Dec. 13 to 19, 2012

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW
01-2-8486 In re Bid Solicitation #11-X-21175, Snow Removal and Salting Services Statewide, App. Div. (per curiam) (11 pp.) Central Jersey Landscaping Inc. appeals from a final decision of the Division of Purchase and Property (DPP) rejecting its bid protest and awarding a bid to Garden State Sealing (GSS). Central argues that the DPP erred by (1) awarding GSS the bid despite its nonconformance for failing to include the source disclosure form; and (2) failing to consider all relevant criteria in evaluating the bid proposals. The appellate panel agrees with the acting director’s determination that the source disclosure form was not required by the request for proposals (RFP) when submitting a bid. Thus, GSS submitted a conforming bid. Further, the panel rejects Central’s contention that the Purchase Bureau improperly focused only on price and failed to consider all of the RFP’s bid evaluation criteria. [Decided Dec. 18, 2012.]
 
ADMINISTRATIVE LAW — DIVISION OF DEVELOPMENTAL DISABILITIES
01-2-8442 In the Matter of M.J., App. Div. (per curiam) (33 pp.) B.J. and G.J., the parents of M.J., a developmentally disabled adult, appeal from the final decision of the Department of Human Services, Division of Developmental Disabilities (DDD), holding that M.J. is not entitled to a contested case hearing or placement on an emergency basis. They also seek compensation for the DDD’s failure to provide day services, reimbursement for their expense of placing him in a private placement facility, and attorney fees and costs of litigation. The panel affirms, finding that under the facts, plaintiffs are not entitled to a hearing because, inter alia, they are not appealing a specific offer of placement and because the administrative appeal procedure offered by the DDD is adequate to protect M.J.’s interest; the DDD’s refusal to provide M.J. an emergency placement is supported by substantial credible evidence where the record discloses that he is in private placement and he has not alleged that he is in any danger or that he will be discharged at a certain date; and plaintiffs have not carried their burden of showing that the DDD was manifestly mistaken in this matter and the rare equitable remedy of financial reimbursement is not warranted and the record does not support ordering the DDD to pay for his residential services at this juncture beyond the contribution to day services it has begun paying. [Decided Dec. 13, 2012.]
 
ALTERNATIVE DISPUTE RESOLUTION
03-2-8443 Marjam Supply Co. Inc. v. Columbia Forest Products Corporation, App. Div. (per curiam) (14 pp.) Defendant Columbia Forest Products Corporation appeals from the order denying its motion to dismiss plaintiff Marjam Supply Co. Inc.’s complaint and to compel arbitration. Marjam and Columbia had been working together buying and selling Columbia’s products for about two months when Columbia elevated Marjam to the level of a “Cornerstone Member” distributor. This status was memorialized in a document prepared by Columbia (the enrollment agreement). After Marjam commenced this action seeking equitable relief, compensatory damages, and punitive damages, Columbia filed a motion to dismiss and to compel arbitration pursuant to the terms in its emailed invoices. Columbia asserts that the Federal Arbitration Act (FAA) applies to this matter, and that the court should compel arbitration. Although acknowledging that the FAA applies, the appellate panel finds no basis to compel arbitration in this case. The record convincingly reveals that Marjam never agreed to submit disputes relating to the enrollment agreement to arbitration. [Decided Dec. 13, 2012.]
 
ALTERNATIVE DISPUTE RESOLUTION — PIP ARBITRATION
03-2-8444 United Services Automobile Association v. USA Chiropractic, App. Div. (per curiam) (9 pp.) Adriana Guzman sustained injuries in a motor vehicle accident and received treatment from defendants. After plaintiff, her PIP carrier, refused to pay for medical treatment, defendants filed demands for PIP arbitration. The National Arbitration Forum consolidated the proceedings, which were heard by an arbitrator who, before issuing a decision, accepted a position at the law firm representing one of the defendants. Only that party was notified of the conflict of interest. The arbitrator issued four awards in favor of defendants. Plaintiff filed a complaint to vacate and the trial judge vacated the awards and remanded to intervenor Forthright, the successor to the NAF. Forthright appeals the remand. Finding that N.J.S.A. 2A:23A-13 authorized the judge to remand the PIP arbitrations to Forthright because the parties were prejudiced by the arbitrator’s conflict-of-interest bearing on an appearance of partiality, the panel affirms. [Decided Dec. 13, 2012.]
 
BANKING AND FINANCIAL INSTITUTIONS
06-2-8472 TD Bank, N.A. v. Clinton Center Investors, L.L.C., App. Div. (per curiam) (10 pp.) Defendants appeal from an order granting plaintiff’s motion for summary judgment and denying defendants’ cross-motion for additional discovery, to adjourn the trial date and for leave to amend their answer. Plaintiff entered into an agreement whereby plaintiff agreed to loan defendant Clinton Center Investors, L.L.C., up to $6,322,000. The loan was evidenced by a promissory note, and secured by a mortgage on Clinton Center’s leasehold interest in certain property. Defendants executed agreements personally guaranteeing full payment and performance of Clinton Center’s obligations under the loan and mortgage agreements. Thereafter, the parties negotiated an extension of the maturity date. Defendants defaulted on the note. The appellate panel finds the trial court correctly granted summary judgment to plaintiff, rejecting defendants’ contention that they raised a genuine issue of material fact as to whether plaintiff orally agreed to further extend the maturity date. Also, the court correctly denied defendants’ cross-motion. [Decided Dec. 17, 2012.]
 
CIVIL PROCEDURE
07-2-8502 Henderson v. Castro, App. Div. (per curiam) (4 pp.) Plaintiff filed a complaint in March 2010 for injuries sustained in an auto accident almost two years before. Service of process was not completed until October 2011, after the case’s administrative dismissal in April 2011 as to all defendants for lack of prosecution. Plaintiff appeals from the order granting the motion of two defendants to dismiss the complaint with prejudice. Finding that the motion judge did not abuse his discretion by following the plain language of Rule 1:13-7(a), which requires that a plaintiff show “exceptional circumstances” when seeking to reinstate a multidefendant case more than 90 days after an administrative dismissal, the panel affirms. [Decided Dec. 19, 2012.]
 
COMMERCIAL LAW — FRANCHISE LAW
08-2-8487 Foulke Management Corp. v. Audi of America Inc., App. Div. (per curiam) (21 pp.) In this motor vehicle franchise termination action, defendant Audi of America Inc.’s motion for leave to appeal to review paragraph two of the April 18, 2012, order of the Law Division was granted. In that paragraph, the trial judge required Audi to provide its franchisee, plaintiff Foulke Management Corp., d/b/a Atlantic Audi (Atlantic), with a guaranteed number of new vehicles each month during the pendency of the litigation. Audi argues the judge exceeded his authority under the New Jersey Franchise Practices Act, and because there were disputed issues of material facts, mandatory preliminary injunctive relief should not have been granted. Significantly, the judge did not conduct a plenary hearing; the failure to conduct such a hearing was critical because the facts underlying each of the parties’ respective claims were sharply disputed. The appellate panel finds the judge misapplied his discretion in granting Atlantic mandatory injunctive relief under the circumstances of this case. The panel reverses the judge’s decision, vacates paragraph two of the April 18, 2012, order, and remands. [Decided Dec. 18, 2012.]
 
CONSUMER PROTECTION
09-2-8503 Trico Equipment Inc. v. Ellsee Construction, Co., L.L.C., App. Div. (per curiam) (22 pp.) Defendant rented an excavator from plaintiff that failed mechanically on the second day of the rental. Plaintiff alleged that defendant misused the equipment and sued to recover repair costs. Defendant filed a counterclaim alleging, inter alia, breach of contract and violation of the Consumer Fraud Act for failure to provide a written rental agreement. Both parties appeal from the net judgment in favor of plaintiff finding that defendant caused the machine’s failure and that defendant had proved consumer fraud losses as the absence of a written rental contract was a violation of the CFA. The panel concludes that defendant did not prove a CFA violation based on the failure to provide a written rental agreement because defendant failed to prove that a statute or CFA regulation was violated by that failure where no standard rental agreement was created or preserved and defendant did not sign any such document. Finding that the case should have been decided as purely a contractual case, and looking to defendant’s 2002 application for credit with plaintiff, the rental delivery and inspection form signed by defendant, the insurance certificate request faxed to defendant, and plaintiff’s first rental invoice, the panel concludes that defendant’s interpretation of the parties’ agreement was reasonable and that plaintiff was not entitled to recover the expense of repairing the excavator where defendant had paid for a physical damage waiver. The panel concludes that neither party proved entitlement to recovery of damages from the other and that both the complaint and the counterclaim should have been dismissed. [Decided Dec. 19, 2012.]
 
CRIMINAL LAW
14-2-8452 In the Matter of the Expungement of the Criminal Records of Drobny, App. Div. (per curiam) (4 pp.) Petitioner Michael Drobny appeals from the original denial and denial of reconsideration of his application to expunge his convictions from an August 1996 arrest. In 1996, when he was 20 years old, Drobny engaged in a series of narcotics sales to undercover police officers. He entered a plea of guilty to selling less than one ounce of marijuana on Aug. 1, 1996, and selling one ounce or more of marijuana on Aug. 15, 1996. Drobny was sentenced to probation for three years, which he successfully completed without a violation. He has had no subsequent involvement with the criminal justice system. On appeal, he argues that his convictions should be expunged pursuant to N.J.S.A. 2C:52-5, the Expungement of Records for Youth Drug Offenders. Because petitioner indisputably was convicted of the sale of more than 25 grams of marijuana, he is not eligible for an expungement of any offense under N.J.S.A. 2C:52-5. [Decided Dec. 13, 2012.]
 
