Daily Decision Service Alert: Vol. 22, No. 117 - June 18, 2013

New Jersey Law Journal

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STATE COURT CASES

 

ADMINISTRATIVE LAW — UNEMPLOYMENT COMPENSATION BENEFITS

01-2-0321 Doyle v. Board of Review, App. Div. (per curiam) (5 pp.) The Board of Review's decision upholding a decision of the Appeal Tribunal finding that appellant is ineligible for unemployment compensation benefits because she resigned voluntarily without good cause attributable to the work is affirmed since plaintiff never asked for accommodations at work, did not mention working conditions in her resignation letter, indicated that she was resigning because she was moving to Texas, no one at work ever indicated that her job was in jeopardy, and she could have continued working at Holy Name Hospital if she had not resigned.

 

CIVIL PROCEDURE — CLASS ACTIONS

07-2-0322 D'Andrea v. K. Hovnanian, App. Div. (per curiam) (20 pp.) By leave granted, defendants K. Hovnanian, Hovnanian Enterprise, Inc., and K. Hovnanian Venture I, LLC take an interlocutory appeal of the class certification to plaintiffs, who assert claims related to the heating, ventilation, and air conditioning (HVAC) systems in their homes, which were built by defendants. At issue is defendants' manner of construction of the return cavity that is a necessary component of the HVAC system in the homes of the proposed class, as the space in which return air is contained is an area of negative pressure. Since fire tends to move from positive to negative areas of pressure, it is important for safety reasons that those spaces are isolated with fireblocking from cavities not used for air movement. The trial court heard extensive expert testimony, and based on that testimony and the experts' written reports, concluded that plaintiffs had met the test for class certification. The appellate panel agrees, and finds that a class action is a better method than individual arbitration for adjudicating class members' claims in this case.

 

LABOR AND EMPLOYMENT — DISCRIMINATION

25-2-0323 Rabb v. Children's Place Retail Stores Inc., App. Div. (per curiam) (10 pp.) Plaintiff,  who is African-American and a former employee of defendant, appeals the summary judgment dismissing his complaint filed pursuant to the Law Against Discrimination which was based on his failure to file within the two-year statute of limitations applicable to LAD cases. Finding that the court erred in dismissing the complaint where discovery was not complete and conflicting certifications indicate a genuine issue of material fact concerning plaintiff's termination date, the panel reverses and remands for further proceedings.

 

LABOR AND EMPLOYMENT — LEGAL PROFESSION — ALTERNATIVE DISPUTE RESOLUTION

25-2-0324 Waskevich v. Herold Law, P.A., App. Div. (Koblitz, J.A.D.) (9 pp.) In this case involving an employment dispute between attorneys, we enforce federal law requiring bifurcation when some claims between parties must be arbitrated and one statutory LAD claim between the same parties must be tried. [Approved for publication.]

 

RESIDENTIAL AND COMMERCIAL REAL ESTATE — CONSUMER PROTECTION

34-2-0325 Wells Fargo Bank, N.A. v. Harrison, Chancery Div.-Bergen Cy. (Doyne, A.J.S.C.) (8 pp.) Defendant seeks an order granting a jury trial in this foreclosure action brought by plaintiff Wells Fargo Bank, N.A. Defendant’s counterclaims allege generic violations of the Consumer Fraud Act (CFA), breach of the covenant of good faith and fair dealing, and violations of the New Jersey Licensed Lender Act. Defendant also raises nineteen generic affirmative defenses. Defendant is not entitled to a jury in this foreclosure matter, nor is one appropriate. First, defendant’s counterclaims, which are notably generic, are not germane to the foreclosure action. Good cause is not present in this routine foreclosure action. Second, defendant will suffer no harm if its Law Division claims are precluded as the entire controversy doctrine does not bar non-germane claims from being litigated in a separate action. Finally, the instant action is primarily equitable in nature, and accordingly should be determined in the absence of a jury. Foreclosure actions are to be tried as any other chancery matter, i.e. without a jury. Defendant’s motion is denied.

