Jan. 3 to 9, 2013

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW
01-3-8644 Younger v. Jersey City Housing Authority, Law Div. – Hunterdon Co. (Sarkisian, J.S.C.) (14 pp.) This case arises out of the termination of plaintiff’s Section 8 voucher by defendant Jersey City Housing Authority (JCHA). Plaintiff brought this action in lieu of prerogative writ to challenge the administrative procedure and hearing by which she was dismissed from the program. Plaintiff argues that defendant both failed to comply with the applicable regulations and that defendant’s actions violated her due process rights under the federal and state constitutions. The appellate panel finds JCHA’s notice advising plaintiff that she violated her lease was insufficient and left her unable to adequately prepare a defense. Further, the sole evidence used against plaintiff in the termination proceeding was a series of letters sent by plaintiff’s landlord to JCHA. There is no evidence in the record that the landlord’s letters were substantiated by any form of competent evidence. The case is remanded to the JCHA for an administrative hearing. [Decided Jan. 7, 2013.]
 
01-2-8655 Polish People’s Home Inc. v. Municipal Board of Alcoholic Beverage Control of the City of Passaic, App. Div. (per curiam) (7 pp.) Polish People’s Home Inc. (PPH) appeals from a final determination of the director of the Division of Alcoholic Beverage Control, in the Department of Law and Public Safety, suspending PPH’s plenary retail consumption license for 60 days based on PPH’s second violation of the nuisance regulation in N.J.A.C. 13:2-23.6(b). The appellate panel finds there is sufficient credible evidence in the record to support the director’s finding that PPH did not operate its business in an orderly manner, and the conduct complained of constitutes a nuisance under N.J.A.C. 13:2-23.6(b) for which PPH is responsible. The incident at issue required police intervention and resulted in the filing of criminal charges. The regulation makes clear that a licensee’s responsibility includes its conduct, as well as the conduct of its employees and patrons, “if such conduct is contrary to the public health, safety and welfare.” Therefore, the director did not err by finding that PPH is responsible for the conduct described by the responding police officer. [Decided Jan. 9, 2013.]
 
ALTERNATIVE DISPUTE RESOLUTION
03-2-8645 Morgan Stanley & Co. Inc. v. Druz, App. Div. (per curiam) (23 pp.) After successfully pursuing a claim for damages against his former employer in an arbitration proceeding (Druz I), appellant unsuccessfully pursued claims against his former employer and several of its employees in a second arbitration proceeding (Druz II). He then petitioned the Law Division to vacate the award while contemporaneously filing a third arbitration demand (Druz III) alleging the same conspiracy, but with different co-conspirators, and claiming that the Druz II award had been procured by fraud. Respondents in that proceeding filed a separate action in the Law Division seeking a declaration that Druz III presents a nonarbitrable dispute and an injunction that would preclude Druz from pursuing Druz III or filing any further proceedings relating to Druz II. Druz appeals the denial of his application to vacate the award in Druz II and the confirmation of the award and the determination that Druz III presented a nonarbitrable dispute and the order enjoining him from pursuing Druz II or filing any further proceedings essentially to appeal the award in Druz II. The panel affirms, essentially for the reasons expressed below. It adds that the court did not abuse its discretion in denying appellant a copy of the unofficial transcript paid for by respondents as it was privileged work product and appellant failed to show that he was unable, without undue hardship, to obtain the substantial equivalent of the materials by another means; the panel did not refuse to consider evidence material to the controversy so as to substantially prejudice appellant’s rights, nor did it ignore evidence of the fraud appellant asserted in Druz II; nor did the court err in concluding that the dispute in Druz III was not arbitrable as a challenge to a former final arbitration award on grounds of fraud. [Decided Jan. 8, 2013.]
 
CIVIL RIGHTS
46-2-8617 Locassio v. City Coffee Inc., App. Div. (per curiam) (7 pp.) Defendant Ronald Ford appeals from the order enforcing settlement of the complaint filed by the New Jersey Division on Civil Rights (DCR), alleging he, as sole owner and manager of a coffee shop, and the operating corporate entity, defendant City Coffee Inc., engaged in a pattern and practice of subjecting female employees to sexual harassment. Ford contends there was not a meeting of the minds and he never signed a final consent judgment. He also asserts error by the trial court in denying a stay to him and declining to place the retrial on the inactive list based on his military duties. Rejecting these arguments, the appellate panel affirms. It is immaterial that Ford did not sign the consent judgment; he is bound as a matter of law by its terms as modified by the order. Ford’s military status had no impact on settlement of the DCR’s discrimination complaint against him and his corporation. The panel remands solely for the court to clarify the time period for suspension and vacation of the $60,000 balance of the settlement amount and to amend the order to clarify that a reference to civil penalties in the consent judgment has been stricken. [Decided Jan. 4, 2013.]
 
CONSUMER PROTECTION
09-2-8603 Wiater Building and Design Inc. v. Gutierrez, App. Div. (per curiam) (20 pp.) Defendants appeal from a summary judgment order dismissing their complaint against third-party defendants, the principals of Wiater Building and Design Inc., alleging breach of the Consumer Fraud Act (CFA), in connection with a home-improvement contract entered into with the corporation. Defendants argue the principals are personally liable for damages, the facts of the case justify piercing the corporate veil, and disputed material factual issues precluded summary judgment. The appellate panel finds summary judgment was properly entered in favor of the principals. Pursuant to the parol-evidence rule, the introduction of any representations made by the principals prior to the formation of the contract is forbidden. Moreover, it is not unlawful to use a personal relationship to procure a contract, which is what defendants asserted happened. The record demonstrates defendants failed to produce sufficient credible evidence that the principals personally committed any affirmative acts or knowing omissions warranting liability under the CFA. Defendants presented no evidence that the principals committed a tort or directed a tortious act to be done to justify piercing of the corporate veil. [Decided Jan. 3, 2013.]
 
CONTRACTS
11-2-8618 Salvaterra Trucking, L.L.C. v. LJS Construction, L.L.C., App. Div. (per curiam) (6 pp.) Third-party defendant Brockwell & Carrington Contractors Inc. appeals from the order granting summary judgment to third-party plaintiff LJS Construction on its claim for payment for trucking services. Brockwell served as general contractor for a construction project and subcontracted with Caro Corporation to perform excavation and soil removal work. Caro subcontracted with Salvaterra Trucking to provide the trucks and transport the soil. Although Salvaterra provided trucks to LJS and performed the required work, it stopped providing trucks to Caro and apparently supplied LJS with the same trucks it had been using to perform its subcontract with Caro. As a consequence, Brockwell did not obtain the increase in the number of trucks available for use on the project. The appellate panel finds Brockwell has not demonstrated that LJS was complicit in Caro’s apparent breach of its obligation to provide the initial trucks that LJS was to supplement, which in turn resulted from Salvaterra’s apparent decision to supply the trucks on site to LJS rather than to Caro. LJS provided trucks and LJS was not legally responsible for the fact that they were not “additional” trucks because Caro defaulted on its separate obligation to provide trucks. The appellate panel affirms the order. [Decided Jan. 4, 2013.]
 
CRIMINAL LAW
14-2-8621 State v. Parson, App. Div. (per curiam) (4 pp.) Defendant, who pleaded guilty to burglary arising out of an indictment and to theft by unlawful taking arising out of an accusation, appeals from the two consecutive sentences of four years’ incarceration each with an 18-month period of parole ineligibility imposed following his plea of guilty to violation of probation for the two unrelated criminal matters. The panel remands for resentencing because the sentencing judge did not comply with the requirements of State v. Miller and State v. Yarbough to clearly state his reasons for imposing consecutive sentences after an analysis of the Yarbough factors and failed to identify the circumstances that would make this one of the rare cases in which it is appropriate to impose a period of parole ineligibility on a violation of probation. [Decided Jan. 4, 2013.]
 
