New Jersey Civil Rights Act in connection with his termination. Finding that plaintiff’s actions in disclosing and objecting to activities of his subordinates that he believed violated the city’s ordinances and policies or the laws of the state were a regular part of his supervisory job responsibilities and do not constitute whistle-blowing activity, the panel affirms the dismissal of the retaliation under CEPA. Because an at-will employee has no constitutionally protected property interest in continued public employment, and finding that the mayor’s failure to comply with N.J.S.A. 40:69A-43 by failing to notify the city council in advance of his intention to remove plaintiff did not make plaintiff’s substantive claim of due process cognizable under the CRA, the panel affirms the dismissal of the CRA claim. [Decided Oct. 26, 2012.]
 
FEDERAL COURT CASES
 
ANTITRUST — INTELLECTUAL PROPERTY
59-7-8075 In re Lamictal Direct Purchaser Antitrust Litigation, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (4 pp.) Defendants move to stay all proceedings because a recent Third Circuit decision, In re K-Dur Antitrust Litigation is pending before the Supreme Court on petitions for a writ of certiorari. They argue that if certiorari is granted, the outcome will directly affect the legal standard that will be applied in this case. In 2002, Glaxo-SmithKline, L.L.C., sued Teva for patent infringement. After three years of litigation, the parties settled in 2005. Plaintiffs allege that the terms of that settlement between GSK and Teva violate federal antitrust statutes. Although some of the plaintiffs in this action are also involved in K-Dur, that involved a different settlement involving another drug and other pharmaceutical companies. The legal issue is similar, but the possibility that the Supreme Court will grant certiorari and alter the legal framework set forth by the Third Circuit is remote. Defendants’ motion to stay pending the Supreme Court’s decision in K-Dur is denied without prejudice. [Filed Oct. 23, 2012.]
 
BANKRUPTCY
42-6-8076 In re Licina, U.S. Bank. Ct. (Wizmur, U.S.B.J.) (2 pp.) Having previously found that the debtors are bound by the terms of the prepetition forbearance agreement that they executed with Farm Credit East, ACA, including the provisions awarding attorney fees and establishing the appropriate contract rate, the court now modifies its earlier ruling regarding the interest rate that the debtor’s must pay through their Chapter 13 plan. The court determines that the applicable postconfirmation interest rate is to be determined using the formula approach adopted in Till v. SCS Credit Corp., 541 U.S. 465 (2004). [Filed Oct. 22, 2012.]
 
42-6-8100 In re Jones, U.S. Bank. Ct. (Winfield, U.S.B.J.) (4 pp.) Before the court is plaintiff’s amended bill of costs. Under Fed. R. Bankr. P. 7054, plaintiff requests $2,851.25 as costs allowable under 28 U.S.C. § 1920. Plaintiff also cites to Fed. R. Civ. P. 54(d)(1) as a basis for allowance of costs. This is an understandable error by a pro se party, but no costs can be allowed under Rule 54(d)(1). Bankruptcy Rule 7054(a) explicitly states that only Rule 54(a)-(c) applies in adversary proceedings. Additionally, under either Fed. R. Bankr. P. 9011 or Fed. R. Civ. P. 56(h) (made applicable by Fed. R. Bankr. P. 7056), plaintiff requests the additional sum of $1,348, representing costs incurred but not compensable under 28 U.S.C. § 1920. Moreover, plaintiff seems to request an additional monetary sanctions under Fed. R. Bankr. P. 9011(a)(b)(1) and (3) and Fed. R. Civ. P. 56(h). However, such an allowance is not properly requested in connection with the taxation of costs under § 1920. In connection with the court’s grant of summary judgment, no sanctions were permitted, and the present request is untimely and not properly a component of a bill of costs. Taxable costs under § 1920 are allowed for $2,437.55. [Filed Oct. 26, 2012.]
 
CIVIL PROCEDURE
07-7-8094 Stone v. The New Jersey Administrative Office of the Courts, U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (3 pp.) Plaintiff filed an application to proceed in forma pauperis on appeal from the court’s dismissal of his case for lack of jurisdiction and failure to state a claim. Plaintiff also filed a motion to seal his applications for in forma pauperis status. The court finds plaintiff has failed to advance a reasoned, nonfrivolous argument on the law and facts in support of issues raised on appeal, and certifies that the appeal has not been taken on good faith. The court finds that plaintiff has not shown good cause to seal his application for in forma pauperis status. The court denies the application, and further denies plaintiff’s motion to seal his application to proceed in forma pauperis. [Filed Oct. 24, 2012.]
 