14-2-8478 State v. Fountain, App. Div. (per curiam) (15 pp.) Defendant’s conviction for charges arising from his shooting of an acquaintance are affirmed. The matter is remanded for resentencing because the sentence for possession of a firearm without an identification card, which the trial court made consecutive to the sentence imposed for the merged convictions for aggravated assault for causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, aggravated assault for causing bodily injury with a deadly weapon, aggravated assault for pointing a firearm at the victim, and possession of a rifle for an unlawful purpose, should run concurrently because on the facts here, defendant’s objectives and purpose in possessing the rifle were the same as in committing the aggravated assault. [Decided Dec. 17, 2012.]
 
14-2-8509 State v. Sanders, App. Div. (per curiam) (49 pp.) Defendant appeals from his conviction and sentence for murder, felony murder, and multiple armed robberies and carjackings. Defendant challenges the validity of the warrantless search of his girlfriend’s apartment; the voluntariness of his self-incriminating custodial statement; the admission of hearsay statements; and his sentence. The appellate panel affirms the convictions but remands for resentencing. The state agrees with defendant that the court erred in omitting a No Early Release Act-based period of parole ineligibility, the sentence is illegal, and resentencing is required, but asserts the court is not barred from increasing the parole-ineligibility term. The panel detects a more fundamental problem with the sentence for felony murder, finding the court should have merged the felony murder conviction into the intentional murder conviction, instead of the reverse. The court should have sentenced defendant for intentional murder, not felony murder. Since defendant has not completed his sentence, the court may correct the illegality and impose a sentence for purposeful and knowing murder subject to NERA. [Decided Dec. 19, 2012.]

CRIMINAL LAW — EXPUNGEMENT
14-2-8463 In the Matter of Expungement of the Criminal Record of P.M., App. Div. (per curiam) (7 pp.) Defendant, who pleaded guilty to seven indictable offenses, including burglary and fraudulent use of credit cards, which resulted in a single sentencing and conviction date, appeals from the denial of his petition for expungement. The panel affirms, holding that the judge correctly determined that petitioner was not entitled to expungement under N.J.S.A. 2C:52-2a because he had committed multiple crimes, notwithstanding the single sentencing and conviction date. Moreover, the panel notes that even if the single-spree doctrine were still viable, the record does not support the application of the doctrine where the crimes involved different victims and occurred in a variety of settings over almost four months. [Decided Dec. 14, 2012.]
 
ENVIRONMENTAL LAW
17-2-8505 New Jersey Department of Environmental Protection Oversight Resource Allocation v. Nanak Auto Fuel Inc., App. Div. (per curiam) (9 pp.) Defendants operated a gas station and reported to the New Jersey Department of Environmental Protection (NJDEP) that hazardous substances had been discharged from underground storage tanks into the ground water. A remedial investigation report confirmed the presence of hazardous substances. Defendants appeal from the final agency decision of the NJDEP assessing a civil penalty against them of $20,000 for failure to sample potable wells, and $20,000 for failure to maintain and sample a “point of entry” treatment unit (POET) at a residence adjacent to their property. These requirements had been imposed pursuant to a NJDEP’s field directive. Defendants argue that the failure to report sampling results was due to noncompliance by their environmental consultants and that the contamination levels have now been found to be “de minimus.” The appellate panel affirms, finding that as owners and operators of the underground storage tanks, defendants were the responsible parties for noncompliance with NJDEP requirements. Also, the fact that the leak source has been eliminated does not absolve defendants from monitoring, sampling and reporting on the levels and spread of the existing contamination in the ground water. [Decided Dec. 19, 2012.]
 
FAMILY LAW
20-2-8445 Wernega v. Volpa, App. Div. (per curiam) (6 pp.) In this postjudgment matrimonial matter, plaintiff-mother appeals from an order granting defendant-father’s cross-motion seeking an order directing her to cooperate with the Rutgers University Financial Aid Office, to fully cooperate in their daughter’s effort to obtain financial aid, and provide Rutgers with all information required. The ruling was precipitated by the father’s certification that the financial aid office at Rutgers needed plaintiff to complete their daughter’s 2012 Free Application for Federal Student Aid application (FAFSA) for her to receive financial aid for tuition. The mother responded that their daughter did not live with her for the majority of the 12-month period prior to the date of the application, she would not qualify for financial assistance based on the father’s income, the completed form contained inaccuracies, and she would not sign a form with false and misleading information. As the court declined to direct the mother to sign the FAFSA form, and the mother was never contacted by Rutgers, she cannot be deemed to have failed to “fully comply.” In any event, the appeal is dismissed as moot where the child is in her senior year of college. The appellate panel finds no basis to issue an advisory opinion. [Decided Dec. 13, 2012.]
 
FAMILY LAW — ATTORNEY FEES
20-2-8488 Greeley v. Greeley, App. Div. (per curiam) (24 pp.) In this matrimonial matter, defendant appeals from the order denying his motion to vacate a default final judgment of divorce (FJD), filed eight months later, alleging there was excusable neglect and, in the alternative, contending the judgment was unconscionable and unfair. He also argues the court failed to make factual and legal findings as to the reasonableness and fairness of the judgment, inappropriately denied him the child dependency tax exemption, and awarded plaintiff excessive counsel fees. The appellate panel finds there was no excusable neglect. Further, as the trial judge noted, the FJD was based on minimal financial information within plaintiff’s possession because defendant failed to cooperate with discovery. As plaintiff testified at trial, defendant’s failure to provide his financial information was also the primary roadblock for a resolution during mediation. The appellate panel finds that the record is adequate to support the FJD. However, the panel remands the issue of attorney fees to the trial court. [Decided Dec. 18, 2012.]
 
FAMILY LAW — EQUITABLE DISTRIBUTION
20-2-8446 Dougherty v. Dougherty, App. Div. (per curiam) (20 pp.) Plaintiff seeks to vacate the equitable distribution provisions of a judgment of divorce (JOD). Plaintiff maintains discovery was improperly restricted, the trial judge’s factual findings were not supported by the record evidence, and, for the first time on appeal, argues the trial judge abused her discretion in refusing to recuse herself based on a prior work association with defendant’s counsel. The appellate panel finds the trial judge abused her discretion in denying plaintiff’s discovery motion seeking documentation of defendant’s bank accounts and erred in her determinations supporting the equitable distribution of the retirement assets titled to defendant and the allocation of tax liabilities. Consequently, the panel reverses the pretrial discovery order denying plaintiff’s request for proof of defendant’s bank accounts and the provisions of the JOD relating to the equitable distribution of the parties’ retirement assets and the outstanding income tax liabilities related to defendant’s 401(k) withdrawals. These issues must be retried on remand by a different Family Part judge. The remaining provisions of the JOD are affirmed. [Decided Dec. 13, 2012.]
 
INSURANCE LAW
23-2-8458 Chaitman v. Chubb Insurance Company of New Jersey, App. Div. (per curiam) (6 pp.) Plaintiffs filed suit against their homeowner’s insurance companies asserting they are entitled to be made whole by defendants for losses arising from Bernard Madoff’s investment fraud under their homeowner’s policies. In this consolidated appeal, the appellate panel affirms the grant of summary judgment dismissing plaintiffs’ complaints. The funds provided to Madoff by plaintiffs were never converted to securities or accounts. Since plaintiffs’ contention that the loss constituted a theft of something other than money — of accounts or of the contents of a bank vault or a bank safety deposit box — is not premised on the straightforward meaning of the policy language, and the terms were not ambiguous, the judge properly granted summary judgment. [Decided Dec. 14, 2012.]
 
INSURANCE LAW — MOTOR VEHICLES — ALTERNATIVE DISPUTE RESOLUTION
23-2-8459 USA Chiropractic v. NJ Re-Insurance Company, App. Div. (per curiam) (10 pp.) Plaintiff USA Chiropractic appeals from two orders denying its motion to vacate a personal injury protection (PIP) arbitration award and dismissing its complaint against defendant NAF/Forthright Solutions (NAF). Plaintiff primarily contends that it had insufficient notice of the internal appeals process of the PIP carrier, defendant NJ Re-Insurance (NJ-Re). The trial court concluded that plaintiff lacked standing for failure to use NJ-Re’s internal appeals process and NAF was immune from suit. It is undisputed that plaintiff possessed NJ-Re’s decision point review plan (DPRP), which explained NJ-Re’s internal appeals process and how to use it. Moreover, plaintiff possessed NJ-Re’s explanation of benefits (EOBs), all of which provide additional notice to plaintiff about the carrier’s internal appeals process. The appellate panel affirms the denial of plaintiff’s request to set aside the award, concluding the judge did not exceed the authority granted to him by the Alternative Procedure for Dispute Resolution Act. [Decided Dec. 14, 2012.]
 