14-2-8651 Terry v. New Jersey Department of Corrections, App. Div. (per curiam) (8 pp.) Robert Terry, an inmate, appeals from an adjudication of disciplinary infractions for acts prohibited by N.J.A.C. 10A:4-4.1(a) — .052, making sexual proposals or threats to another, and *.306, conduct that disrupts or interferes with the security or orderly running of the correctional facility. The .052 charge was based on a report filed by a corrections officer. Terry identified one witness, an inmate who stated that the allegation was false, the conversation was appropriate and no sexual proposals were mentioned. The hearing officer made no finding on the credibility of either inmate. Instead, the hearing officer resolved the credibility dispute solely on the assumption that corrections officers have no reason to fabricate allegations against inmates. The appellate panel reverses the decision upholding discipline based on the charge that Terry committed prohibited act .052 based on the inadequacy of the evidence. The panel also reverses the hearing officer’s decision to convert the *.306 charge to an on-the-spot correction. Neither the hearing officer nor the assistant superintendent identified facts supporting a finding that Terry said or did anything that posed a threat to security or the orderly running of the facility. [Decided Jan. 8, 2013.]
 
14-2-8662 State v. Brindis, App. Div. (per curiam) (16 pp.) On leave granted, the state appeals from an order granting defendant’s motion to suppress evidence (a handgun) obtained in a search of a motor vehicle that had been stopped because the occupants were not wearing seat belts. The panel reverses, finding that the court erred in determining that a police officer’s observations of a bullet in an open Crown Royal bag on the floor of the car near the front passenger seat where defendant had been sitting did not provide suspicion of criminal conduct that justified the officers’ request that the car’s owner consent to a search of the car and its contents. Moreover, the officers validly relied on her consent to search the car and the contents of the bag. [Decided Jan. 9, 2013.]
 
14-2-8663 Hersey v. New Jersey Department of Corrections, App. Div. (per curiam) (9 pp.) Inmate Shawn Hersey appeals from a final decision of the New Jersey Department of Corrections rejecting his challenge to a 10 percent surcharge added to the costs of items he purchased from the prison commissary. Hersey contends the surcharge violates his rights under the constitution and laws of New Hampshire, the state in which he was convicted and sentenced. The 10 percent surcharge is required by N.J.S.A. 30:4-15.1. The revenue it generates is slated for the Victims of Crime Compensation Board. Under the same statute, prison commissary sales are exempt from New Jersey sales tax. Pursuant to the Interstate Corrections Compact, the substantive laws of the sending state shall apply to the sentence of a transferred inmate so that his sentence is not increased in length or otherwise made more severe because of the interstate transfer. But the internal regulations and rules of the receiving state shall apply to the transferred inmate “equally” as they apply to all other inmates. Here, the commissary surcharge is not a substantive law that changes the terms of an inmate’s sentence. It applies to Hersey “equally” as to all inmates in New Jersey prisons. The appellate panel finds no constitutional or other prohibition on imposing the statutory surcharge on Hersey’s purchases from the commissary. [Decided Jan. 9, 2013.]
 
FAMILY LAW
20-2-8619 Caruso v. Whitlock, App. Div. (per curiam) (9 pp.) Defendant appeals from the Family Part’s order requiring him to pay 27 percent of the net college expenses of his daughter. The panel remands to the Family Part for further consideration of the Newburgh factors on a fuller record, particularly factors 3, 4, 6, 8, 9 and 11. [Decided Jan. 4, 2013.]
 
20-2-8633 Rivera v. Rivera, App. Div. (per curiam) (16 pp.) Here, where the parties have engaged in substantial postjudgment motion practice, plaintiff has been noncompliant with her support obligations resulting in her equitable distribution monies being held in escrow, defendant has consistently failed to disclose information regarding a Fidelity Investments account thus thwarting its equitable distribution, and emancipation of the parties’ children and payment of their college expenses has been contested, pro se plaintiff appeals from a money judgment entered in her favor and against defendant. The panel concludes that the issues raised by the parties, particularly those pertaining to plaintiff’s pursuit of equitable distribution and defendant’s continued noncompliance with orders to provide plaintiff with the Fidelity account statements, require more than the cursory attention given by the motion judge, who did not render appropriate findings of fact and conclusions of law. The panel therefore remands the matter for the necessary findings of fact and conclusions of law with respect to the motions decided by it. [Decided Jan. 7, 2013.]
 
20-2-8646 C.D. v. N.D.M., App. Div. (per curiam) (17 pp.) This matter involves a child-custody dispute between the biological mother, defendant N.D.M. (mother), and her family members, plaintiffs C.D. (aunt), A.P. (grandmother) and D.D. (grandfather) in which plaintiffs appeal from several orders, including one that orders returning the child, Alice, to her mother, from whom she was temporarily removed almost two years earlier. The panel rejects plaintiffs’ claim that the aunt is Alice’s psychological parent and concludes that the judge correctly determined that the mother’s constitutional right to parent Alice demanded a return to her of custody without further delay and without a fact-finding hearing, an updated evaluation, or a best-interests legal analysis. The panel also affirms the judge’s financial decisions, finding that he did not abuse his discretion in denying plaintiffs’ request for child support from the mother given his determination that plaintiffs’ intentionally delayed Alice’s return to her mother, or in awarding counsel fees to the mother given plaintiffs’ superior financial resources and his finding that plaintiffs were intentionally thwarting Alice’s return. [Decided Jan. 8, 2013.]
 
20-2-8647 K.R. v. R.E., App. Div. (per curiam) (9 pp.) This case involves plaintiff’s unchallenged appeal of the denial of a final restraining order (FRO) that she sought against her husband, defendant, under the Prevention of Domestic Violence Act of l991. Plaintiff challenges the court’s failure to give appropriate weight to the extensive history of prior acts of domestic violence, and argues the record supports a finding in her favor. The appellate panel finds that the court’s failure to accord appropriate weight to defendant’s past abusive acts in assessing his present conduct was clear error and the record clearly supports plaintiff’s need for protection. The panel reverses and remands for entry of an FRO. [Decided Jan. 8, 2013.]
 
20-2-8656 Green v. Greenberg, App. Div. (per curiam) (19 pp.) These consolidated appeals challenge various orders of the Family Part regarding alimony and child support. Finding that the judge misinterpreted the plain language of the parties’ property-settlement agreement and erred in setting defendant’s support obligations and fixing arrears at amounts inconsistent with evidence in the record and without a plenary hearing, where defendant presented evidence of a significant decrease in his business holdings with resultant loss of income, and that the judge failed to make adequate findings of fact and conclusions of law, the panel reverses the orders requiring defendant to continue to pay plaintiff $20,000 per month in alimony and child support after Nov. 1, 2008, and setting arrears based on that figure and remands for further proceedings. The panel affirms in the third appeal, finding that the court did not abuse its discretion in imputing income of $50,000 to plaintiff, nor did it err in rejecting plaintiff’s claims that defendant “dismantled” his business interests and declared bankruptcy to rid himself of his alimony obligation or in modifying defendant’s alimony and child-support obligations after appropriate consideration of the factors in N.J.S.A. 2A:34-23(b). [Decided Jan. 9, 2013.]
 
20-2-8657 R.C. v. P.J.C., App. Div. (per curiam) (17 pp.) In this postjudgment matrimonial action, defendant appeals from a November 2011 order on certain postjudgment motions filed by the parties and a February 2012 order denying his motion for reconsideration of the earlier order. The panel affirms in part and reverses in part and remands for further proceedings. The panel finds that, inter alia, the trial court did not err by making its decisions without affording the parties an opportunity for oral argument; the record supports the decision requiring defendant to pay his share of one child’s attendance at the preschool; requiring defendant to pay his share of the children’s extracurricular activities was not error in light of the parties’ PSA, notwithstanding that he was not consulted about the cost since the activities were of the sort mentioned in the PSA and any decision to withhold his consent would be unreasonable; the court erred by requiring defendant to undergo a psychological evaluation without first affording him an opportunity to address his son’s statements during an interview with the judge since the court credited some of those statements in ordering the evaluation and failed to explain why the statements warranted the evaluation; the trial court erred by failing to address that plaintiff had violated the PSA by permitting her “significant other” to stay overnight at her home within the first six months of the parties’ divorce; and the court must reconsider its award of attorney fees to plaintiff so that any award reflects the extent to which plaintiff prevailed initially and in the remand proceedings and whether the award should be limited by the PSA. [Decided Jan. 9, 2013.]
 