CIVIL PROCEDURE — DISCOVERY
07-7-8095 Alit (No. 1) Limited v. Brooks Insurance Agency, U.S. Dist. Ct. (Shipp, U.S.M.J.) (11 pp.) Defendant American Equity Insurance Company (AEIC) appeals a nondispositive order issued by Magistrate Judge Bongiovanni, granting plaintiff Alit (No. 1) Limited’s request to compel discovery responses. AEIC failed to file a motion for reconsideration or appeal the order. The court affirms the order and denies AEIC’s appeal as untimely on procedural grounds. In addition, the court finds AEIC’s substantive arguments unpersuasive. Judge Bongiovanni found the information sought by plaintiffs to be relevant and discoverable to the extent the information is not protected by privilege. The court finds no abuse of discretion, nor was that decision clearly erroneous or contrary to law. [Filed Oct. 25, 2012.]
 
CONTRACTS — FRANCHISES
11-7-8077 Wingate Inns International, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (13 pp.) In this action seeking an accounting of the revenues earned at defendant’s facility during the time it operated as a Wingate Inn pursuant to a franchise agreement between the parties, filed after plaintiff terminated the agreement after learning that defendant had transferred control of the facility, plaintiff’s motion to dismiss certain of defendant’s counterclaims is granted. The counterclaim alleging fraud in the inducement is dismissed because defendant’s claimed reliance on plaintiff’s alleged prior representations is not reasonable in light of the agreement’s integration clauses. The counterclaim alleging violation of the New Jersey Consumer Fraud Act is dismissed because defendant is not a “consumer” and the franchise is not consumer merchandise that is typically offered for sale to the general public. The counterclaim alleging lost income is dismissed as defendant’s claims are more appropriately addressed at the damages phase of the litigation. The counterclaim alleging violation of the Georgia Fair Business Practices Act is dismissed because a sale of the franchise under the facts here is not covered by the GFBPA. The counterclaim alleging a violation of the Florida Franchise and Distributorship Law is dismissed as barred in light of the New Jersey choice-of-law provision in the parties’ agreement. [Filed Oct. 23, 2012.]
 
GOVERNMENT — SOVEREIGN IMMUNITY
21-7-8096 Andrews v. United States, U.S. Dist. Ct. (Bumb, U.S.D.J.) (10 pp.) Plaintiff alleges that the federal, county and state defendants have violated his federal and New Jersey civil and constitutional rights by not protecting him from crimes allegedly committed by his uncle, have failed to prosecute his uncle, and have failed to stop the uncle from attempting to collect on state court judgments he obtained against plaintiff. He also asserts claims for, inter alia, breach of fiduciary duty and infliction of severe emotional distress. New Jersey, the New Jersey attorney general, the New Jersey State Police, Atlantic County and its prosecutor and sheriff, the FBI and the United States all move to dismiss for lack of jurisdiction. Most of the claims against the federal defendants are dismissed as barred by sovereign immunity; the remaining claims are dismissed for failure to comply with the Federal Tort Claims Act. The claims against the state defendants are dismissed as barred by the Eleventh Amendment. The 42 U.S.C. § 1983 claims against the county sheriff are dismissed as he is not a person under that section. Since the complaint makes no allegations against the county, it is dismissed. The remaining claims against the county defendants are dismissed because plaintiff has not filed notice under the Tort Claims Act. Plaintiff is given 45 days to file an amended complaint. [Filed Oct. 24, 2012.]
 
INSURANCE
23-7-8078 Parker McCay, P.A. v. Hartford Fire Ins. Co., U.S. Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) Plaintiff-law firm purchased a commercial general liability policy from Hartford Fire, an umbrella liability policy from Hartford Casualty, and a workers’ compensation and employer’s liability policy from Twin City. After a former employee filed suit against plaintiff, it called on all three defendants to defend and indemnify it were the employee to prevail. Twin City refused to defendant or indemnify. Hartford Fire and Hartford Casualty agreed to defend subject to a reservation of rights but refused to indemnify. Plaintiff then filed this action seeking a declaration that all three defendants are obligated to both defend and indemnify. The court denies defendants’ motion to dismiss, finding that plaintiff’s claims are ripe for adjudication since, even though the employee litigation is unresolved, plaintiff has alleged that it has both a present right to rely on Twin City to defend it in that action and an unperfected but nonetheless defined right to indemnity from all defendants if it were to lose the case and these allegations are sufficient to show adversity of the parties’ interest for the purposes of a declaratory judgment action, the declaratory judgment case will be conclusive because it will establish whether Twin City is obligated to defend to some extent and who, if anyone, is obligated to indemnify plaintiff for any potential judgment in the litigation, and determining plaintiff’s insurance coverage is practical and useful since at the end of the declaratory judgment action, it will know whether it can rely on any of the defendants for indemnification. [Filed Oct. 23, 2012.]
 