INSURANCE LAW — UM/UIM COVERAGE
23-2-8447 Wadeer v. New Jersey Manufacturers Ins. Co., App. Div. (per curiam) (10 pp.) Plaintiffs appeal from an order granting summary judgment to their insurer, defendant New Jersey Manufacturers Insurance Company and dismissing their complaint alleging that NJM had acted in bad faith by failing to settle their first-party uninsured-motorist (UM) claim, forcing them to file litigation that ended in a judgment for plaintiff. The trial court granted summary judgment on the basis that because plaintiff had not asserted his bad-faith and related claims in the earlier UM personal-injury action, the doctrines of entire controversy and res judicata barred this bad-faith action. The panel affirms, concluding that his bad-faith action is barred by the entire-controversy doctrine. [Decided Dec. 13, 2012.]
 
JUDICIARY — RECUSAL
48-3-8473 In re Accutane Litigation, Law Div. — Atlantic Co. (47 pp.) In this brief relating to the Accutane multicounty litigation, defendants Hoffmann-La Roche Inc. and Roche Laboratories request that the court disqualify itself from further oversight of the Accutane multicounty litigation and document the conduct that defendants assert demonstrates both bias against Roche and the appearance of that bias. [Decided Dec. 11, 2012.]
 
LABOR AND EMPLOYMENT
25-2-8474 C. Thomas Beneventine v. Siemens Hearing Instruments Inc., App. Div. (per curiam) (10 pp.) Plaintiff appeals from an order granting summary judgment to defendant and dismissing plaintiff’s claims arising out of the parties’ consulting contracts. Plaintiff filed suit nearly six years after the end of his last consulting contract, claiming that defendant owed him unpaid salary. The appellate panel finds the trial court correctly granted summary judgment to defendant based on a release executed by plaintiff. The panel rejects plaintiff’s argument that the release was executed under the parties’ mutually mistaken belief that plaintiff was not owed any salary at the time of the termination of his consulting relationship. The panel further rejects plaintiff’s argument that his unilateral mistake was the reason he signed the release and that defendant should be equitably estopped from enforcing its terms against him. Plaintiff signed the release and specifically promised not to sue defendant in exchange for receiving $10,000 offered by defendant. Plaintiff’s lawsuit was a direct breach of that promise. Further, plaintiff’s equitable-estoppel argument fails where there is nothing inequitable in enforcing the terms of the release. [Decided Dec. 17, 2012.]
 
25-2-8489 Townsend v. Board of Review, App. Div. (per curiam) (6 pp.) Appellant was terminated from his position as a bus driver after having exhausted his temporary disability and vacation time and having failed to provide any documentation verifying that he could return to work. He appeals from the Board of Review’s decision denying him unemployment benefits because he voluntarily left his position with New Jersey Transit without good cause attributable to the work. The panel affirms, finding that where plaintiff failed to communicate with his employer, provide necessary documentation or even appear for hearings scheduled to address his status, the board’s judgment that he left his position voluntarily without good cause attributable to the work was amply supported by the record and its action was not arbitrary, capricious or unreasonable. [Decided Dec. 18, 2012.]
 
25-2-8490 Townsend v. Amalgamated Transit Union Division 540, App. Div. (per curiam) (8 pp.) Pro se appellant, a former bus driver for New Jersey Transit, appeals from the grant of summary judgment dismissing his complaint against defendant-union to which he belonged while employed at NJ Transit. The panel affirms, finding that viewing the evidence in the light most favorable to plaintiff, he fell far short of establishing material issues of fact or a colorable claim of law for relief against the union since, in the absence of a grievance, or any other appropriate response to the numerous communications made by New Jersey Transit as well as the union, the union had no obligation to do anything further on behalf of plaintiff. [Decided Dec. 18, 2012.]
 
LAND USE AND PLANNING
26-2-8475 Metropolitan Plant Exchange Inc. v. R&R Trees, L.L.C., App. Div. (per curiam) (9 pp.) Plaintiffs appeal from the dismissal of their complaint in lieu of prerogative writs challenging defendant Fort Lee Zoning Board of Adjustment’s grant of use and bulk variances to defendant R&R Trees to operate a seasonal Christmas tree lot in a residential area at the site of a nonconforming commercial use property — a seasonal hot dog eatery. The panel affirms, finding that, given the level of deference owed to the board and particularly its knowledge of the characteristics of Fort Lee, there is no basis to disturb its findings that both positive and negative criteria were met since the application both promoted the general welfare, as the unused outdoor space in the middle of a commercially mixed-use area was particularly suited to the proposed use and resulted in no detriment to the property or surrounding area. There is substantial support for these findings in the record and the board did not act arbitrarily or capriciously in granting the variance. [Decided Dec. 17, 2012.]
 
LANDLORD/TENANT LAW
27-2-8460 Rusmar Properties v. Andrade, App. Div. (per curiam) (6 pp.) Defendant-tenants appeal from the judgment of possession entered in favor of their landlord based on nonpayment of rent after they sought to apply their security deposit to the rent due, contending that they were entitled to do so because plaintiff violated N.J.S.A. 46:8-19c. The panel affirms, finding that plaintiff did not defraud defendants or divert their security deposit to his own use where defendants knew the amount of their security deposit and they did not dispute that plaintiff deposited it into a bank account where it accrued annual interest and thus defendants suffered no prejudice by the lack of the 30-day written notice required by N.J.S.A. 46:8-19c. Moreover, plaintiff immediately responded when informed of the notice and payment deficiencies, confirming the amount of the security deposit, the identity of the bank, the type of account and the interest rate, which response constituted the annual notice and interest payment required by the statute, curing any defect and vitiating any right defendants had to apply their security deposit to the rent due. [Decided Dec. 14, 2012.]
 
27-2-8476 Sheridan v. Heritage Gateway, L.L.C., App. Div. (per curiam) (16 pp.) Heritage Gateway is the owner of a high-rise office building in Newark in which Prudential Financial leases space. After Sheridan, a visitor to the property, filed this action for injuries allegedly sustained in a fall on the property, Gateway sought a defense and indemnification from Prudential pursuant to the terms of their lease. After Prudential refused to provide either, Gateway filed a third-party complaint seeking a defense and indemnification. The court granted summary judgment in favor of Prudential. Gateway filed a motion for reconsideration, newly arguing that Prudential breached its lease by failing to provide liability insurance for Gateway as an additional primary insured. On appeal from the denial of that motion, Gateway abandons its argument regarding indemnification and asks the court to interpret the duty to defendant and whether primary coverage was given to it pursuant to the lease. The panel affirms, holding that the lease triggered neither indemnification nor a duty to defend the landlord and that Gateway’s third-party complaint did not adequately alert the court and Prudential that it was seeking breach-of-contract remedies for Prudential’s alleged failure to procure insurance on Gateway’s behalf. Rather, Gateway introduced a new issue regarding Prudential and its obligation to provide insurance coverage for Gateway, completely reframing the error it attributed to the motion court using an issue never before that court in the prior motions. [Decided Dec. 17, 2012.]
 
27-2-8477 Luna v. Salvio, App. Div. (per curiam) (8 pp.) Defendant Hedy Salvio (landlord) appeals from the judgment in favor of plaintiff Joseph Luna (tenant) following a bench trial. When Hurricane Irene struck New Jersey, significant flooding damaged the first-floor apartment rented by Luna. Luna sent a letter to Salvio, which stated that he intended to vacate the premises and requesting the return of his security deposit. Salvio wrote a letter to Luna, explaining that, after applying the security and pet deposits, Luna owed Salvio $425.61. Luna responded by filing a complaint seeking $3,000 in damages. At trial, the court heard differing accounts about the extent of the damage to the premises, the quantity of water that entered, and the restoration efforts undertaken. The judge also learned that the premises had previously been flooded. The appellate panel affirms the judgment in favor of Luna, finding the trial judge did not abuse his discretion in determining that Salvio’s material misrepresentation, that is her failure to disclose the potential for flooding of the premises, made the lease voidable when Hurricane Irene rendered the apartment uninhabitable and destroyed most of Luna’s belongings. Also, the panel declines to disturb the factual conclusions of the judge. [Decided Dec. 17, 2012.]
 
LEGAL PROFESSION
04-2-8491 New Century Financial Services Inc. v. C&M Pools & Installations Inc., App. Div. (per curiam) (6 pp.) Plaintiff New Century Financial Services Inc. obtained a judgment against Keith Wilson, a part-time seasonal employee of defendant. Plaintiff served a wage garnishment on defendant. When no payments were received, plaintiff sent written inquiries to defendant regarding its failure to comply with the wage execution order and then filed suit. A default judgment was entered against defendant for the full amount of the judgment against Wilson plus interest and costs. Defense counsel sent “a safe harbor letter” to plaintiff’s attorneys, Pressler & Pressler, claiming “[t]here was no legal or factual basis for the entry of a default judgment against the defendant for the full amount owed by the debtor” and demanding that plaintiff vacate the default judgment. Defendant then moved to vacate the default judgment. The parties entered into a consent order; in addition to vacating the default judgment and dismissing plaintiff’s complaint, the consent order required defendant to comply with the writ of execution should Wilson become employed by defendant until the judgment was satisfied. Here, the appellate panel affirms the court’s denial of defendant’s motion for sanctions under Rule 1:4-8 against plaintiff’s attorneys. [Decided Dec. 18, 2012.]
 