INSURANCE LAW
23-3-8658 212 Marin Boulevard, L.L.C. v. Chicago Title Ins. Co., Law Div. — Hudson Co. (Sarkisian, J.S.C.) (25 pp.) This title insurance coverage dispute arising from defendant’s sale of eight standard form title insurance policies to plaintiffs covering eight properties in Jersey City. The court has already found that defendant had a duty to defend plaintiffs in three actions challenging ownership. Plaintiffs move for attorney fees, costs and expenses of $1,754,521.67 in connection with those three actions. Defendant has cross-moved for discovery to ascertain the need, reasonableness and propriety of the fees, costs and expenses. The court finds that, inter alia, the issue identification that may have changed during the litigation by plaintiffs’ counsel does not undermine the application for fees and is not a basis to further reduce plaintiffs’ lodestar; the court does not need the assistance of an expert to determine a fee under the principles in RPC 1.5 and Rendine; fees for work performed by plaintiffs’ attorneys before plaintiffs tendered the defense to defendant are not recoverable under the policies; work identified by defendant’s expert as outside the scope of actions covered by the court’s prior order are, in fact, are reasonably related to covered actions; fees for reviewing and revising are recoverable; the entries identified in defendant’s expert report as block billing, vague billing, clerical and administrative entries, task inappropriate entries and multiple attendance entries are recoverable. Plaintiffs are awarded $1,655,691.57. [Filed Jan. 8, 2013.]
 
LABOR AND EMPLOYMENT
25-2-8604 Peralta v. Joule Staffing Services Inc., App. Div. (per curiam) (22 pp.) In these actions arising out of events following a workplace accident, plaintiff, a Peruvian native who speaks only Spanish, who was employed as a forklift operator by Joule, a staffing agency, appeals from the trial court’s grant of summary judgment to Joule on his claims for retaliatory termination in violation of the Workers’ Compensation Act and disability discrimination in violation of the Law Against Discrimination and its dismissal of his claim of intentional interference with his economic relationship against CDS, where he had been placed by Joule and where the accident occurred. Applying the McDonnell Douglas burden-shifting framework, the panel finds that Joule presented a legitimate and nonrebutted business justification for not offering additional work assignments to plaintiff after his accident at CDS and his application for workers’ compensation (economic downturn) and plaintiff has not presented any legally competent evidence that this justification was a pretext for retaliatory and discriminatory treatment. The panel therefore affirms the trial court’s grant of summary judgment to Joule. The panel also affirms the dismissal of the claim against CDS, finding that plaintiff has not offered sufficient legally competent proof that CDS caused him to stop getting work assignments from Joule at other job sites or that it intentionally or maliciously acted with the purpose of rendering him unemployable. [Decided Jan. 3, 2013.]
 
25-3-8634 Tan v. Pereira, Law Div. — Hudson Co. (Sarkisian, J.S.C.) (12 pp.) Pro se plaintiff filed this action alleging defamation, slander, professional negligence, legal malpractice, negligence, and disparate treatment/discrimination against the county, the attorney who represented the county in the proceedings that resulted in plaintiff’s removal from his position as sheriff’s officer and various county employees who testified in or played a part in the administrative dismissal proceedings. The court grants defendants’ motions to dismiss, finding that (1) the claims for defamation, slander and professional negligence against the attorney and the county defendants fail because they arise out of statements made during litigation that are protected by the litigation privilege; (2) the legal-malpractice claim fails because the attorney owed no duty to plaintiff, a nonclient, where there are no facts suggesting that he expected plaintiff to rely on his conduct or that plaintiff actually did rely on his conduct; (3) the court does not have jurisdiction over plaintiff’s claims that are, in effect, an appeal of the decision of the ALJ and the Civil Service Commission; and (4) plaintiff’s claim under the Law Against Discrimination fails because plaintiff failed to make a prima facie showing that he had been performing his job prior to his termination and because the claim is barred under the doctrine of collateral estoppel. [Decided Jan. 4, 2013.]
 
25-2-8659 Truong, L.L.C. d/b/a V.I.P. Nails and V.I.P. Nails Too v. Tran, App. Div. (per curiam) (27 pp.) Defendants Anna Tran and Anthony Le appeal from a preliminary injunction enforcing a restrictive covenant that barred them from competing with their former employer, Truong, L.L.C., (plaintiff), which operated two nail salons. The Appellate Division stayed the injunction pending appeal and now reverses, finding that plaintiff made an insufficient showing of irreparable harm, and of likelihood of prevailing on the merits on the issue of temporal scope. [Decided Jan. 9, 2013.]
 
LABOR AND EMPLOYMENT — JURISDICTION
25-2-8648 Softpath Systems Inc. v. Business Intelligence Solutions Inc., App. Div. (per curiam) (12 pp.) Softpath Systems Inc. appeals from the summary judgment dismissal of its fee collection action against Business Intelligence Solutions Inc. (BIS) based on Softpath’s failure to comply with the registration requirements of the Private Employment Agency Act. BIS appeals from that portion of the final judgment dismissing Softpath’s action without prejudice to refiling its complaint in New York. The parties executed a “master services agreement” (MSA) in New York City and Softpath sent its employees to New Jersey to work for BIS. The relevant provision states that “[t]his MSA shall be governed by and construed in accordance with the laws of the State of New York, U.S.A.” This language addresses which state’s laws shall apply to issues concerning the “interpretation, execution or enforcement” of the contract, and not whether Softpath failed to abide by a threshold statutory registration requirement. That question does not require an interpretation of the terms but essentially presents a jurisdictional issue that is outside the scope of the MSA’s choice-of-law provision. The appellate panel affirms the dismissal of the action and denies BIS’s cross-appeal, rejecting its argument that the court should have barred Softpath from thereafter suing in New York. [Decided Jan. 8, 2013.]
 
LAND USE AND PLANNING
26-2-8635 Rosenblum v. Zoning Board of Adjustment of the Borough of Closter, App. Div. (per curiam) (12 pp.) Plaintiff Jesse Rosenblum appeals pro se from a judgment affirming a decision by defendant Zoning Board of Adjustment of the Borough of Closter. The board granted several variances to defendant James Crimmins, including a use variance to store commercial vehicles and material for his landscape and construction business on an undersized lot in a residential zone. The appellate panel reverses, finding the board’s decision cannot be sustained because Crimmins failed to satisfy the affirmative and negative criteria embodied in N.J.S.A. 40:55D-70(d). [Decided Jan. 7, 2013.]
 
PUBLIC RECORDS
52-3-8660 Cross v. Wall Twp., Law Div. — Monmouth Co. (Lawson, A.J.S.C.) (18 pp.) Pursuant to the Open Public Records Act, plaintiff filed this action, in which she moves for partial summary judgment, seeking numerous documents regarding the use by the township, which is self-insured for all medical, prescription and dental claims under $75,000, of third-party administrators to determine claim eligibility, process claims, and disburse payments. The court grants plaintiff’s motion, ordering the township to provide copies of, inter alia, aggregate loss fund reports, as they are not exempt risk management documents and are summaries of payments made that do not contain information regarding individual employees that would rise to the level of privacy invasion; quotes/proposals received by Wall from its brokers for coverage of employees because they are not risk-management documents; underwriting packages used to quote Wall’s stop-loss programs for 2002 to 2011 and the insurer’s binder, bid and monthly bills for each year, as Wall previously supplied plaintiff with stop-loss binders for other years and has waived any objections; RFPs from potential brokers, despite their containing confidentiality agreements because Wall waived any interest in confidentiality by providing RFPs in response to other OPRA requests; and bank statements and check registers associated with payments from Wall to its TPA for employee coverage because Wall has not shown how or why they function under the risk-management exemption of OPRA. [Decided Jan. 3, 2013.]
 
REAL ESTATE
34-2-8661 Zaman v. Felton, App. Div. (per curiam) (11 pp.) The parties’ disputes about defendant Barbara Felton’s transfer of real property to plaintiff Tahir Zaman were resolved in two phases — a jury trial of some and a bench trial of the remaining issues. Here, the appellate panel rejects Felton’s arguments regarding the sufficiency of the jury instructions during the first phase, as well as her arguments regarding the judge’s disposition of the second phase’s nonjury issues. Although the parties’ intentions in entering into the contract may have been fairly debatable, that their discussions led to the formation of a written agreement is beyond question. Thus, the question of whether Felton believed that Zaman was merely loaning her money was properly governed by the preponderance standard of proof. The judge correctly instructed the jury about the burden of persuasion and all other legal principles applicable to the questions posed. With the jury’s unimpeachable determination that the parties intended to enter into a contract of sale and that Zaman did not commit fraud in the inducement of the contract, Felton’s arguments that the judge erred in failing to find during the bench trial phase that the transaction created an equitable mortgage or that Felton had a valid claim of consumer fraud fail. To the extent those claims might have arguably survived the jury’s verdict, the judge’s findings are based on substantial credible evidence. [Decided Jan. 9, 2013.]
 