INSURANCE — HEALTH INSURANCE — CONTRACTS
23-7-8101 Angel Jet Services, L.L.C. v. Borough of Woodland Park, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (10 pp.) Third-party defendants North Jersey Municipal Employee Benefits Fund and Aetna Insurance Company move to dismiss the third-party complaint of third-party plaintiff-borough seeking coverage for medical air transport services plaintiff rendered to the borough’s police chief after the mayor overrode third-party defendants’ denial of coverage and expressly agreed, on behalf of the borough, to pay all costs of the air ambulance transportation. The borough asserts four claims under common-law principles of contract law for two types of relief: declaratory relief for violation of the terms of the health-care contract and a declaration by the court stating that Aetna violated express and implied terms of the health-care plan. The court grants the motion to dismiss for failure to state a claim, finding that the borough’s facts do not show that the police chief was entitled to receive this specific form of transportation as part of his insurance coverage, and that the borough’s allegations fail to suggest that Aetna exercised its discretion under the health-care contract for an improper motive and the borough thus does not satisfy the improper-motive element of a good-faith performance claim. [Filed Oct. 26, 2012.]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-8079 Millipore Corporation v. W.L. Gore Associates Inc., U.S. Dist. Ct. (Salas, U.S.D.J.) (22 pp.) Plaintiffs Millipore Corporation, Millipore AB and Millipore SAS bring this action against Defendant W.L. Gore Associates Inc. for patent infringement and breach of contract. Generally, Millipore alleges that Gore is making, using, selling, offering to sell or importing sealing devices that infringe on Patent No. 6,779,575 (the ’575 patent) and U.S. Reissue No. RE41,169 (the ’169 reissue). Presently before the court is the parties’ request for claim construction. The Court held a Markman hearing. This opinion addresses the proper construction of the disputed claim terms, which will be construed as indicated. [Filed Oct. 24, 2012.]
 
JURISDICTION
24-7-8097 Neuner v. Samost, U.S. Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Plaintiff, appointed by the New Jersey Superior Court as receiver for defendant Joseph Samost in a suit by the state DEP against Samost, filed this action in state court seeking to take control and possession of certain apartment units he alleges are owned by Iva and Joseph Samost. Iva and Lentiva, L.L.C., removed the action based on diversity and now oppose plaintiff’s motion to remand and move for the dismissal of defendant Quinrick Realty, L.L.C., on the basis of fraudulent joinder. The moving defendants’ motion to dismiss Quinrick is denied because they have not established whether the court had subject-matter jurisdiction at the time of removal or whether Quinrick is nondiverse from plaintiff. Plaintiff’s motion to remand under Colorado River is denied because plaintiff has failed to establish that there is a substantially similar parallel litigation in state court and even if he had, plaintiff has failed to show that there is a strongly articulated congressional policy against piecemeal litigation in the specific context of the case. [Filed Oct. 24, 2012.]
 
JURISDICTION — FIRST-FILED RULE
24-8-8102 Honeywell International Inc. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Third Cir. (Jordan, U.S.C.J.) (9 pp.) Honeywell appeals from the district court’s dismissal of its declaratory judgment act complaint against defendant-union in favor of a second-filed suit that the union brought against Honeywell in Michigan, claiming that it was reversible error for the court not to follow the first-filed rule. Noting that the first-filed rule is not a dispositive rule and does not override the court’s discretionary authority to determine whether to entertain a suit for declaratory relief, the Third Circuit affirms, finding that the district court did not abuse its discretion as its ruling was substantially based on the fact that Michigan had a greater nexus to the dispute than New Jersey and that Honeywell’s decision to sue before providing the required statutory notice suggested that it was attempting to beat the union to the courthouse, both of which findings were supported by the record. [Filed Oct. 26, 2012.]
 