 

TAXATION

35-5-0326 Gibbons v. City of East Orange, App. Div. (per curiam) (9 pp.) Plaintiff appeals from a judgment of the Tax Court. The Tax Court affirmed the judgment of the Essex County Board of Taxation, which affirmed the 2010 real estate tax assessment issued by defendant, the City of East Orange, regarding plaintiff's residential property. On appeal, plaintiff argues the Tax Court erred in rejecting her evidence limited to the purchase price to fix the value of the subject property for tax assessment purposes. Plaintiff relies on her proof of the purchase price of the subject property, established by her contract of sale dated November 3, 2009, very near the date of assessment. She argues the Tax Court properly accepted the purchase price as sufficient evidence to overcome the presumption of correctness and avoid involuntary dismissal, but then erred in rendering judgment for defendant in light of the fact that there was no competing proof offered as to the subject property's present value. The appellate panel disagrees and affirms substantially for the reasons stated by the Tax Court. Plaintiff did not present an opinion of value to buttress the asserted correctness of the sale price. She offered her suggestion that, at most, she would pay only $130,000 for the property; that statement falls far short of definite and positive proof showing the true valuation differs from the assessment. Although the sale was between unrelated parties, other factors suggest the contract price alone does not prove market value.

 

CRIMINAL LAW

14-2-0327 State v. Padva-German, App. Div. (per curiam) (17 pp.) The State appeals from an order granting defendant - a licensed dentist who provided mobile services to nursing homes, assisted living facilities and adult day care facilities and who pled guilty to third-degree Medicaid fraud in connection with those services - entry into the Monmouth County Pre-Trial Intervention Program over its objection. The panel reverses, finding that the trial court's conclusions related to the State's articulated reasons for rejecting defendant's admission into PTI are not supported by the record and reflect the court's substitution of its judgment over that of the prosecutor. Thus, the prosecutor's considering defendant's actions as a breach of the public trust was not clearly erroneous; the State did not fail to acknowledge defendant's amenability to rehabilitation and motivation to succeed in PTI; the State's desire for uniformity in the prosecution of similarly situated defendants does not signify a policy to exclude all Medicaid fraud defendants from PTI and the State's refusal to treat defendant differently from other cooperating witnesses within her criminal enterprise does not constitute a patent and gross abuse of discretion; and consideration of the ultimate offense for which defendant could have been charged versus the actual offense for which she was charged was not arbitrary. Finally, the panel notes that the fact that defendant has completed PTI does not render the State's appeal moot.

 

                                                FEDERAL COURT CASES

 

ALTERNATIVE DISPUTE RESOLUTION

03-7-0328 Precision Funding Group LLC v. National Fidelity Mortgage, U. S. Dist. Ct. (Schneider, U.S.M.J.) (19 pp.)  Plaintiff and defendant are competing mortgage brokerage firms. After two of plaintiff’s employees left to work for defendant, plaintiff sued, alleging, inter alia, commercial disparagement, unfair competition and intentional interference with a contractual relationship claim. Plaintiff also filed arbitration complaints against its former employees, alleging, inter alia, breach of their employment agreements, defamation, and intentional interference with contractual relationships.. Defendant is seeking to compel plaintiff to arbitrate its claims against defendant based on the terms of the arbitration clauses in the employees’ employment agreements. The court concludes that defendant has standing to compel plaintiff to arbitrate its claims, although it is not a party to the agreements, under a theory of equitable estoppel because of the inextricable connection between the claims in this case and plaintiff's arbitration claims against the employees and the inextricable connection between defendant and the employees, and that the claims are within the scope of plaintiff's arbitration clauses. The court therefore grants defendant's motion to compel arbitration, It does not address defendant's alternate argument that the matter should be stayed pending resolution of the employees' arbitrations, finding that argument moot. [Filed May 31, 2013]