TAXATION
35-5-8605 685, L.L.C. v. Paramus, Tax Ct. (Nugent, J.T.C.) (7 pp.) Plaintiff filed a complaint with the Tax Court regarding the 2012 assessment for property on Route 17 in Paramus. Defendant filed a motion to dismiss the appeal for failure to respond to the assessor’s Chapter 91 request for financial information pursuant to N.J.S.A. 54:4-34. The request had been sent by the assessor to the taxpayer at the address on file in the assessor’s office, simultaneously via certified mail and regular mail. The certified mail was returned to the assessor marked “return to sender, attempted — not known, unable to forward” on the envelope. Plaintiff contends that the request mailed by regular mail was never received. The court finds that the taxpayer did not receive adequate notice of the assessor’s request since, under the facts presented, it is not clear whether the request was properly addressed. The court therefore denies defendant’s motion. [Decided Dec. 19, 2012.]
 
35-5-8606 Repetti v. Director, Division of Taxation, Tax Ct. (Menyuk, J.T.C.) (4 pp.) Plaintiff contests the denial of her application for a homestead rebate in 2007 for property located in Woodbridge Township, contending that she is the sole resident of the house, which is titled in the names of her four sons, and that she paid the taxes and the upkeep of the house and that she is a life tenant. Construing the term “tenant for life” to mean the beneficiary of a conventional life estate who is entitled to the income from property for life, excluding persons with merely personal rights to occupy a residence for life, the Tax Court affirms the denial of the rebate after finding that plaintiff does not have the required ownership interest in the property. [Decided Dec. 28, 2012.]
 
35-5-8620 Waterside Villas Holdings, L.L.C. v. Monroe Twp., Tax Ct. (Menyuk, J.T.C.) (9 pp.) This action is an appeal of assessment for tax year 2011 on property located in Monroe Township. The subject property is a 100-unit apartment building on which construction was completed in 2009. Following the filing of the complaint, the defendant township moved for dismissal on the ground that plaintiff had failed to provide income and expense information as required by N.J.S.A. 54:4-34 (Chapter 91). The court granted the motion, subject to the plaintiff’s right to a “reasonableness” hearing, which the plaintiff subsequently requested. Following that hearing, the court found that plaintiff has failed to establish either that the data on which the assessor relied or his methodology were unreasonable within the meaning of Chapter 91. The court concludes that the complaint must be dismissed with prejudice. [Decided Dec. 28, 2012.]
 
TORTS
36-2-8649 Dabney v. Total Relocation Services, App. Div. (per curiam) (17 pp.) Pro se plaintiff appeals from the dismissal of his defamation cause of action on the ground that the Fair Credit Reporting Act entirely pre-empts his intentional-tort action. The panel affirms, finding that because plaintiff’s defamation claim is based on alleged injury arising purely from the reporting of credit information by a furnisher of credit, it is pre-empted by the FCRA. [Decided Jan. 8, 2013.]
 
36-2-8650 Gourley v.Monroe Twp., App. Div. (per curiam) (16 pp.) In this action arising out of the repeated flooding of plaintiffs’ low-lying property by storm water runoff from the street, plaintiffs appeal from orders denying their request for a preliminary injunction, granting the township’s cross-motion for summary judgment dismissing all counts except that alleging inverse condemnation, and dismissing the claim of inverse condemnation. The panel affirms, concluding that the motion judge did not err when she determined that the flooding on the street did not create a nuisance or a dangerous condition that would abrogate the township’s immunity under the Tort Claims Act since the water accrues naturally on plaintiffs’ property by means of gravity and the township is not affirmatively depositing water on plaintiffs’ property and is not liable for water that naturally flows into the street but does not create a dangerous condition, nor have plaintiffs shown how the township created an unreasonable interference with the use and enjoyment of their land. Further, the property has not been taken by the township for use as a public storm water basin and Monroe did not perform an overt act on plaintiffs’ property that resulted in a physical occupation and its decision to grant building permits to upstream neighbors is immune from liability. [Decided Jan. 8, 2013.]
 
TORTS — MOTOR VEHICLES
36-2-8638 Olsen v. Classic Cruisers Inc., App. Div. (per curiam) (14 pp.) Florence Carlin (decedent) exited defendant Classic Cruisers Inc.’s bus at a midblock stop in front of a shopping center. The stop was approximately 332 feet beyond a lighted intersection where crosswalks were designated. On stopping, decedent walked toward the rear of the bus, passed behind it, then stepped off the sidewalk into the street, where she was struck by the motorist-defendant. Carlin later died from her injuries. Plaintiff, as executrix of Carlin’s estate, filed a complaint against multiple defendants alleging negligence. Here, plaintiff appeals from an order granting summary judgment to defendants, arguing the trial court erred by concluding that its expert provided a net opinion and no genuine issues of material fact exist. The appellate panel reverses and directs the judge to conduct an N.J.R.E. 104(a) hearing to establish the admissibility of the expert’s opinion, purportedly supported by industry guidelines, that Classic’s midblock stop induced decedent to cross the street. In so doing, the judge will determine if the expert rendered a net opinion. Because the parties dispute whether Classic negligently chose the midblock stop location in a dangerous area with knowledge of the risks that it posed, the panel reverses the grant of summary judgment regardless of the ruling on the admissibility of the expert opinion. [Decided Jan. 7, 2013.]
 
TORTS — PREMISES LIABILITY
36-2-8607 Hillman v. Township of Montclair, App. Div. (per curiam) (15 pp.) Plaintiff tripped and fell on the uneven sidewalk along Oakwood Avenue in Montclair. Photographic evidence depicted an intact concrete sidewalk slab that was elevated approximately three to four inches above an adjacent sidewalk slab. Tree root activity was blamed for causing the sidewalk slab to rise. Hillman sued the adjacent landowners and Montclair. Hillman’s theory of liability against the landowners was their alleged failure to maintain and repair the sidewalk. The township was sued because it planted the tree, which resulted in an alleged dangerous condition of public property. Plaintiff appeals from two summary judgment orders dismissing her claims for personal injuries. The appellate panel affirms the summary judgment dismissal of plaintiff’s complaint against the homeowners. The panel finds summary judgment was improvidently granted to the township and reverses and remands the claims against the township only. On the only issue submitted for summary judgment scrutiny, constructive notice, a rational juror could conclude that the conditions on Oakwood Avenue had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. [Decided Jan. 3, 2013.]
 
FEDERAL COURT CASES
 
BANKRUPTCY
42-6-8622 In the Matter of Lafferty, U.S. Bank. Ct. (Wizmur, U.S.B.J.) (15 pp.) The debtors, Todd and Deneen Lafferty, filed a voluntary petition for relief under Chapter 13. As is relevant here, the debtors listed $136,870.06 in unsecured debt on their Schedule F, including a credit-card debt owed by Deneen to CitiCards/CitiBank. The debtors’ Chapter 13 plan was confirmed, requiring them to make payments of $1,800 a month for 60 months to satisfy attorney fees of $3,104 and a priority tax claim of $1,125, with the remainder to be applied as a pro rata distribution to be shared among all unsecured creditors with allowed claims. Here, the debtors move to expunge the proof of claim filed by a postpetition assignee of the credit-card debt, eCAST Settlement Corporation. The debtors challenge the assignee’s standing to file a proof of claim in place of the original creditor, contending that the documentation provided regarding the assignment is insufficient under the bankruptcy code and the rules of bankruptcy procedure, and that the assignment does not comply with state law noticing requirements. Because the proof of claim, as amended, does provide sufficient evidentiary support for the assignment, and because the assignment is enforceable under state law, the debtors’ motion to expunge eCAST’s proof of claim is denied. [Filed Dec. 19, 2012.]
 
42-6-8639 In re Hussain, U.S. Bank. Ct. (Lyons, U.S.B.J.) (17 pp.) The debtor in this long-running Chapter 7 bankruptcy case seeks an order requiring the trustee to satisfy the balance due on a student loan where, despite the trustee having paid all claims in full plus postpetition interest, including the claims filed by the student loan creditor, there remained a balance due on the student loan. The court denies the debtor’s motion because (1) the court previously granted the trustee’s motion to close this case; (2) the trustee’s accounting and amended accountings were presented to the court on notice to all parties and the debtor did not raise this issue previously despite having filed numerous motions; and (3) the trustee properly paid the claims in full plus interest in the same manner as other general unsecured claims as allowed under the bankruptcy code. Because the debtor has engaged in meritless and vexatious litigation, the trustee’s cross-motion to bar further pleadings by the debtor without prior court approval is granted. [Filed Jan. 4, 2013.]
 