LABOR AND EMPLOYMENT — ARBITRATION
25-7-8103 Graphic Communications Local 612M v. Nextwave Web, L.L.C., U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) This matter comes before the court on an unopposed motion to confirm a labor arbitration award issued by the New Jersey State Board of Mediation. The underlying dispute concerned defendant Nextwave Web L.L.C.’s layoff of plaintiff Sandro Mancini, a member of the Graphics Communications Local 612M of the Graphic Communications Conference of the International Brotherhood of Teamsters (GCC). Mancini and GCC ask the court not only to confirm the award, but to quantify it, as well. Plaintiffs also seek attorney fees, costs and prejudgment interest. An arbitrator awarded reinstatement for Mancini, along with backpay and out-of-pocket medical expenses. Before plaintiffs could confirm the award in state court, Nextwave removed the action to the district court, which has subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441 and § 301 of the Labor Management Relations Act. GCC was a party to the arbitration; Mancini, on the other hand, was not. Since Mancini does not allege that GCC breached its duty of fair representation, the court denies Mancini’s motion on standing grounds. The court grants plaintiff GCC’s motion to confirm the award of $31,236.20 plus fees, costs and prejudgment interest. [Filed Oct. 26, 2012.]
 
LABOR AND EMPLOYMENT — TERMINATION
25-7-8098 DeMary v. Kennedy Health System, U.S. Dist. Ct. (Bumb, U.S.D.J.) (8 pp.) Plaintiff, a former employee of defendant, filed a complaint of discrimination with the New Jersey Division on Civil Rights (NJDCR), simultaneously filing the complaint with the Equal Employment Opportunity Commission (EEOC). Plaintiff never informed the NJDCR that she was later terminated from her position and the NJDCR issued a decision finding no probable cause for the claims in her NJDCR complaint. Here, plaintiff’s complaint asserts that both her termination and the actions alleged in her NJDCR complaint violated Title VII. Defendant’s motion to dismiss is granted in part and denied in part. Plaintiff’s termination claim was not directly within the scope of plaintiff’s NJDCR complaint. None of the charges are based on plaintiff’s allegedly unlawful termination, which occurred after the NJDCR complaint was filed. Nor is plaintiff’s termination a claim that could reasonably be expected to grow out of an EEOC investigation. Because plaintiff failed to exhaust her termination claim, that claim is dismissed. However, state law preclusion rules do not apply, in Title VII suits, to judicially unreviewed administrative findings by state agencies. Here, the NJDCR’s findings have never been reviewed by a court. Thus, plaintiff is not collaterally estopped by the adverse finding of the NJDCR from raising her disparate-treatment claims. [Filed Oct. 24, 2012.]
 
NEGLIGENCE — LIMITATIONS ON ACTIONS — FICTITIOUS DEFENDANTS
31-7-8099 Sarmineto v. St. Mary’s Hospital, U.S. Dist. Ct. (Linares, U.S.D.J.) (14 pp.) Defendant Velocity moves to dismiss the claims against it in this personal-injury action, arguing that the claims are time-barred because, while the original complaint was filed within the applicable two-year statute of limitations, it was not specifically named as a defendant until after the statute of limitations had expired. The court finds that Fed. R. Civ. P. 15(c)(1), the relation-back rule, applies in this case, that the federal rules of civil procedure allow for plaintiffs’ invocation of New Jersey’s fictitious-defendant rule, and that plaintiffs have satisfied the requirements for invoking the fictitious-defendant rule and it denies Velocity’s motion. [Filed Oct. 23, 2012.]
 
PUBLIC EMPLOYEES — DISCRIMINATION
33-8-8104 Kimber-Anderson v. City of Newark, Third Cir. (Jordan, U.S.C.J.) (8 pp.) Plaintiffs, all of whom are women and each of whom is a state-certified fire prevention specialist employed by the city to inspect buildings to ensure compliance with the fire codes, appeal the district court’s grant of summary judgment in favor of the city and its fire director on their complaint of gender discrimination and hostile work environment in which they assert that male FPSs who were subsequently hired were not qualified and were treated more favorably. The Third Circuit affirms, finding that plaintiffs are unable to make a prima facie showing of discrimination because they cannot show that they suffered an adverse employment action that others outside their protected class did not suffer, and they failed to show a hostile work environment since even if relations between them and the more recently hired males were strained, those circumstances are insufficient to show a hostile work environment. Also, plaintiffs’ § 1983 claim asserting a violation of their right to equal protection fails because they have failed to show that they were subjected to intentional discrimination. [Filed Oct. 26, 2012.]
 

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