PUBLIC RECORDS
52-2-8506 M.G. v. Eastern Camden County Regional School District Board of Education Records Custodian, App. Div. (per curiam) (14 pp.) Plaintiff M.G., a student, appeals from the dismissal of his claim that defendant, Eastern Camden County Regional School District Board of Education, violated the Open Public Records Act (OPRA). While a prevailing party fee dispute was pending remand from the Third Circuit, M.G. sought school records of attorney bills and other documents related to his federal claim against the school. The appellate panel affirms the findings by the Law Division judge that the documents provided by the board were adequate and responsive to his requests, and other requested documents were protected by the attorney-client privilege or otherwise not subject to OPRA. [Decided Dec. 19, 2012.]
 
PUBLIC RECORDS — ATTORNEY FEES
52-2-8448 Wolosky v. Sparta Township, App. Div. (per curiam) (9 pp.) Defendant appeals from a final determination of the Government Records Counsel awarding plaintiff attorney fees based on a lodestar, as a prevailing party in a proceeding brought pursuant to the Open Public Records Act. The panel affirms the finding that plaintiff, who succeeded on only three of his 71 challenged redactions to the records he sought, nevertheless was a prevailing party since he secured some of the relief he sought. However, it holds that the GRC erred in awarding him an attorney fee based on the full lodestar fee in light of the minimal success he achieved; it should have reduced the lodestar to substantially reflect the limited success he achieved on his complaint. Exercising its original jurisdiction, the panel awards a reasonable attorney fee of $500. [Decided Dec. 13, 2012.]
 
52-2-8449 Wolosky v. Sparta Township, App. Div. (per curiam) (9 pp.) Defendant appeals from a final determination of the Government Records Council that found plaintiff — who requested copies in the Windows WAV format of audio recording for township council meetings and also township attorney legal bills and vendor lists — was the prevailing party in a proceeding brought under the Open Public Records Act and awarded him attorney fees of $6,097. The panel finds that plaintiff was a prevailing party but that his success was limited in light of its holdings that the GRC erred by ordering the township to provide plaintiff with recordings of the council’s meetings in the requested format after the records custodian offered to make the conversion to the requested format on submission of a service fee and also offered to provide a free download of the software needed to play the audio recordings, which were recorded in a different format; plaintiff prevailed on his challenge to the special service charge that the custodian proposed to impose for conversion of the audio records but that the GRC should have rejected that claim; although the township could impose a SSC for the conversion of the township’s vendor list and legal bills to an electronic format, the fee had to be based on the labor cost of the lowest-paid employee qualified to make the conversion, not the higher rate being charged by the township. Therefore, the award of an attorney fee based on the full lodestar was not reasonable. Exercising its original jurisdiction, the panel awards an attorney fee of $500. [Decided Dec. 13, 2012.]
 
52-3-8461 Rivera v. Office of the Bergen County Prosecutor, Law Div. — Bergen Co. (Doyne, A.J.S.C.) (17 pp.) Plaintiff seeks an award of counsel fees and costs as the prevailing party in this matter filed pursuant to the Open Public Records Act in which he sought disclosure of redacted names and addresses of persons subjected to the use of force by police officers on 1,079 use-of-force reports and in which the court held that the names on the UFRs must be released in nonredacted form unless there was an indication on the UFR that the person was suicidal or emotionally disturbed or a similar characterization of a purported psychological condition. The court deems plaintiff the prevailing party as his application for the release of the requested documents was successful; concludes that the balance of factors in RPC 1.5(a) weighs in favor of upholding plaintiff’s counsel fee application as reasonable; and deems the application for a contingency enhancement warranted. It awards $10,445.22. [Filed Dec. 11, 2012.]
 
TAXATION — SALES AND USE TAX
35-5-8450 New Cingular Wireless PCS, L.L.C. v. Director, Division of Taxation, Tax Ct. (DeAlmeida, J.T.C.) (3 pp.) Plaintiff New Cingular Wireless PCS, L.L.C., seeks a refund of New Jersey sales and use tax computed on charges for Internet access billed to and collected from plaintiff’s customers and remitted to the director of the Division of Taxation. During the administrative appeal process, plaintiff submitted information pertaining to each of the customers that will ultimately receive the refunded sales tax, including customer names, account numbers and service records. Plaintiff intends to submit similar customer information to the court. Plaintiff filed a motion for a protective order seeking to shield that information from public disclosure. Because the information plaintiff seeks to protect from disclosure is excluded from public access by virtue of a federal statute, it is not necessary for plaintiff to satisfy the standards of Rule 1:38-11 to maintain the information’s confidentiality. Instead, the court will enter an order declaring the information is confidential under federal law and not subject to disclosure and establishing a procedure for its submission. [Decided Dec. 10, 2012.]
 
TORTS — TRADE SECRETS
36-4-8462 SCS Healthcare Marketing, L.L.C. v. Allergan USA Inc., Ch. Div. — Bergen Co. (Carroll, J.S.C.) (12 pp.) Plaintiff, which provides promotional marketing services to the health-care industry, contracted with defendant Allergan to provide certain services, including managing Allergan’s speakers bureau program for its eye-care products. Allergan then selected defendant Call Inc., d/b/a MedForce, to manage its speakers bureau at the conclusion of its agreement with SCS. Plaintiff filed this action alleging that during the transition period and with the help of Allergan, MedForce repeatedly accessed its consortium of research and education portal in violation of the New Jersey Trade Secrets Act. Defendants move to dismiss. Construing N.J.S.A. 56:15-9(a) and (b) in pari materia, the court concludes that in enacting the Trade Secrets Act, the Legislature intended to preserve, not abrogate or pre-empt, the rights and remedies afforded aggrieved litigants under the common law and it denies defendants’ motion to dismiss, on the grounds of pre-emption, the claims for misappropriation of confidential information in violation of the common law, conversion, trespass to chattels, unfair competition, tortious interference with contract and civil conspiracy. However, the motion to dismiss the claim for conversion is granted as plaintiff has cited no authority that would allow the claim to proceed as to intangible property such as trade secrets, and as to count eight, inevitable disclosure, because plaintiff cites no law contrary to defendants’ argument that New Jersey does not recognize the doctrine as a viable cause of action. [Filed Dec. 7, 2012.]
 
TRUSTS AND ESTATES — LEGAL PROFESSION
38-2-8507 In the Matter of the Estate of Krzeminski, App. Div. (per curiam) (16 pp.) Attorney Joel Davies appeals from an order denying his motion for reconsideration of attorney fees the Probate Part awarded to him following litigation of a contested will. He contends that the court reduced his requested fee based on an improper policy of capping the hourly rate where the attorney fees are to be paid out of the estate. Although the panel agrees with Davies that a judge’s personal policy or a local court policy should not be the basis for determining reasonable attorney fees pursuant to Rule 4:42-9, it finds that the judge in this case did not abuse his discretion in reducing the $350 hourly rate Davies requested based on his finding that all of the attorneys involved in the matter had impliedly agreed to the reduced rate at the time of the settlement discussions, and it affirms the judge’s order. [Decided Dec. 19, 2012.]
 
WORKERS’ COMPENSATION
39-2-8451 Cordeiro v. Danny’s Construction Co., App. Div. (per curiam) (8 pp.) Sentinel Insurance Company appeals from the order of the Division of Workers’ Compensation. The parties agreed that because petitioner Daniel Cordeiro is the president and owner of Danny’s Construction Co., Sentinel is the only respondent in interest. The compensation judge determined that Cordeiro’s severe injuries were compensable under the New Jersey Workers’ Compensation Act. Sentinel argues that because Cordeiro was injured installing a skylight in his own home, the accident did not arise out of and in the course of his employment. Cordeiro and his employees, however, worked at the home on a normal workday, during normal work hours, performing construction work for which Danny’s had obtained construction permits. Danny’s acted as a legitimate general contractor hiring subcontractors in arm’s length transactions. The employees were paid by Danny’s for their work. The evidence supports the findings of the compensation judge, whose expertise and review of the witnesses’ testimony led her to conclude that Cordeiro “was acting within the course and scope of his employment.” [Decided Dec. 13, 2012.]
 
39-2-8508 Terebush v. Creative Safety Products, App. Div. (per curiam) (5 pp.) Petitioner George Terebush appeals from the dismissal of his workers’ compensation claim petition, in which the compensation judge found that his automobile accident did not arise out of and in the course of his employment. This appeal involves the interpretation of the “going and coming rule.” Terebush, who lived in Avenel, was employed by Creative Safety Products as a magician and puppeteer and conducted school assembly programs. Creative’s office was in South Hackensack. Terebush received his work assignments and pay by mail. Terebush was paid a salary. He drove a vehicle owned by Creative from his home to various schools and did not use the vehicle for his personal use. Terebush did not receive any specific payment for mileage or travel time above his annual salary. On his way home from a school located approximately 40 miles from his home, Terebush was involved in the car accident. The appellate panel affirms the dismissal of his workers’ compensation claim, finding the compensation judge reasonably found that Terebush’s place of employment was at the school where he performed on a particular day and that the school located 40 miles from his home did not constitute a distant job site. [Decided Dec. 19, 2012.]
 