42-7-8640 In re Sea Village Marina, U.S. Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) This is an appeal of a bankruptcy court order allowing certain proofs of claim pursuant to 11 U.S.C. §§ 502(a) and (b). Appellant, Sea Village Marina (SVM), operates a community of floating homes or houseboats in Egg Harbor Township. Conditions at the marina have deteriorated; the residents currently suffer from a lack of potable water, docks in disrepair, and homes that tilt at uneven angles because they rest on mud at low tides. SVM filed for bankruptcy under Chapter 11. The bankruptcy court’s order allows general unsecured claims from certain houseboat owners who lost value in their homes due to degraded conditions at the marina. SVM has appealed the portions of the order that granted general unsecured claims to five different SVM homeowners for loss of value in their homes. The court vacates the bankruptcy court’s order and remands the case with instructions for the bankruptcy court to provide further explanation regarding the cause of action that serves as the basis for relief, the claimants’ showing of causation, and the calculation of damages. [Filed Dec. 20, 2012.]
 
42-6-8641 In re U.S. Eagle Corporation, U.S. Bank. Ct. (Winfield, U.S.B.J.) (23 pp.) U.S. Eagle Corporation is a closely held Delaware corporation with its headquarters in New Jersey. It is owned by members of the Westphal family. In this adversary proceeding, two motions are before the court — a motion to dismiss defendant Scott Westphal’s counterclaim and a motion to dismiss the third-party complaint. U.S. Eagle posits that Delaware law applies rather than the New Jersey statute on which Scott grounds his counterclaim, because the court must first look to the law of the court that granted the transfer of venue, here, the Florida district court. It urges that because the dispute is between the corporation and one of its shareholders, under Florida choice-of-law rules, the Florida court would apply the “internal affairs” doctrine, which holds that the internal affairs of a corporation are governed by the law of the state of incorporation. The court concludes that Florida law requires application of Delaware law. Further, under Delaware law, both the counterclaim and third-party complaint fail to state claims on which relief can be granted. Both motions are granted. [Filed Dec. 20, 2012.]
 
CIVIL PROCEDURE
07-7-8623 Obianyo v. Tennessee, U.S. Dist. Ct. (Hillman, U.S.D.J.) (7 pp.) The court grants pro se plaintiff’s petition to proceed in forma pauperis and then dismisses his complaint, holding that to the extent plaintiff claims that defendants owe him money as a U.S. diplomat and because they stole his personal documents, his claim for breach of contract with the U.S. government in excess of $10,000 is a claim that has exclusive jurisdiction in the U.S. Federal Court of Claims, and that his claims against Tennessee are barred by the doctrine of sovereign immunity. [Filed Dec. 28, 2012.]
 
07-7-8624 Travelers Property Casualty Co. of America v. Hallam Engineering Construction Corp., U.S. Dist. Ct. (Walls, S.U.S.D.J.) (4 pp.) In this subrogation action to recover plaintiff’s payment to its insured, Goya, for damages incurred at Goya’s food-processing facility in a fire allegedly caused by defendant Hallam’s negligent service of refrigerator equipment and defendant Meadowlands’ inadequate design of the fire sprinkler system that resulted in excessive fire spread, defendant Perley-Hallady Associates Inc. moves, pursuant to Rule 41, to dismiss the remaining cross-claim asserted against it by Meadowlands pursuant to New Jersey’s Joint Tortfeasors Contribution Law. Finding that Meadowlands should not be precluded from asserting its claim for contribution against Perley-Halladay merely because Travelers and Hallam withdrew their claims against it, the court denies Perley-Hallady’s motion. [Filed Nov. 5, 2012.]
 
07-7-8625 Travelers Property Casualty Co. of America v. Hallam Engineering Construction Corp., U.S. Dist. Ct. (Walls, S.U.S.D.J.) (8 pp.) In this subrogation action to recover plaintiff’s payment to its insured, Goya, for damages incurred at Goya’s food-processing facility in a fire allegedly caused by defendant Hallam’s negligent service of refrigerator equipment and defendant Meadowlands’ inadequate design of the fire sprinkler system that resulted in excessive fire spread, plaintiff filed a motion for partial summary judgment or motion in limine contesting certain factual assertions in the final pretrial order. The court grants in part and denies in part the motion in limine. Travelers’ motion to strike contested facts 10, 11 and 12 relating to the failure of the expansion valve or joint as a possible cause of the fire is denied because Hallam’s expert’s opinion covered the possible causes of the fire so the expansion joint is related to the topic of the written report and he did observe in his deposition that a possible cause for the pattern of fire damage would have been the failure of the evaporator joint. Travelers’ motion to strike contested fact 14 — Meadowlands’ assertion that Goya and/or Hallam disabled the evaporator safety switch — is denied because there is adequate evidence in the record to support that assertion and it is a contested issue of fact appropriate for the jury to determine. In light of the lack of evidence and high probability of confusion and misleading the jury if arguments are presented that Travelers is seeking damages for a better cooler than the one destroyed by the fire, Travelers’ motion to strike Hallam’s contested fact 7 and Meadowland’s contested fact 5 as to damages is granted. [Filed Nov. 14, 2012.]
 
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-8608 Paulsboro Refining Company v. SMS Rail Service Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) Defendant SMS Rail Service provides railroad services for plaintiff Paulsboro Refining Company on 5.8 miles of railroad track that plaintiff owns. Plaintiff wishes to terminate defendant’s contract, an action that requires approval from the federal Surface Transportation Board (STB) so that defendant can “abandon” the rail line. The present litigation involves a dispute regarding which party is responsible for paying the costs of seeking this approval from the STB. Plaintiff filed a petition with the STB seeking approval to terminate defendant’s service. Plaintiff then filed this contract action in the Superior Court of New Jersey, seeking costs, damages and declaratory relief establishing defendant’s responsibility for the costs of obtaining the STB’s approval. Defendant removed the action. The principal issue to be decided is whether the court has jurisdiction to adjudicate plaintiff’s claim that the defendant-railroad has breached the parties’ rail services agreement. Because this action only involves a contract dispute between nondiverse parties regarding which party must pay the costs of obtaining STB approval, as to which no federal question is presented, the court lacks jurisdiction and will remand to state court. [Filed Dec. 19, 2012.]
 
CIVIL RIGHTS
46-7-8626 Schirmer v. Penkethman, U.S. Dist. Ct. (Bumb, U.S.D.J.) (35 pp.) Plaintiff, an assistant teacher, asserts claims of false arrest and malicious prosecution in violation of 42 U.S.C. § 1983 and the New Jersey Civil Rights Act arising out of his arrest and prosecution on charges of sexual assault and conduct impairing or debauching the morals of a minor that were ultimately dismissed. The court grants defendants’ motion for summary judgment as to the police defendants, finding that police had probable cause for plaintiff’s arrest based on S.S.’s allegations, regardless of whether there were jurisdictional infirmities with respect to the charges based on J.H.’s allegations, that the J.H. charges did not impose significant additional reputational consequences and criminal penalties on plaintiff since they were identical to those based on S.S.’s allegations, and that there was no evidence that any defendant actively misled the prosecutor regarding the J.H. charges. The malicious-prosecution claims against the school defendants fail because they did not initiate the criminal proceeding against plaintiff and, even if they had, there was probable cause for the criminal proceeding, and their conduct was not sufficient to shock the conscience. [Filed Dec. 31, 2012.]
 
