Daily Decision Service Alert: Vol. 22, No. 30 – February 13, 2013

New Jersey Law Journal

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STATE COURT CASES
 
CONTRACTS
11-2-9002 CoActiv Capital Partners Inc. v. Englewood Housing Authority, App. Div. (per curiam) (10 pp.) Plaintiff, which finances leased office and business equipment, appeals from the trial court order granting summary judgment to defendant and dismissing its complaint seeking to recover damages arising out of defendant's alleged breach of a leasing agreement. The panel affirms, finding that the agreement, which was signed by EHA's executive without notice to its governing body, is void because it is subject to the Local Public Contracts Law and does not fall within an exception to the public bidding requirement; CoActiv is not an innocent party who fell victim to the fraud of a third party; and defendant may invoke the LPCL notwithstanding its having made payments under the lease agreement.
 
FAMILY LAW
20-2-9003 R.S. v. P.H., App. Div. (per curiam) (10 pp.) R.H. appeals from the trial court's orders denying, without a hearing, her application for a second paternity test in connection with her minor child, the first test having determined that defendant is not the child's biological father. Noting plaintiff's repeated failure to appear for testing pursuant to prior orders for a second test, and the interest of the putative father and the courts in finality, the panel holds that plaintiff is not entitled to repeatedly file an application for a second paternity test, fail to appear, and then initiate the process again and affirms the denial of her most recent application.
 
CRIMINAL LAW
14-2-9004 State v. Kelsey, App. Div. (Fuentes, P.J.A.D.) (10 pp.) By leave granted, the state appeals from the order of the trial court denying its application to compel defendant, a police officer of the city of Trenton, to produce a flashlight that may or may not be in defendant’s possession. The state claims it has probable cause to believe the flashlight may have been used by defendant illegally as a weapon, when defendant took part in a street brawl, during which at least one person sustained serious bodily injury from allegedly being hit with the flashlight. The trial court held that compelling defendant to turn over the flashlight under these circumstances would violate defendant’s right against self-incrimination. Relying on In re Addonizio, 53 N.J. 107, 129 (1968), we agree with the trial court and affirm. [Approved for publication.]
 
CRIMINAL LAW
14-2-9005 State v. Pierce, App. Div. (per curiam) (12 pp.) Defendant appeals from a judgment of conviction entered after a jury found him guilty of second-degree eluding. Three police officers identified defendant as the driver of a car that fled a motor vehicle stop. Although the State introduced a DVD produced by the video recording system in the police vehicle to corroborate the officers' identifications, defendant's face is not visible. Therefore the video does not provide corroboration for the identification. Defense counsel did not request a charge on identification nor did she otherwise object to the court's proposed jury charge. The appellate panel finds the court's omission of the unrequested identification charge was clearly capable of producing an unjust result. Misidentification was the only issue in the case. The defense theory was to challenge the accuracy and reliability of the identifications. Thus, a charge about the vagaries of eyewitness identification was critical. The panel reverses and remands for a new trial. On remand, the court shall apply the principles regarding the admission of eyewitness identification testimony enunciated in State v. Henderson and provide an appropriately tailored instruction on in-court and out-of-court identifications based upon the instructions approved by the Supreme Court. The court shall include the instruction on cross-racial identifications.
 
FEDERAL COURT CASES
 
CIVIL PROCEDURE — DISCOVERY
07-7-9006 Juster Acquisition Co. LLC v North Hudson Sewerage Authority, U. S. Dist. Ct. (Hammer, U.S.M.J.) (12 pp.) Juster, a New York company that invests in various business opportunities such as complex financing transactions and that responded to defendant's request for qualifications as part of its efforts to refinance and recapitalize the bulk of its primary debt, alleges that the parties executed a term sheet containing a binding exclusivity provision that defendant breached. It seeks to recover compensatory damages, costs and prejudgment interest, attorney fees and costs and other equitable relief. Defendant moves for a protective order regarding 67 word searches of electronically stored information demanded by Juster and, if its motion is denied, an order for fee shifting on plaintiff's requested electronic discovery. The court denies with prejudice defendant's motion for a protective order, finding that defendant has failed to present a compelling actual basis or sufficient legal background to support its motion for a protective order, and has failed to comply with Rule 26(c)(1) which requires the inclusion of a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court denies the motion for discovery fees because NJHSA has failed to satisfy its burden of showing that the ESI sought by Juster is inaccessible. Further, applying the Zubulake factors in light of the circumstances, the court does not find that fee-shifting is warranted. Finally, the court finds that because it denies defendant's request for a fee-shifting order, plaintiff's subsequent request that NHSA reimburse it for the electronic discovery it has incurred during the litigation is moot. [Filed February 11, 2013]
 