FEDERAL COURT CASES
 
ALTERNATIVE DISPUTE RESOLUTION
03-7-8454 Laborer’ Local Union Nos. 472 and 172 v. Highway Safety Systems, U.S. Dist. Ct. (Thompson, U.S.D.J.) (2 pp.) This matter is before the court on a motion to confirm the arbitration award brought by petitioners Laborers’ Local Union Nos. 472 and 172; Laborers’ Local Union Nos. 472 and 172 Welfare and Pension Funds and Safety, Education and Training Funds; and Zazzali, Fagella, Nowak, Kleinbaum & Friedman. This motion is unopposed by respondent Highway Safety Systems. The court finds that respondent is bound by a collective-bargaining agreement (CBA) with petitioner Laborer’s Local Union Nos. 472 and 172 Benefit Funds (the funds). Under the CBA, controversies concerning delinquent payments to the funds are submitted to arbitration. Respondent was delinquent in making required payments under the CBA. After due notice to respondent, the arbitrator held a hearing and issued a written award. Having considered the written submissions of petitioners; and in light of respondent’s failure to oppose the motion; and for good cause shown, the court grants petitioners’ motion to confirm the arbitration award. [Filed Dec. 10, 2012.]
 
BANKRUPTCY
42-6-8465 In re National Pool Construction Inc., U.S. Bank. Ct. (Ferguson, U.S.B.J.) (6 pp.) National Pool Construction Inc. Liquidating Trust appealed the bankruptcy court’s order that dismissed the adversary complaint against Provident Bank with prejudice. The district court found that the court applied an inappropriate standard in deciding appellee’s Rule 12(c) motion, vacated the order dismissing the adversary complaint and remanded. In reaching its conclusion that the complaint was time-barred, the bankruptcy court rejected the trust’s legal arguments that § 550 was an independent cause of action, and that the New Jersey Fraudulent Transfer Act provided a longer statute of limitations. As the district court noted, the court applied an incorrect legal standard in deciding whether the trust’s failure to timely file a complaint should be forgiven under the doctrines of equitable tolling and adverse domination. The court looked to matters outside the record, inadvertently treating the motion as one for summary judgment, and did not provide the trust with “a reasonable opportunity to present all the material that is pertinent to the motion.” The court will provide the trust with such an opportunity. If the trust cannot establish that it was prevented from timely filing the complaint against Provident, then equitable tolling would not apply and the case will remain dismissed. [Filed Dec. 10, 2012.]
 
42-7-8466 Jones v. Uhrmann, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (8 pp.) Appellant, whose Chapter 7 bankruptcy petition’s statement of financial affairs failed to list four businesses in which he was involved, appeals from the district court’s grant of appellee-creditors’ summary judgment motion, its denial of his bankruptcy discharge, and its denial of his cross-motion to dismiss. The court affirms, finding that the bankruptcy court appropriately weighed the evidence and did not err in denying discharge based on 11 U.S.C. §§ 727(a)(4)(A) and 727(a)(3) in light of appellant’s failure to list the businesses at issue as well as income that he reported to the Internal Revenue Service, and that nothing in the record reflects that the court exceeded its jurisdiction by addressing matters outside the scope of allegations within the context of bankruptcy. [Filed Dec. 10, 2012.]
 
42-6-8479 In re Kara Homes Inc., U.S. Bank. Ct. (Kaplan, U.S.D.J.) (7 pp.) Before the court is a motion for an order expunging claims filed on behalf of the liquidating trustee. The trustee seeks an order reducing the claim of Lehman Commercial Paper Inc. against Kara Homes Inc. (the debtor) by the full amount of Lehman’s credit bid for the debtor’s asset; resulting in an unsecured deficiency claim of $2,953,802.41. Lehman opposes the trustee’s motion and submits that Lehman’s claim should not be reduced by the full amount of the credit bid, but rather that a valuation hearing is necessary to establish the deficiency. The court holds that after-the-fact judicial re-creation of a market sale is not warranted where the court reasonably can infer from the circumstances of the sale that the amount of a credit bid by the secured party reflects the bidder’s informed assessment of the collateral’s fair market value. The court grants the trustee’s motion in part and denies Lehman’s request for a valuation hearing. There is nothing to suggest that the amount of the credit bid differs from the actual value at the time of the auction. In the absence of a business justification for bidding a value greater than the value of the property, the court will not compel a valuation hearing. [Filed Dec. 11, 2012.]
 
42-6-8510 In re Cordova, U.S. Bank. Ct. (Winfield, U.S.B.J.) (8 pp.) Jose Cordova and Nancy Pavic filed for relief under Chapter 7 of the bankruptcy code. The trustee moves to compel the debtors to turn over postpetition rental income to the trustee from property located in Paterson. The debtors opposed the motion, arguing that the rental income at issue is not property of their bankruptcy estate and not recoverable by the trustee. The court denies the motion, holding that because of the prepetition absolute assignment of rents to the lender, the rents from the debtors’ property are not property of the estate under §§ 541(a)(1) or (a)(6) and the trustee may not compel their turnover. Further, because the rents are not property of the estate, the trustee lacks standing to compel turnover of the rents. [Filed Dec. 17, 2012.]
 
BANKRUPTCY — ADVERSARY PROCEEDINGS
42-6-8481 Forman, Trustee v. Carver Federal Savings Bank, U.S. Bank. Ct. (Steckroth, U.S.B.J.) (7 pp.) Defendants filed motions seeking summary judgment on the claims asserted against them in this adversary proceeding by the Chapter 7 trustee. The trustee’s complaint seeks to invalidate defendants’ liens on the debtor’s assets pursuant to the “Public Utility Law” that requires approval from the Board of Public Utilities (BPU) before a public utility may grant a lien. Defendants argue that (1) provisions of the Uniform Commercial Code, as adopted and incorporated into New Jersey statutes, supersede the Public Utility Law, and (2) even if the Public Utility Law governs, consent is not required by the BPU because an exception provides for financing purchases of sanitation vehicles and the granting of security interests. The court finds the provisions of the UCC expressly supersede the requirements of the Public Utility Law on which the trustee relies. Defendants’ liens are not invalid due to the debtor’s failure to obtain approval prior to granting the liens, thus defendants’ motions for summary judgment are granted on these grounds. Alternatively, the court finds the liens are valid and enforceable where the liens were granted to finance sanitation collection vehicles and fall within the exception, removing the approval requirement. [Filed Dec. 11, 2012.]
 
BUSINESS ENTITIES
12-7-8482 News America Marketing In-Store Services, L.L.C. v. Floorgraphics Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (8 pp.) The parties, business rivals who provided in-store advertising, promotion and sales merchandising services for sellers of consumer product goods, previously engaged in litigation in which FGI accused NAM of unfair business practices during which Gary Henderson, a former NAM employee, testified that he had neither accessed FGI’s website nor directed anyone else to do so. That litigation ended in a settlement that included a mutual release. After coming to believe that some of the assets for which it paid FGI as part of the settlement were actually invalid or nonexistence, NAM filed another lawsuit that is presently pending. After discovering evidence that allegedly shows that Henderson committed perjury, FGI unsuccessfully moved to reopen the initial litigation and then to amend its answer in the second case to assert counterclaims for fraud. NAM then filed this declaratory judgment action seeking a judicial declaration that the terms of the mutual release bar FGI from asserting its fraud claims. FGI moves to dismiss. Based on consideration of the three Step-Saver factors, the court finds that NAM has sufficiently stated a claim for relief under the Declaratory Judgment Act and denies FGI’s motion to dismiss pursuant to Rule 12(b)(6). [Filed Dec. 12, 2012.]
 
CIVIL PROCEDURE — ABSTENTION
07-7-8467 The Netherlands Insurance Company v. Precision Electronic Glass, U.S. Dist. Ct. (Hillman, U.S.D.J.) (15 pp.) Before the court are two motions: defendant Addison Automatic Inc.’s motion to dismiss for lack of personal jurisdiction; and the joint motion to dismiss of defendants Addison, Precision Electronic Glass Inc. (PEG) and Philip Rossi pursuant to the abstention doctrine. In this matter, two insurance companies request the court to declare their rights and responsibilities under several policies. Plaintiffs, The Netherlands Insurance Company and Excelsior Insurance Company, are general and excess liability insurers. Addison, as class representative, filed a class-action suit against PEG in Illinois state court alleging violations of the Telephonic Consumer Protection Act, the Illinois Consumer Fraud and Deceptive Business Practices Acts, and common-law conversion, on the basis that PEG sent unsolicited “junk” facsimiles to members of the class. Because a similar suit is under way in Massachusetts state court, the court grants the joint motion of all defendants based on federal abstention. Addison’s motion to dismiss for lack of personal jurisdiction is denied as moot. [Filed Dec. 10, 2012.]
 