CIVIL RIGHTS — LABOR AND EMPLOYMENT
46-7-8642 Mazzoccoli, M.D. v. Merit Mountainside, L.L.C., U.S. Dist. Ct. (Linares, U.S.D.J.) (16 pp.) Plaintiff, who was granted privileges at Mountainside Hospital as an attending physician in the Department of Family Practice, brought this action against defendants Merit Mountainside, L.L.C. d/b/a Mountainside Hospital, Theresa Soroko, M.D., Robert Brenner, M.D., and AHS Hospital Corp./Mountainside Hospital Campus (AHS) alleging violations of his civil rights, the Sherman Act, and New Jersey statutes and common law. Defendants filed a motion to dismiss plaintiff’s second amended complaint, arguing that plaintiff failed to cure fatal defects in the first amended complaint. In merely repeating the claims, plaintiff fails to allege a § 1985(3) claim that is plausible on its face, and the court dismisses plaintiffs § 1985 claim with prejudice. As to the Sherman Act claim, the additional allegations raised in the second amended complaint fail to “raise a reasonable expectation that discovery will reveal evidence of [an] illegal agreement” between any of the defendants. Having found that plaintiff fails to articulate a viable § 1985(3) or Sherman Act claim, the court finds federal subject matter lacking and dismisses the remaining claims without prejudice. [Filed Dec. 20, 2012.]
 
CIVIL RIGHTS — TORTS
46-7-8652 Katzenmoyer v. Camden Police Department, U.S. Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) Plaintiff Ginger Katzenmoyer filed suit on behalf of her deceased son, Brett, against defendants in the law enforcement community of Camden. Brett went to a concert at the Tweeter Center. While in a parking lot, Brett was arrested by defendants, Officers Ronald Lattanzio and John McArdle. Brett allegedly sustained serious injuries in the course of his arrest and detention and died a few days later. Plaintiff alleges that defendants violated Brett’s civil rights under color of state law and are liable to his estate under 42 U.S.C. § 1983. Further, plaintiff seeks recovery under the New Jersey Wrongful Death Act and the New Jersey Survival Act. Defendants Camden and Camden Police Department filed a motion for summary judgment. The court grants defendant’s motion on plaintiff’s federal claim, finding plaintiff failed to offer evidence sufficient to create a genuine issue for trial regarding defendant’s liability to plaintiff under § 1983. However, plaintiff has created a disputed issue of material fact as to defendant’s liability under the New Jersey Wrongful Death and Survival statutes and defendant’s motion as to those claims is denied. [Filed Dec. 21, 2012.]
 
CONTRACTS
11-8-8665 Dandana, L.L.C. v. MBC FZ-L.L.C., Third Cir. (Fuentes, U.S.C.J.) (12 pp.) Dandana, L.L.C., a television network and content distributor, filed a complaint seeking damages for breach of contract, unjust enrichment, and common-law fraud arising out of a television distribution deal with Middle East Broadcasting, a United Arab Emirates company that is a satellite broadcaster. Dandana claims Middle East Broadcasting breached an oral agreement for revenue sharing. Middle East Broadcasting contends there was no oral agreement, and it complied with all obligations under the parties’ fully integrated, written agreement. The district court granted Middle East Broadcasting’s motion for summary judgment and dismissed Dandana’s complaint. The circuit panel affirms that ruling as well as the denial of Dandana’s motion to exclude expert testimony as moot. The panel finds the District Court appropriately determined that no enforceable oral agreement was entered into by the parties. Further, although Middle East Broadcasting did not sign the written agreement, the performance of the parties demonstrates acceptance of the written offer and an enforceable contract. An integration clause stated that the agreement supersedes all prior agreements and sets out all of the terms agreed to by the parties. The parties are bound by the agreement; there is no ground for implying a promise where a valid contract governs the rights of the parties. [Filed Dec. 21, 2012.]
 
CONTRACTS — BREACH
11-7-8627 Pauly v. Houlihan’s Restaurants Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (19 pp.) At an unspecified time and date, plaintiff Ted Pauly visited a Houlihan’s restaurant in Brick. He purchased “several beers ... and several mixed drinks” offered on the menu. The prices for the beverages Pauly ordered and consumed were not listed on the menu. Pauly did not learn of the beverage prices until he received a check for these drinks after he had consumed them. Pauly now claims defendant’s prices exceeded the reasonable prices for such beverages, and that defendant engaged in price discrimination by charging him more than other customers in the restaurant for the same items. Pauly brought this putative class action for unjust enrichment and breach of contract against defendant Houlihan’s Restaurants Inc. Before the court is defendant’s motion to dismiss both counts for failure to state a claim. The court finds plaintiff has sufficiently stated a breach-of-contract claim and an unjust-enrichment claim and denies defendant’s motion to dismiss. [Filed Dec. 20, 2012.]
 
CRIMINAL LAW
14-7-8615 Prall v. Ellis, U.S. Dist. Ct. (Simandle, U.S.D.J.) (22 pp.) In this ongoing litigation regarding plaintiff’s conditions of confinement, the court denies plaintiff’s motion for legal supplies without prejudice, finding that defendants have submitted evidence that plaintiff was provided with legal supplies as requested, which is supported by the barrage of pleadings, motions and other papers submitted to the court by plaintiff. Plaintiff’s attempt to reintroduce claims and parties that were dismissed previously and that were denied reconsideration are denied and plaintiff is warned that future attempts may result in dismissal for vexatious litigation tactics. However, plaintiff is permitted to add new defendants to his claims regarding the conditions of confinement in the Management Control Unit that were permitted to proceed. As to plaintiff’s motion for an injunction, the court directs the remaining New Jersey State Prison defendants and the newly added defendants to respond within 30 days concerning the new allegations of physical and sexual abuse in March 2012 and to show cause why an injunction should not be issued against them in this regard. [Filed Dec. 21, 2012.]
 
14-7-8616 Wilson v. Haas, U.S. Dist. Ct. (Hillman, U.S.D.J.) (30 pp.) In this action regarding plaintiff’s conditions of confinement at South Woods State Prison, the claims for use of excessive force and for denial of medical care will be permitted to proceed against certain defendants. All other claims, including failure to protect, are dismissed. However, because plaintiff maybe able to supplement his pleading with facts sufficient to overcome the deficiencies of his supplemental complaint with respect to the claims dismissed without prejudice, other than those asserted against South Woods State Prison that are entitled to immunity under the Eleventh Amendment, he is given leave to file a third amended complaint within 30 days. [Filed Dec. 28, 2012.]
 
EVIDENCE — EXPERT WITNESSES
19-7-8628 Travelers Property Casualty Co. of America v. Hallam Engineering Construction Corp., U.S. Dist. Ct. (Walls, S.U.S.D.J.) (14 pp.) In this subrogation action to recover plaintiff’s payment to its insured, Goya, for damages incurred at Goya’s food-processing facility in a fire allegedly caused by defendant Hallam’s negligent service of refrigerator equipment and defendant Meadowlands’ inadequate design of the fire sprinkler system that resulted in excessive fire spread, Hallam moves to strike the expert reports and opinion testimony of two of plaintiff’s liability experts, Joseph Leach and Robert DeVillez, and to preclude plaintiff form introducing certain damages-related evidence. The court strikes the expert reports, finding that Leach and DeVillez are qualified to testify as refrigeration specialists but that Leach’s testimony regarding the repairs preceding the fire and observations of the equipment after the fire lacks proper foundation and reliability; although DeVillez’s testimony is reliable, it would not be relevant and helpful to the jury; and that Leach and DeVillez’s testimony regarding general maintenance procedures and practices is inadmissible under Rule of Evidence 403. Hallam’s motion to strike other fire-loss expenses is granted in part and denied in part. [Filed Jan. 2, 2013.]
 
INSURANCE LAW
23-7-8609 Cohen, M.D., F.A.C.S. v. Independence Blue Cross, U.S. Dist. Ct. (Bongiovanni, U.S.D.J.) (19 pp.) In this insurance coverage dispute, plaintiff filed a motion to amend his complaint to add Independence Blue Cross (IBC) as a defendant, to assert a claim against IBC for violating § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), and to assert a claim of breach of fiduciary duty against IBC, defendant QCC Insurance Company and defendant ComCast, Corp. for failing to comply with 29 C.F.R. § 2560.503-1, which sets forth requirements for employee benefit plan procedures pertaining to claims for benefits by participants and beneficiaries. Plaintiff was an insured under a health insurance policy between ComCast, the plan sponsor, QCC, the plan administrator, and IBC, the insurer. The court grants plaintiff’s motion to amend in part and denies it in part. Plaintiff’s allegations are sufficient to support a claim that IBC exercised the discretion necessary to be considered a fiduciary under ERISA. Thus, the court will permit plaintiff to amend the complaint to assert a claim against IBC for violating § 502(a) of ERISA. Plaintiff’s factual allegations are insufficient to show plaintiff has a plausible claim that defendants breached their fiduciary duties by failing to comply with 29 C.F.R. 2560.503-1. [Filed Dec. 19, 2012.]
 
