Daily Decision Service Alert: Vol. 21, No. 219 – November 9, 2012

New Jersey Law Journal


14-2-8160 State v. M.M., App. Div. (per curiam) (28 pp.) Defendant appeals his convictions for aggravated sexual assault, sexual assault, endangering the welfare of a child, criminal sexual contact and terroristic threats. The panel reviews each of defendant's challenges and concludes that: none of the trial judge's evidentiary rulings, standing alone, was capable of producing an unjust result; comments by the prosecutor, although constituting bolstering, did not, standing alone, cause the jury to reach a verdict that it would not have otherwise reached; and the erection of a screen to protect the victim from spectators, while perhaps necessary, was not justified by a detailed record so that prejudice to defendant is presumed. The panel finds that these errors, when considered collectively, warrant reversal because the evidence largely turned on the jury's assessment of the witnesses' credibility.
14-2-8161 State v. McClinton, App. Div. (per curiam) (5 pp.) Defendant was convicted by a jury in 2005 of four counts of first-degree robbery, four counts of third-degree theft, and six weapons offenses. The court denied defendant’s motion for post-conviction relief based on ineffective assistance of counsel on the papers. During the pendency of this appeal, the Supreme Court decided the case of State v. Parker. Though noting the discretion of the trial judge in deciding whether to hear oral argument on a PCR petition, the Court stressed that there is strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief. Further, when the trial judge reaches the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary. Here, not having had the benefit of the Parker decision, the court decided defendant's first PCR petition on the papers and provided no explanation as to why oral argument was not conducted. In view of Parker, the appellate panel remands to the trial court for oral argument.
51-7-8162 Kerr v. Elwood, Dist. Ct. (Wolfson, U.S.D.J.) (11 pp.)Petitioner, a native and citizen of Jamaica and a lawful permanent resident in the United States, seeks a writ of habeas corpus pursuant to 28 U.S.C. section 2241, claims that he is unlawfully held in custody as a result of respondents' erroneous interpretation of the mandatory detention provision in 8 U.S.C. section 1226(c) of the Immigration and Nationality Act. Interpreting section 1226(c) as requiring that the government act immediately upon an alien's release from criminal custody after conviction of certain enumerated offenses, and that where, as here, it does not, the alien is properly considered to be held under section 1226(a), which entitles him to a bond hearing, the court grants petitioner habeas relief, ordering that a bail hearing be provided within 14 days. [Filed November 8, 2012].
24-7-8163 Anthony’s LLC v. Babcock, Dist. Ct. (Falk, U.S.M.J.) (15 pp.) Anthony’s, LLC, a New Jersey limited liability company with its principal place of business in New Jersey, is in the business of buying and selling stamps and coins. Christopher Babcock, a citizen of Kentucky, is a coin collector and individual investor. Marc Guitman, a citizen of New Jersey, is Anthony’s employee. In the course of several internet transactions, Anthony’s shipped merchandise purchased by Babcock to him in Kentucky. Babcock contacted Anthony’s about lots that allegedly contained counterfeit and valueless coins. After settlement discussions, Anthony’s filed suit against Babcock in the Superior Court of New Jersey, seeking a declaratory judgment that a contract existed for the sale/purchase of lots of coins and plaintiff fully performed under the contract; and a settlement was reached. Babcock filed an action against Anthony’s and Guitman in the Western District of Kentucky. Before the Court is Babcock’s motion to transfer venue. The Court finds Babcock may be considered the “real” plaintiff. Having been allegedly defrauded regarding the coins sold to him by Anthony’s, Babcock would be the logical claimant in an action for damages. Had Babcock filed first, he would have filed in Kentucky. Weighing the relevant factors and concluding the Western District of Kentucky is the most appropriate and convenient forum, the Court grants Babcock’s motion to transfer. [Filed November 8, 2012]
24-8-8164 Brett v. Brett, Dist. Ct. (per curiam) (5 pp.) In this action alleging that defendants opened his mail and obstructed his correspondence in violation of 18 U.S.C. section 1702, plaintiff appeals the District Court's dismissal of his complaint pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). The Third Circuit affirms because, where plaintiff and one of the defendants are both residents of Pennsylvania, the complaint does not establish diversity jurisdiction. Nor does it establish federal question jurisdiction since 18 U.S.C. section 1702, a criminal statute, does not give rise to civil liability and plaintiff does not allege any further violations of federal law from which he can assert a civil action. [Filed November 8, 2012] 
25-8-8165 National Security Systems, Inc. v. Iola, Third Circuit (Chagares, U.S.C.J.) (64 pp.) In the 1980s. Defendant James Barrett, a financial planner, induced plaintiffs, four small New Jersey corporations and their owners, to adopt an employee welfare benefit plan, the Employers Participating Insurance Cooperative (“EPIC”). EPIC’s advertised tax benefits were illusory; the scheme masqueraded as a multiple employer welfare benefit plan, but in fact was a method of deferring compensation. After the Internal Revenue Service disallowed certain deductions claimed on plaintiffs’ federal income tax returns, they filed suit under the Employee Retirement Income Security Act of 1974 (ERISA), the civil component of the Racketeer Influenced and Corrupt Organization Act (RICO), and New Jersey statutory and common law. A jury found Barrett liable on the common law breach of fiduciary duty claim, but not liable on the RICO claim. The District Court held a bench trial on the ERISA claim and issued partial judgment for plaintiffs. The parties raise challenges to rulings made by the District Court. The circuit panel affirms the District Court’s judgments in all respects but three. On the issues of whether the District Court properly deemed certain state law causes of action preempted by ERISA, properly held certain ERISA claims time-barred, and properly limited the jury’s consideration of one theory of recovery under RICO, the panel vacates and remands. [Filed November 8, 2012]
25-7-8166 Januszewski v. Advance Auto Parts, Inc., Dist. Ct. (Shipp, U.S.M.J.) (9 pp.)This is a diversity personal injury case filed by Plaintiff, who was hired by third party defendant Direct Source, Inc. to complete installation of IT equipment in Defendant Advance Auto Parts’ stores pursuant to a Master Services Agreement (“Contract”) between Advance and Direct. Direct, rather than hire technicians to complete the project, retained an IT referral company, OnForce, Inc., to provide self-employed independent contracts. Plaintiff was one such independent contractor. Direct admits that it failed to provide the required workers’ compensation or general liability insurance as required by the Contract. The Court finds Direct breached the Contract when it failed to add Advance to its general liability insurance. That breach caused damages to be incurred by Advance. Advance’s motion for summary judgment pursuant to a breach of contract theory is granted. [Filed November 8, 2012]
50-7-8167 Central European Distribution Corp. Securities Litigation, Dist. Ct. (Simandle, U.S.D.J.) (34 pp.) This case involves several federal securities class actions brought by Central European Distribution Corporation shareholders under §§ 10(b) and 20(a) of the Securities Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5. The court issued an August 22, 2012 order appointing lead plaintiff and lead counsel, consolidated two cases and ordered that any other cases filed in or transferred to the district arising out of the same subject matter be consolidated with this action. Subsequently two cases were transferred to the district and consolidated. Plaintiffs in those actions, Grodko and Puerto Rico System of Annuities and Pension for Teachers, move for de-consolidation. Given the differences between this action and Grodko, the complexities of the lead plaintiff issues before the court, and the idiosyncracies of the lead plaintiff applicants, the court grants the motion for relief and allows the Grodko and Puerto Rico System actions to proceed separately to prevent prejudice to plaintiffs and claims in those matters. However, the court orders that the three actions be coordinated for discovery and case management purposes. [Filed November 8, 2012]  

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