CIVIL PROCEDURE — CLASS ACTIONS
07-7-8492 Williams v. BASF Catalysts, L.L.C., U.S. Dist. Ct. (Chesler, U.S.D.J.) (41 pp.) Before the court are several motions to dismiss the amended class action complaint filed by defendants. This lawsuit, filed as a putative class action, seeks nationwide relief for the alleged misconduct of defendant BASF (and/or its predecessors) and its then-counsel, Cahill Gordon & Reindel (Cahill), in connection with thousands of asbestos exposure lawsuits filed by individuals primarily in state courts throughout the United States over a period of more than 25 years. Plaintiffs contend that their personal-injury lawsuits were dismissed, voluntarily or otherwise, because BASF and Cahill deliberately concealed the fact that Englehard talc, sold under the trade name “Emtal,” contained asbestos. In spite of their effort to redraw this action to avoid a confrontation between the respective roles of state and federal courts, the court concludes that the entire amended complaint must be dismissed both as barred by the Anti-Injunction Act and for failure to state a claim on which relief may be granted. [Filed Dec. 12, 2012.]
 
CIVIL PROCEDURE — SERVICE OF PROCESS
07-7-8493 Veverka v. Royal Caribbean Cruises Ltd., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (14 pp.) Plaintiff is an 81-year-old woman who suffered a slip and fall on defendant’s cruise ship, which resulted in emergency hip replacement surgery in New Jersey and consequential medical treatments, the effect of which results in ongoing pain, discomfort and need for assistance with basic daily activities. Defendant Royal Caribbean Cruises Ltd. has filed this motion to dismiss and motion to transfer venue to the U.S. District Court of the Southern District of Florida, Miami Division, as per a forum-selection clause on the cruise ticket contract. The lynchpin issue here is the reasonableness of the forum-selection clause, and specifically whether the forum is so gravely difficult and inconvenient that plaintiff will be deprived of her day in court. Given plaintiff’s age, medical condition, need for ongoing treatment and assistance, and defendant’s contacts and proximity in and near New Jersey, and associated expense and time necessary for litigation, the factors and the interests of justice clearly weigh in favor of New Jersey as the proper forum. Defendant’s motions are denied. [Filed Dec. 11, 2012.]
 
CIVIL RIGHTS
46-7-8511 Mendez v. New Jersey State Lottery Commission, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (17 pp.) In this action, plaintiff, who claims to have purchased a winning lottery ticket later found and cashed in by certain of the nonstate defendants, alleges that the state defendants deprived him of his procedural due process rights and to a default judgment in his earlier state case, aided by the nonstate defendants (who include plaintiff’s former attorney), in violation of 42 U.S.C. § 1983; the state defendants deprived him of his default judgment by abuse of process; and the state and nonstate defendants deprived him of his due process rights to a fair trial. He asserts that the later two claims allege unspecified civil rights violations under § 1983 and conspiracy to interfere with civil rights pursuant to § 1985. The court holds, inter alia, that plaintiff’s complaint fails to state a cause of action under 42 U.S.C. § 1983 or § 1985 against the moving defendants as his claims against the state defendants are barred by sovereign immunity under the Eleventh Amendment; his claims as to the nonstate defendants fail as they are not state actors within the meaning of § 1983 and plaintiff has failed to allege that any of their actions were motivated by a class-based invidiously discriminatory animus. Defendants’ motion to dismiss are granted. [Filed Dec. 17, 2012.]
 
46-7-8512 Mikhaeil v. Santos, U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiff Adel Mikhaeil brings this § 1983 action for false arrest and false imprisonment against defendants, including police officers and the Jersey City Police Department (JCPD). On Aug. 7, 2008, defendant Det. Broady took Angel Santos’ statement that Plaintiff had threatened him. Santos reported that he was a witness for the Attorney General’s Office and the Hudson County Prosecutor’s Office in a case against Mikhaeil. Santos stated that Mikhaeil and Michaelangelo Conte, a reporter for the Jersey Journal, were in a car outside of his home, and as they were driving off, Mikhaeil screamed “You rat! You’re going to get your[s], You’re dead, you rat ... by the end of the month it’s gonna be two dead rats!” Plaintiff was arrested and charged with making terroristic threats and witness tampering. Mikhaeil later spoke with Conte, who told Mikhaeil that he had informed the JCPD and the Hudson County Prosecutor’s Office that Mikhaeil was not in the car with him on Aug. 7, 2008. The criminal proceeding against Mikhaeil was dismissed. Here, the court grants defendants’ motion for summary judgment, finding plaintiff failed to establish the violation of a constitutional right because the undisputed facts show law enforcement had probable cause to arrest him. [Filed Dec. 14, 2012.]
 
CIVIL RIGHTS — § 1983
46-7-8468 Hicks v. Swanhart, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (6 pp.) This 42 U.S.C. § 1983 action arises out of the arrest of plaintiff for which he was subsequently convicted of driving while intoxicated and related charges and alleges that the arrest constituted an illegal search and seizure and false arrest. Defendants move to stay all proceedings pending resolution of plaintiff’s currently pending appeal of his criminal conviction. The court grants the motion, finding that staying the case will simplify issues and promote judicial economy and that not granting the stay would prejudice defendants by causing them to incur litigation expenses exploring issues the appellate decision will undoubtedly narrow and by requiring duplicative efforts when the appellate decision might narrow or moot the remaining issues. [Filed Dec. 10, 2012.]
 
CONSUMER PROTECTION
09-7-8494 Robinson v. Hornell Brewing Co., U.S. Dist. Ct. (Simandle, U.S.D.J.) (29 pp.) Plaintiff filed this suit as a putative class action alleging that he and other citizens of New Jersey were induced to buy defendants’ Arizona Brand beverages because of misleading labels touting “All Natural” ingredients when the beverages contained high fructose corn syrup, which plaintiff asserts is not a natural ingredient. The court denied plaintiff’s motion to certify because plaintiff lacked standing and the Third Circuit denied his petition for permission to appeal. Plaintiff now seeks a dismissal without prejudice, arguing that the court lacks subject-matter jurisdiction after denying certification of the class. Defendants oppose the motion and filed a cross-motion for partial summary judgment on plaintiff’s claims for injunctive relief. The court holds that it does not maintain jurisdiction under the Class Action Fairness Act of 2005 after denying class certification for lack of subject-matter jurisdiction due to the sole plaintiff’s lack of standing, and because it lacks an independent basis for jurisdiction over plaintiff’s individual money damage claims and it declines to exercise supplement jurisdiction over the damage claims, it grants plaintiff’s motion to dismiss without prejudice. It therefore lacks jurisdiction to rule on defendants’ cross-motion for partial summary judgment. [Filed Dec. 13, 2012.]
 
09-7-8495 Goodrich Management Corp. v. Afgo Mechanical Services Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (7 pp.) In these putative class actions, in which plaintiffs seek to represent classes of persons who allegedly received unsolicited faxes from defendants in violation of the Telephone Consumer Protection Act, defendants move to deny class certification. The court holds that for substantially the same reasons set forth in Bais Yaakov of Spring Valley v. Peterson’s Nelnet LLC, the court is not required by 47 U.S.C. § 227(b)(3) to, nor should it, forgo the class certification requirements in Federal Rule of Civil Procedure 23 by instead applying New Jersey class-action law to plaintiffs’ TCPA class claims brought in federal court. Thus, the relief sought by defendants seeking dismissal predicated on the court first determining that it should apply a state law that purportedly bars class certification of private TCPA actions is denied. [Filed Dec. 14, 2012.]
 
CONSUMER PROTECTION — CLASS ACTION
09-7-8455 Kalow & Springut, L.L.P. v. Commence Corporation, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (11 pp.) Plaintiff Kalow & Springut filed a renewed motion for class certification as to its proposed New Jersey Consumer Fraud Act (NJCFA) class-action claim. On March 20, 2006, across the United States (and allegedly the globe), customers using defendant Commence Corporation’s CRM software experienced the same problem: the “synchronization engine” in the software stopped working. The parties agree that this simultaneous failure was caused by a defect in the software code when it was written in the mid-1990s. Plaintiff, a law firm, contends that this defect was intentionally inserted into the code to act like a “time bomb,” ensuring that on the predetermined date Commence software users would have no choice but to purchase a software fix or upgrade their software. Commence Corporation, on the other hand, asserts that the defect was the result of a mistake, and they were not aware of it until the failure occurred. The court holds that the NJCFA applies to all proposed class members’ claims. This conclusion in turn leads to the conclusion that common issues of fact and law will predominate the litigation of this suit; therefore, certification of the NJCFA claim is appropriate. Plaintiff’s motion is granted. [Filed Dec. 7, 2012.]
 
CONTRACTS — FRANCHISES
11-7-8469 Lawn Doctor Inc. v. Rizzo, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (22 pp.) Plaintiff filed this action seeking monetary and injunctive relief based on the failure of defendants, who had defaulted on their franchise agreement with plaintiff resulting in its termination, to abide by their post-termination obligations, including their noncompete obligation. After the court granted plaintiff preliminary relief but declined to enforce the noncompete clause because it was overbroad, the parties agreed to abide by most of the restrictive covenant and asked the court for an opportunity to brief the issue of whether the irrigation services being provided by defendants fell within the definition of competitive business in the modified restrictive covenant. Finding that the parties reached an enforceable settlement agreement and that their failure to discuss whether irrigation services fell within the definition of competitive business did not change the fact that their agreement was binding; that there is an actual justiciable controversy between the parties regarding whether defendants are violating the settlement by operating an irrigation services business; that giving the terms their clear and ordinary meaning, it is clear than an irrigation services business is a competitive business prohibited by the parties’ settlement; that the restrictive covenant protects plaintiff’s legitimate interest in protecting its trade secrets, confidential information, customer relationships and good will; and that the restrictive covenant does not impose an undue hardship on defendants and is not injurious to the public, the court finds that the restrictive covenant is valid and enforceable. Plaintiff’s motion for a declaratory judgment is granted. [Filed Dec. 11, 2012.]
 