23-7-8610 Sperry Associates Federal Credit Union v. Cumis Insurance Society Inc., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (12 pp.) This case arises out of a claim by Sperry Associates for coverage under an insurance bond issued by Cumis for fraud committed on Sperry by third parties in a mortgage scheme. The court has granted Sperry partial summary judgment, leaving to be resolved claims for damages resulting from the breach of contract for losses covered by the bond and the bad-faith claim and associated extra-contractual damages. Before the court is a Rule 72(a) objection to the magistrate judge’s denial of Sperry’s request for leave to file a second motion for summary judgment on the issue of damages arising from the breach of contract. The court finds that Sperry wants two bites of the apple, as it has already moved for and was granted summary judgment for declaratory relief as to breach of contract and coverage under the bond and that, in light of the ongoing discovery issues related to damages, for both bad faith and mitigating circumstances, the magistrate judge’s denial of the request for leave is not clearly erroneous or contrary to law. [Filed Dec. 20, 2012.]
 
23-7-8629 Federal Ins. Co. v. von Windherburg-Cordeiro, U.S. Dist. Ct. (Pisano, U.S.D.J.) (8 pp.) Plaintiff filed this action alleging violations of New Jersey’s Insurance Fraud Prevention Act in connection with the claim filed by defendant, one of its insureds, for permanent total disability. Defendant moves to dismiss or, in the alternative, to stay this action, in light of an ongoing arbitration proceeding between the parties in which Federal has raised fraud claims. Finding that state law requires Federal’s IFPA claim be brought in a judicial forum, and that the Federal Arbitration Act does not supersede New Jersey’s law in this regard, the court denies defendant’s motion. [Filed Dec. 31, 2012.]
 
23-7-8630 State National Insurance Company v. Camden County, U.S. Dist. Ct. (Hillman, U.S.D.J.) (12 pp.) This matter concerns which entity is liable to pay for a multimillion-dollar state court jury verdict in favor of a plaintiff, who sued Camden County for injuries he sustained when he drove off the road and into a guardrail owned and maintained by the county. Before the court is the issue of which party must first produce its expert reports. The parties have agreed that the order of expert disclosure should follow the burden of proof, with the party bearing the burden on a claim to first disclose its witnesses offering opinion testimony, followed by the nonburdened party’s disclosure of its opinion witnesses. The parties have also agreed as to which party has the burden of proof on all claims, except for the determination as to whether the county provided an adequate defense and investigation of the underlying litigation. This issue is a dispositive factor in whether the State National insurance policy with the county is implicated. The court finds the adequate defense and investigation provision is a condition precedent to coverage, and, as such, the burden of proof is on the county to prove its fulfillment of that condition. [Filed Dec. 19, 2012.]
 
23-7-8666 Evanston Insurance Company v. Crocilla, U.S. Dist. Ct. (Hillman, U.S.D.J.) (12 pp.) In this insurance coverage dispute, plaintiff Evanston Insurance Company filed a declaratory judgment action, claiming that it does not have a duty to defend or indemnify defendant Elisabeth Crocilla and her massage therapy business, A-Way to Relax, in a lawsuit brought by Mia Wernega in New Jersey Superior Court. In the state court action, Wernega claims that Crocilla improperly touched her in a sexual manner. Wernega claims these incidents constituted battery, sexual assault, intentional infliction of emotional distress, professional negligence, general negligence, and negligent infliction of emotional distress. After Crocilla was served with Wernega’s complaint, she informed Evanston of the complaint, and sought defense and indemnification. Evanston denied Crocilla’s claim and her appeal of that denial based on four exclusions in the insurance policy. Evanston brought this declaratory judgment action against Crocilla, who has lodged a cross-claim against Evanston for bad faith. Both parties move for summary judgment. Because Wernega’s complaint is subject to a policy exclusion, Evanston is entitled to judgment in its favor on its declaratory judgment claim against Crocilla. As the court has found that Crocilla is not entitled to a defense or indemnification under the insurance policy, it cannot find that Evanston acted in bad faith in denying her claim. [Filed Dec. 26, 2012.]
 
INTELLECTUAL PROPERTY
53-7-8611 Gilead Sciences Inc. v. Natco Pharma Limited, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (8 pp.) This case concerns a dispute between plaintiffs Gilead Sciences Inc., Hoffmann-La Roche Inc., F. Hoffmann-La Roche Ltd. and Genentech Inc. and Natco Pharma Limited and Natco Pharma Inc. over access to a patented anti-influenza pharmaceutical product. Gilead owns the patent and seeks to prevent Natco from marketing a generic version of the product. The narrow issue concerns whether, between two closely related patents, the ’375 patent, the later-issued but earlier-expiring patent, can be used as a reference patent to invalidate the ’483 patent, the earlier-issued and later-expiring patent. The court grants plaintiffs’ motion for summary judgment, holding that because the issuance of the ’483 patent was not the result of any strategic abuse of the patent system by Gilead, the ’375 patent cannot serve as a reference patent to invalidate the ’483 patent because of obviousness-type double patenting. [Filed Dec. 21, 2012.]
 
LABOR AND EMPLOYMENT
25-7-8612 Marra v. Township of Harrison, U.S. Dist. Ct. (Simandle, U.S.D.J.) (24 pp.) This matter is before the court on defendants’ motion to dismiss the complaint and plaintiff’s unopposed motion seeking leave to amend his complaint. Plaintiff alleges that he was subject to adverse employment actions and he was passed over for promotions in retaliation for testifying against the former Harrison police chief in a discrimination suit. The amended complaint voluntarily withdraws two counts, adds facts about plaintiff’s testimony and adds language to Count I, brought under the Conscientious Employee Protection Act. The court will grant plaintiff’s motion to amend Count I to the extent that plaintiff claims he objected to Rodgers’ discrimination by testifying about that discrimination and to the extent plaintiff refused to testify falsely about Rodgers’ discrimination. However, the latter claim may only be asserted against Rodgers, and the motion to amend is denied to the extent plaintiff asserts that claim against any other individually named Defendants. The motion to amend is denied insofar as plaintiff asserts he was subject to retaliation as a result of the failure to discriminate against other employees. Plaintiff’s motion to amend Count III, which states a First Amendment retaliation claim, is granted. Defendants’ motion to dismiss is denied. [Filed Dec. 19, 2012.]
 
25-7-8631 Maresca v. The Port Authority of NY & NJ, U.S. Dist. Ct. (Salas, U.S.D.J.) (22 pp.) Plaintiff, a longtime and high-ranking employee of defendant, asserts claims for violation of her rights under the Equal Pay Act of 1963 and 42 U.S.C. § 1983 claims for violation of her First and Fourteenth Amendment rights. As to her claim that defendant paid her less than male employees for substantially equal work on account of her gender, the court finds that issues of fact exists as to whether plaintiff and her two male comparators performed work of substantially equal skill, effort and responsibility and as to whether there were reasons other than gender that determined the salary differential. It therefore denies defendants’ motion for summary judgment as it relates to the EPA claim under 29 U.S.C. § 206(d)(1). The court concludes that no genuine issues of material fact exist and that the moving parties are entitled to judgment as a matter of law as to plaintiff’s retaliation claim under 29 U.S.C. § 215(a)(3) of the EPA because she cannot prove that her Equal Employment Opportunity Commission complaint or her filing of this lawsuit were substantial motivating factors in the alleged retaliation (her reassignment and denial of merit increase). As to her First Amendment right-to-petition claim under § 1983, the court grants defendants’ motion for summary judgment because plaintiff fails to cite to any material facts from which a fact finder could find retaliation for plaintiff’s filing of the EEOC complaint and this action. Summary judgment is granted in favor of defendants on the claim of due process because plaintiff does not have a protected property interest to which due process protection applies. Summary judgment is denied with respect to the claim of equal protection because the court finds that a genuine issue of material fact exists as to whether an adverse employment decision was made against plaintiff where she was transferred with no reduction in salary and as to defendants’ motives in transferring her. The court also grants summary judgment to certain defendants on the surviving § 1983 claim in the absence of evidence of their personal involvement in any action against plaintiff. [Filed Dec. 27, 2012.]
 