CIVIL PROCEDURE DISCOVERY
07-7-9007 Monk v. Johnson & Johnson, U.S. Dist. Ct. (Arpert, U.S.M.J.) (5 pp.) Before the Court is Defendants’ informal application to stay discovery in this putative class action while Defendants’ motion to dismiss Plaintiffs’ second amended complaint is pending. Defendants maintain the Private Securities Litigation Reform Act (PSLRA) requires such a stay. Defendants have moved to dismiss the newly asserted claims contained in Plaintiffs’ second amended complaint as well as two of the three claims which survived Defendants’ prior motion to dismiss. Defendants assert all of these claims “are closely related” and a stay would permit Defendants to avoid duplicative if not unnecessary discovery. Although acknowledging that the stay provisions of the PSLRA apply to discovery with respect to any newly added claims, Plaintiffs argue that Defendants’ application should be denied with respect to the claims which were the subject of Defendants’ previous motion. Otherwise, Plaintiffs assert, they will suffer undue prejudice. The Court rejects Plaintiffs’ argument that the imposition of the stay will cause undue prejudice. Both the newly asserted and previously pled claims relate to the same basic events. Permitting discovery to proceed with respect to the latter while imposing a stay as to the former, would cause confusion and conflict. Defendants’ application to stay discovery is granted. [Filed February 5, 2013]
 
CREDITOR’S AND DEBTORS’ RIGHTS ATTORNEY FEES
15-7-9008 Westberry v.Commonwealth Financial Systems, Inc., U.S. Dist. Ct. (Irenas, U.S.D.J.) (21 pp.) Plaintiff filed a complaint alleging that Defendant Commonwealth Financial Systems, Inc. violated the Fair Debt Collection Practices Act (FDCPA). She alleged that Commonwealth called her cell phone approximately two times a day for two to three weeks seeking payment of an alleged medical debt. According to the complaint, Plaintiff requested Commonwealth to stop calling her cell phone as she would be billed for those calls. She asked Commonwealth to communicate with her only by mail. Plaintiff alleged that Commonwealth continued to call her, hung up on her when she tried to confirm Commonwealth would stop calling her cell phone, and told her the FDCPA allowed Commonwealth to call her cell phone despite her protests. Commonwealth issued an Offer of Judgment, whereby Plaintiff would recover $1,001.00 in statutory and actual damages, plus reasonable attorney fees and costs. Plaintiff accepted the Offer of Judgment and the Court entered judgment. Plaintiff sought attorney fees and costs of $8,013.00. Commonwealth opposes the amount of the award. The Court grants Plaintiff’s motion for attorney fees but reduces the total award to $4,823.50. [Filed February 4, 2013]
 
LABOR AND EMPLOYMENT FAMILY AND MEDICAL LEAVE ACT
25-7-9009 Young v. The Wackenhut Corporation, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (12 pp.) After her employment was terminated, Plaintiff filed a complaint against Defendant The Wackenhut Corporation (TWC), asserting interference with rights under the federal Family and Medical Leave Act (FMLA) relating to a leave she took in connection with the birth of her child. Plaintiff argues that TWC failed to provide her with the individualized notice of her FMLA rights that is required when an employee requests FMLA leave or when an employer has knowledge that an employee’s leave may be for an FMLA-qualifying reason. TWC asserts that its summary of rights in an employee manual provided such individualized notice. TWC also posted the poster notifying employees of their FMLA rights in a location visible to employees. These actions satisfy only the general notice requirements.TWC’s failure to provide Plaintiff with individualized notice as required by the FMLA, coupled with TWC’ s failure to responsively answer Plaintiff’s questions about her rights and responsibilities, prevented Plaintiff from ascertaining her return to work date. TWC’s proffered reason for Plaintiff’s termination was that she failed to return to work after exhausting her FMLA leave. Plaintiff suffered prejudice because she was not afforded the opportunity to make informed decisions about her leave. Plaintiff’s motion for summary judgment is granted. [Filed February 1, 2013]
 
 
 

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