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-8496 Cooper v. Pressler & Pressler. L.L.P., U.S. Dist. Ct. (Hillman, U.S.D.J.) (24 pp.) Plaintiff asserts claims under the Fair Credit Reporting Act and the Fair Debt Collection Practices Act, along with several New Jersey state law claims arising out of defendants’ alleged collection efforts on plaintiff’s credit-card account. Defendant Capital One moves to dismiss. The court finds that Capital One was a creditor with respect to plaintiff’s alleged debt and that the complaint fails to state a claim against it under the FDCPA because it does not allege facts sufficient to show that Capital One meets the definition of debt collector under the act. The claim under the FDCPA is dismissed with prejudice. The claim under the FCRA against Capital One is dismissed because plaintiff has failed to allege that Capital One, as opposed to any other defendants, engaged in any actions that violated the FCRA. Moreover, even accepting as true the allegation that Capital One initiated a “soft pull” of plaintiff’s credit report, it clearly had a permissible purpose for obtaining plaintiff’s credit report under FCRA. This claim is dismissed with prejudice. The court declines to exercise supplemental jurisdiction over plaintiff’s state law claims and dismisses those claims without prejudice. [Filed Dec. 17, 2012.]
EVIDENCE
19-7-8497 Coles v. Carlini, U.S. Dist. Ct. (Simandle, U.S.D.J.) (7 pp.) In his dispute arising out of an allegedly illegal traffic stop of plaintiffs by the New Jersey State Police, plaintiffs’ appeal from the magistrate judge’s nondispositive order denying their motion to deem a videotape exhibit a “true, correct and accurate and admissible transcription and copy of the original VHS videotape recording” of the stop by the State Police, made after defendants had admitted the authenticity of the video in their motion to dismiss but their answer denied allegations in the amended complaint because the video had not been authenticated. Noting the that magistrate judge ordered defendants to cure problems with their answer by eliminating denials based on the videotape exhibit, rendering unnecessary any decision on the authenticity of the exhibit until such time as its authenticity becomes a material issue, the court affirms, finding that this solution was within the magistrate judge’s discretion and that there was no abuse of discretion. In light of both sides’ agreement during briefing this motion that the videotape is authentic (although defendants sought to reserve the right to challenge it if testing later reveals evidence of tampering), the court deems the exhibit as having been authenticated and its admissibility at trial will depend on either the parties’ stipulation of admissibility or on plaintiffs’ showing under the relevant exceptions to the hearsay rules in Rules 801-803. [Filed Dec. 14, 2012.]
 
IMMIGRATION
51-7-8456 Shah v. Thompson, U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Defendant U.S. Citizenship and Immigration Services (USCIS) maintains that plaintiff Sonal Shah lied in her naturalization interview; Shah maintains that she did not. With this motion, Shah asks the court to enter summary judgment declaring her entitlement to naturalization. In her interview, Shah was asked whether she had left the United States between June 30, 1995, and May 24, 2002. She answered, “No.” Later, she conceded living in Canada in 2000. First, USCIS concluded that Shah never should have been admitted to permanent residency. Second, it concluded that Shah lacked the “good moral character” required for naturalization. USCIS made this latter determination based on what it describes as lies Shah told in order to secure permanent residency, and also on lies Shah told in her naturalization interview. Because there is a genuine issue of material fact regarding whether Shah lied during her naturalization interview, the court will deny her motion. [Filed Dec. 10, 2012.]
 
51-7-8513 Bryjak v. Napolitano, U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiff filed this petition against defendants Janet Napolitano, secretary of the Department of Homeland Security (DHS), and Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services (USCIS), seeking review of the denial of his naturalization application. Plaintiff does not dispute that he made an oral statement under oath in his immigration interview that he had only been arrested once when actually he had been arrested twice for minor offenses. The court finds that the evidence fails to support plaintiff’s assertion that he forgot about the second arrest. The court finds plaintiff made that statement “with the subjective intent of obtaining immigration benefits.” The court upholds the decision of the USCIS. Defendants’ motion for summary judgment is granted. Plaintiff’s cross-motion for summary judgment is denied. [Filed Dec. 14, 2012.]
 
INTELLECTUAL PROPERTY
53-7-8483 Demodulation Inc. v. Applied DNA Sciences Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (16 pp.) Plaintiff, a technology startup company, filed this action against Applied DNA, a competing technology startup company, Alfred University, Corning Inc. and Alfred Technology Resources Inc., asserting 17 claims related to its patents concerning amorphous glass-coated metal microwire. The court grants defendants’ motions to dismiss the § 1983 claim against ATRI and the unjust-enrichment claim against the university with prejudice; their motion to dismiss the state RICO claims against all defendants; the antitrust claim against all defendants; the piercing the corporate veil claims against the university and Corning; the breach-of-contract claims against ATRI; the trade libel claim against Corning; the claim of misappropriation of trade secrets against Applied DNA; the N.Y. General Business Law claims against ATRI; the fraud claims against university, Corning and ATRI; and unjust enrichment against the university without prejudice. The claims of breach of contract, misappropriation of trade secrets, and unfair competition against Corning, the University and ATRI and the claim of patent infringement against Applied DNA are permitted to proceed. [Filed Dec. 12, 2012.]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-8484 AstraZeneca AB v. Hanmi USA Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (15 pp.) Plaintiffs (collectively, AstraZeneca) bring this patent infringement against defendants (collectively, Hanmi) alleging that Hanmi infringed two of AstraZeneca’s patents by filing with the U.S. Food and Drug Administration (FDA) a new drug application seeking approval to market their esomeprazole strontium products prior to the expiration of certain patents held by AstraZeneca. The patents-in-suit cover pharmaceutical compositions containing alkaline salts of esomeprazole and methods of the use of such compositions to treat gastric acid-related diseases. The parties have requested that the court construe certain disputed terms in each of the patents-in-suit. The court held a claim construction hearing on the relevant issues, and here addresses the proper construction of the disputed terms. [Filed Dec. 10, 2012.]
 
LABOR AND EMPLOYMENT
25-7-8485 Yahaya v. Maxim Health Care Services Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (37 pp.) Plaintiff, who was born in Ghana, claims that defendant removed him from the work schedule and subsequently terminated him from his position as a home health aide because of his race and national origin, in violation of the New Jersey Law Against Discrimination. He also claims that defendant failed to timely notify him of his rights to extend health-care coverage under COBRA when he was terminated, in violation of the Consolidated Omnibus Budget Reconciliation Act. The court grants defendant’s motion for summary judgment, finding that plaintiff has failed to adduce evidence from which a reasonable jury could find in his favor under the NJLAD; he was not entitled to notice of health-care coverage under COBRA because he was not a covered employee at the time of his termination; and he did not oppose summary judgment as to the claims against the fictitious John Doe defendants and he failed to name these fictitious parties despite the completion of discovery. [Filed Dec. 12, 2012.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
33-7-8457 Graves v. Ancora Psychiatric Hospital, U.S. Dist. Ct. (Kugler, U.S.D.J.) (12 pp.) Pro se plaintiff, a black female, filed this action alleging violations of the equal employment provisions of Title VII of the Civil Rights Act of 1964 when, after successfully completing her probationary period as a nursing services clerk at defendant, she was not permitted to sit for the civil service exam and was terminated despite the fact that white and male employees were not subjected to the same treatment, and she then was hired back but had to serve another probationary period and was terminated before its completion without the requisite notice or regard for her potential civil service seniority. Defendant’s motion to dismiss plaintiff’s claim of race discrimination is denied because her claim meets the plausibility requirements of Rule 12(b)(6) and because the court cannot presently conclusively determine that the claim is time-barred. The motion is granted with respect to the age discrimination claim because plaintiff does not allege any facts regarding discrimination on the basis of age, the claim of hostile work environment because her broad and unspecific allegations fail to satisfy the pleading requirements of such a claim, the claim of disparate impact because while she mentions incidents, she fails to mention specific policies that resulted in discrimination against members of a protected class. Defendant’s motion to dismiss the claims of discrimination based on age, national origin and religion is granted because plaintiff failed to exhaust her administrative remedies. [Filed Dec. 11, 2012.]
 
25-7-8498 DeMaio v. Right Management Inc., U.S. Dist. Ct. (Thompson, U.S.D.J.) (16 pp.) Plaintiff Raymond DeMaio alleges that defendant Right Management Inc.’s termination of his employment was based on age discrimination in violation of the New Jersey Law Against Discrimination. Defendant filed a motion for summary judgment. The issue is whether a reasonable fact finder could conclude that the reason given by Right Management for DeMaio’s termination, his deficiencies in talent management, was not the actual motivation. DeMaio attempts to demonstrate inconsistencies in Right Management’s proffered reason. He argues that Right Management evaluated general managers based on the totality of their performance, not talent management performance alone, and his overall performance was outstanding. DeMaio argues that Right Management’s assertion that it fired him for his performance in talent management is not supported by the facts. Finally, DeMaio argues that Right Management was inconsistent in its internal documents as to why it terminated him, suggesting it attempted to cover-up its discriminatory motive. The court finds DeMaio failed to prove that Right Management’s reason for firing him was a pretext for discrimination, and Right Management is entitled to summary judgment. [Filed Dec. 14, 2012.]
 