25-7-8668 Diaz v. Donahoe, U.S. Dist. Ct. (Simandle, U.S.D.J.) (34 pp.) Defendant, sued in his official capacity as Postmaster General, moves for summary judgment in this action alleging that plaintiff’s termination as a transitional postal employee violated Title VII of the Civil Rights Act of 1964 because she was subjected to intentional employment discrimination on the basis of race (Hispanic), sex (female) and national origin (Puerto Rican), and that the termination was in retaliation for her raising allegations of prior discrimination. The court grants defendant’s motion, concluding that plaintiff has not adduced admissible evidence from which the finder of fact could reasonably conclude that she was treated differently from “similarly situated” nonminority employees, she has not shown materially adverse employment actions, and, to the extent she makes out a prima facie case for discrimination or retaliation, she has not proffered admissible evidence from which a reasonable fact finder would conclude that defendant’s asserted legitimate reasons for plaintiff’s termination or other adverse actions were pretextual. [Filed Jan. 4, 2013.]
 
25-7-8667 Crepy v. Reckitt Benckiser L.L.C., U.S. Dist. Ct. (Martini, U.S.D.J.) (11 pp.) Plaintiff, formerly an executive with defendant, filed this action after he allegedly was advised that his position in the United States was to be eliminated and was disingenuously offered a position in Singapore with no intention to actually employ him to that position but merely to allow him to be terminated without having to compensate him for six months after his termination in accordance with his employment contract. Defendant’s motion to dismiss the breach-of-contract claims is denied because plaintiff has sufficiently pleaded that the employment agreement and the letter of intent that he executed constitute binding contracts and that none of his actions provided a basis for defendant to immediately terminate him. Because is finds that plaintiff has stated a claim for breach of the two agreements, the court also denies defendant’s motion to dismiss the claims of breach of the duty of good faith and fair dealing. The court also finds that plaintiff has sufficiently alleged claims of fraud, fraud in the inducement and promissory estoppel, and defendant’s motion to dismiss those claims is denied. [Filed Jan. 7, 2013.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
25-7-8632 Brooks v. Brookdale Senior Living Communities Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) Plaintiff filed claims against her former employer, defendant Brookdale Senior Living Communities Inc., alleging discrimination and retaliation in violation of the New Jersey Law Against Discrimination and the New Jersey Workers’ Compensation Law. Defendant filed a motion to dismiss and to compel arbitration. Defendants argue that, by signing the associate handbook receipt and acknowledgment form, plaintiff waived her right to sue in court. Plaintiff responds that because both the handbook and the acknowledgment form state that they are not the basis for a “contract of employment,” neither document creates any binding commitment to arbitrate work disputes. Notwithstanding that the handbook explicitly states that “the policies and procedures set forth in this Handbook ... are not intended to create ... any other type of contract, nor are they to be construed as contractual obligations of any kind,” the court finds that plaintiff’s claim must be dismissed because she executed a valid waiver of her right to sue her employer for claims of discrimination and retaliation. Her remedy is to seek arbitration. Therefore, the court grants defendant’s motion. [Filed Dec. 20, 2012.]
 
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-8653 Segura v. Dr. Reddy’s Laboratories Inc., U.S. Dist. Ct. (Cooper, U.S.D.J.) (25 pp.) Plaintiff brings this action against defendant, Dr. Reddy’s Laboratories Inc., alleging violations of the Employee Retirement Income Security Act (ERISA) with respect to Dr. Reddy’s 401(k) profit-sharing plan (the plan). Defendant filed a motion to dismiss. Plaintiff alleges that Dr. Reddy’s failure to disburse his funds from the plan constitutes a violation of 29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(2. Although styled as a claim for breach of fiduciary duty, plaintiff has pleaded his claim under the statute pertaining to a wrongful denial of benefits and he has alleged facts that, if true, support such a claim. Therefore, the motion is denied as it relates to the failure to disburse the requested funds. The claim under 29 U.S.C. § 1132(c)(1) is dismissed without prejudice for failure to identify the provisions of ERISA that require the information sought to be provided and for failure to specify that a written request was made of Dr. Reddy’s regarding the summary plan description. [Filed Dec. 21, 2012.]
 
25-7-8669 Galligan v. Pepsi Beverages Co., U.S. Dist. Ct. (Linares, U.S.D.J.) (8 pp.) Defendant moves for summary judgment in this action asserting claims for unlawful denial of pension benefits and breach of contract. Finding that defendant did not abuse its discretion in interpreting the term “service” in the applicable pension plan to exclude the period of time he was receiving long-term disability benefits and thus to preclude plaintiff from recovering full benefits, the court grants defendant’s motion. [Filed Jan. 7, 2013.]
 
SECURITIES
50-7-8613 In re Merck & Co. Inc. Securities, Derivative and ERISA Litigation, U.S. Dist. Ct. (Chesler, U.S.D.J.) (10 pp.) Defendants move to dismiss the remaining Rule 10b-5(b) claim under § 10(b) of the Exchange Act and the claim under § 20(a) of the act in the individual securities fraud complaint filed by KBC Asset Management NV and others seeking to recover for losses sustained allegedly as a result of Merck’s misrepresentations and omissions of material fact regarding Vioxx. The action is one of eight Vioxx-related securities fraud actions pending as part of multidistrict litigation 1658. For the reasons expressed by the Tenth Circuit in Joseph, the court holds that the filing of the first class-action complaint tolled the statutory repose period applicable to KBC’s § 10(b) claim and it therefore denies Merck’s motion to dismiss that claim as barred by the statute of repose. Merck’s motion to dismiss the § 20(a) claim is denied because, in light of the finding that the § 10(b) claim may proceed, Merck’s argument that without a viable § 10(b) claim, the control-person claims lacks the necessary predicate of an independent violation of the Exchange Act is unavailing. [Filed Dec. 20, 2012.]
 
TAXATION
35-7-8654 United States v. Patras, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (32 pp.) This is a civil federal tax liability suit brought by the United States against defendant Ruth Patras pursuant to the Uniform Fraudulent Transfer Act (UFTA). The United States argues that defendant Patras’ husband, Dr. Anthony Patras, sought to evade his federal income tax liabilities by fraudulently transferring real property (the property) to defendant. The court concludes that defendant acquired the property through a fraudulent transfer, that her husband is the true owner, and that he owns the property subject to federal tax liens. The court also concludes that defendant has transferee liability and that the United States is entitled to a personal judgment against her. Accordingly, the court enters judgment in favor of the United States. [Filed Dec. 20, 2012.]
 
TORTS
36-7-8670 Angle v. United States, U.S. Dist. Ct. (Linares, U.S.D.J.) (14 pp.) Plaintiffs Frederick and Cheryl Angle bring this action along with two of their children, Brandon and Cassandra Gadow, pursuant to the Federal Tort Claims Act (FTCA). The Angle family lives in a house located approximately half a mile away from Picatinny Arsenal in New Jersey. The alleged injuries stem from a fragment from an artillery projectile striking the Angle home. In addition to the alleged property damage suffered, including diminished market value and stigmatization in the community, family members allege emotional injury of varying degrees. The court grants the defendant’s motion to dismiss. Plaintiffs’ claims of intentional infliction of emotional distress are dismissed without prejudice. The court dismisses with prejudice Frederick and Cassandra’s claims for negligent infliction of emotional distress and all of the plaintiffs’ Portee claims for negligent infliction of emotional distress. The court dismisses without prejudice Cheryl and Brandon’s claims for negligent infliction of emotional distress insofar as they can allege that there were within the “zone of danger” at the time of the incident. Finally, plaintiffs’ nuisance claims are dismissed without prejudice. [Filed Dec. 21, 2012.]
 
TORTS — INTENTIONAL TORTS
36-7-8614 Crescenz v. Penguin Group (USA) Inc., U.S. Dist. Ct. (Hillman, U.S.D.J.) (20 pp.) In this action asserting causes of action for defamation and false light arising out of the writing and publication of a book regarding the Vidocq Society and its members, including Frank Bender, which refers to plaintiff, a longtime artist’s assistant to Bender, as one of his girlfriends with whom he had a sexual relationship, the court grants defendants’ motion for summary judgment, finding that, even if the statements in the book about plaintiff fall into the private-figure/private-concern category and accepting as true her averments that she did not have a sexual relationship with Bender and that the author falsely stated that she did, plaintiff cannot meet her burden to show that defendants were negligent in making their statements. [Filed Dec. 31, 2012.]
 

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