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-8499 Montvale Surgical Center v. Horizon Blue Cross Blue Shield of New Jersey Inc., U.S. Dist. Ct. (Debevoise, U.S.D.J.) (11 pp.) This action arises out of defendant District Council Ironworkers Funds of New Jersey’s willingness to pay only a fraction of the amount claimed by plaintiff for medical care. The fund is a benefit plan that is administered in accordance with the Employee Retirement Income Security Act that includes a self-funded health insurance plan that is administered by defendant Horizon. The medical care at issue was rendered to a subscriber to the plan who assigned his rights under the health insurance plan to plaintiff. When it was only reimbursed a very small fracture of the cost of the medical services rendered, plaintiff filed this action in state court asserting claims for, inter alia, breach of contract, promissory estoppel and unjust enrichment. The court finds that plaintiff’s claims are pre-empted by ERISA and that the complaint should be dismissed with prejudice because Montvale failed to exhaust the mandatory administrative appeals process under the summary plan description when it failed to appeal Horizon’s denial to the fund’s board of trustees before filing suit for benefits. [Filed Dec. 14, 2012.]
 
LABOR AND EMPLOYMENT — TERMINATION
25-7-8470 Stone v. Winter Enterprises, P.C., U.S. Dist. Ct. (Kugler, U.S.D.J.) (13 pp.) Plaintiff Jane Stone brought suit against an array of business entities and individuals for alleged violations of the Family and Medical Leave Act (FMLA), and the New Jersey Family Leave Act (NJFLA). Defendants operate five dental offices in New Jersey called “Signature Smiles,” employing more than 50 people. Defendants Winter Enterprises, Superior Smiles, and Scott Brooks are the business entities used to operate Signature Smiles. These entities are owned and managed by defendants Scott Bruggeworth and Annika Bruggeworth. Plaintiff alleges that defendants’ decision to terminate her employment was motivated by her request for family leave. Defendants filed a motion to dismiss plaintiff’s complaint for failure to state a claim. The court grants the motion in part and denies it in part. Plaintiff’s FMLA claim will survive against the business entity defendants, as well as against defendant Annika Bruggeworth in her individual capacity. Plaintiff’s NJFLA claim will be dismissed without prejudice as against all defendants. Finally, all of plaintiff’s claims will be dismissed against defendant Richard Bruggeworth, both in his individual capacity and as owner and operator of the business entity defendants. [Filed Dec. 11, 2012.]
 
LABOR AND EMPLOYMENT — WAGES AND BENEFITS
25-7-8500 In re Morgan Stanley Smith Barney Wage and Hour Litigation, U.S. Dist. Ct. (Martini, U.S.D.J.) (8 pp.) In this multidistrict wage-and-hour case, plaintiffs, who worked for defendant as financial advisers and were paid on commission, allege that defendant failed to pay overtime in violation of state and federal law and impermissibly deducted money from their paychecks in violation of state law. Defendant moves to dismiss the overtime claim sounding in Rhode Island law, all of the impermissible deduction claims, and the claim for failure to maintain records. The Rhode Island overtime claim is dismissed because the Rhode Island minimum wage law did not contain a private right of action at the time these suits were filed. As to the claims of impermissible wage deduction, the claim under New York law is dismissed because, to the extent it alleges impermissible deductions, it is conclusory and to the extent it alleges a failure to reimburse, it does not aver a violation of New York law; the claim under New Jersey law is dismissed because it is conclusory; the claim under Rhode Island law is dismissed based on the absence of a private right of action; and the claim under Connecticut law is dismissed because it is conclusory. The claim for failure to maintain records is dismissed because it is duplicative. The court grants in part and denies in part the motion to strike the class and collective allegations, striking trainees from the putative impermissible deductions classes but finding it premature to strike overtime class allegations. [Filed Dec. 14, 2012.]
 
LEGAL PROFESSION
04-8-8464 Peck v. Donovan, Third Cir. (Rendell, U.S.C.J.) (11 pp.) The parties entered into a retainer agreement under which plaintiff agreed to legally represent defendant and his company in an ongoing federal lawsuit. Under the agreement, defendant had the option to have plaintiff advance the costs and expenses of the litigation with defendant ultimately responsible for repaying all expenditures advanced regardless of the outcome of the litigation. Plaintiff, who during the litigation withdrew as counsel, filed this breach-of-contract action seeking reimbursement of the expenses that he had advanced after the litigation ended in a judgment favorable to defendant and his then-attorney distributed the proceeds but did not disburse funds to plaintiff. Defendant appeals from the district court judgment against him finding that plaintiff’s claim was timely filed. The Third Circuit vacates the judgment and remands, finding that under the retainer agreement, plaintiff’s action accrued not when the notice of satisfaction of judgment was filed, as held by the district court, but almost a year earlier when final judgment was entered and that the discovery rule would not postpone the accrual of the action, but that the matter must be remanded to determine whether plaintiff properly advanced any alternative bases for tolling the limitations period or postponing the accrual date other than the discovery rule and whether any such argument is meritorious. [Filed Dec. 11, 2012.]
 
04-7-8501 Tadros v. Mayor of the City of Union City, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (6 pp.) In this action asserting a breach of fiduciary duty against plaintiffs’ former attorney arising out of her purported forgery of their signatures on the substitution of counsel forms and the detriment they allegedly suffered as a result of her continuing to enter appearances on their behalf after she withdrew from their case, the court grants defendant’s motion for summary judgment, finding that plaintiffs have not and cannot show that defendant committed any intentional misconduct in her role as plaintiffs’ counsel where plaintiffs failed to respond to defendant’s requests for admission seeking the authentication of several of their signatures which failure constitutes an admission under Rule 36(a)(3) that their signatures are authentic, and because plaintiffs have shown no damages proximately caused by defendant’s continued representation or that she committed any intentional misconduct that would rise to the level necessary to constitute a breach of her fiduciary duty. [Filed Dec. 14, 2012.]
 
04-7-8514 Federal Trade Commission v. Circa Direct, L.L.C., U.S. Dist. Ct. (Bumb, U.S.D.J.) (26 pp.) Plaintiff filed a complaint alleging that defendants engaged in certain deceptive practices. The FTC agreed to a stipulated final judgment and order with defendants, settling the FTC’s claims without admitting to liability which calls for the turnover of substantially all of defendants’ assets to the FTC but authorizes the release of frozen funds to pay attorney fees contingent on FTC consent or approval of the court. Having exhausted its initial $150,000 retainer with its defense counsel, and because the FTC would not agree to release funds to meet its fees and expenses, defendants move for release of $250,076.50. The court reviews defendants’ claimed rates and hours, decides that although this is not a statutory fee-shifting case, a lodestar-type analysis is appropriate, and authorizes release of an additional $129,095 in fees from the frozen funds and an additional $6,139.47 for expenses. [Filed Dec. 17, 2012.]
 
SECURITIES
50-7-8515 Kasilag v.Hartford Investment Financial Services, U.S. Dist. Ct. (Bumb, U.S.D.J.) (25 pp.) Plaintiffs filed this action on behalf of six mutual funds against the investment adviser to the funds, alleging that it charged excessive investment management fees (count I) and excessive 12b-1 fees (count II) in violation of § 36(b) of the Investment Company Act of 1940. Defendant moves to dismiss. The court holds that while the standard under Jones and Gartenberg is onerous, plaintiffs’ complaint alleges sufficient facts to satisfy their burden at this stage of the proceedings and that construing all of the facts in plaintiffs’ favor, a plausible inference arises that defendant’s management fees are so disproportionately large that they bear no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining. It therefore denies the motion to dismiss count I. The motion is denied as to count II because the fact that defendant charges both front-end sales loads and 12b-1 fees with respect to Class A shares does not render the later excessive or differ from the statements defendant filed with the SEC and the remainder of plaintiffs’ allegations in this count are sparse and conclusory. [Filed Dec. 17, 2012.]
 
TORTS — MEDICAL MALPRACTICE
36-7-8471 Mathis v. Pomerantz, U.S. Dist. Ct. (Hillman, U.S.D.J.) (9 pp.) Defendant, Dr. Pomerantz, moves for summary judgment on plaintiff’s medical malpractice claims against him, arising from treatment provided when plaintiff was a prisoner at the Camden County Correctional Facility (CCCF). Plaintiff filed this action pro se, claiming that defendant committed medical negligence and was deliberately indifferent to his medical needs. Defendant’s motion for summary judgment is based on plaintiff’s failure to provide an Affidavit of Merit. The court rejects plaintiff’s argument that he need not provide an Affidavit of Merit under the common-knowledge exception. The court finds a jury could not reasonably conclude, based on defendant’s actions alone, that he was negligent in taking plaintiff off his blood thinning medication. [Filed Dec. 10, 2012.]
 

 

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