 

BANKRUPTCY

42-6-0329 In re Nacinovich, U. S. Bankruptcy Ct. (Kaplan, U.S.B.J.) (9 pp.) In this adversary proceeding, plaintiff-debtor alleges that defendant Holiday City at Berkely Shareowners Corp. attempted to collect a $2900 debt from plaintiff that had been previously discharged. Holiday City had a preexisting recorded lien of $570 for outstanding maintenance fees on non-residential real property in the age restricted senior community operated by Holiday City  The court concludes that, under the terms of Holiday City's Declaration of Covenants and Restrictions, Holiday City possesses a lien on the property for the full amount of all outstanding accumulated assessments and fees and, accordingly, the automatic stay pursuant to 11 U.S.C. section 362(a) does not proscribe its efforts to pursue collection of its in rem claim. [Filed May 31, 2013]

 

CIVIL PROCEDURE

07-7-0330 Diarrassouba v. United States of America, U. S. Dist. Ct. (Cooper, U.S.D.J.) (3 pp.) Pro se petitioner seeks to vacate, set aside, or correction his sentence pursuant to 28 U.S.C. section 2255 and moves pursuant to 18 U.S.C. section 3006A. Noting that there is no constitutional right to counsel for pro se litigants in civil cases in general, or in proceedings brought pursuant to Section 2255 in particular, the court denies the motion without prejudice, finding that petitioner has shown that he is able to articulate his claims and represent himself and that he fully comprehends the issues here. The court directs the parties to file supplementary briefing on whether Chaidez v. United States offers any guidance as to the disposition of the 2255 motion. [Filed June 3, 2013]

 

CIVIL PROCEDURE

07-7-0331 In re: Subpoena to Janet Rehberger, U. S. Dist. Ct. (Bongiovanni, U.S.M.J.) (7 pp.) Non-party Janet Rehberger filed a motion to quash the subpoena served upon her in a matter filed by her husband, Paul Rehberger against Defendant Honeywell International, Inc. The complaint arose from Paul’s purchase of a Honeywell electronic air cleaner. The complaint alleges, inter alia, fraud, fraud by concealment or omission, and negligent misrepresentation. Paul alleges that he noticed a strange odor in his home and became sick after installing the Honeywell unit. In support of her motion, Janet asserts that the subpoena is irrelevant, unduly burdensome and harassing. The Court finds that Janet’s testimony is relevant to the causes of action in Paul’s complaint. Although she is not a party and declares that she has no involvement with the purchase or installation of the air cleaning unit, Janet was living in the home at the time. Therefore, she has relevant first-hand knowledge of the effects of the air cleaning unit and can testify as to any interaction she had with the unit. The Court finds that the information sought by way of Janet’s deposition is not covered by the marital communications privilege and, assuming arguendo that it was, such privilege does not preclude the deposition from taking place. Finally, Janet has not shown that her testimony would be cumulative and duplicative so as to rise to the level of undue burden. The motion to quash is denied. [Filed May 21, 2013]

 

CONTRACTS

11-7-0332 Neshaminy Constructors Inc. v. EFCO Corp., U. S. Dist. Ct. (Thompson, U.S.D.J.) (7 pp.) Plaintiff, the winning bidder on a state contract to re-construct a bridge, initiated this lawsuit asserting claims for breach of implied in fact contract, negligent misrepresentation, breach of warranty, detrimental reliance, promissory estoppel, and breach of a partial settlement agreement arising out of its rental from defendant of custom-designed concrete forming equipment. Plaintiff claims that the equipment design was defective, causing plaintiff to incur extra costs on the project. The court finds that the parties' rental agreement incorporated the parties' previous negotiations concerning design of the equipment, is integral to plaintiff's claims, and that those claims are therefore subject to the rental agreement's forum selection clause. Therefore, the court finds that dismissal of the complaint is necessary so that plaintiff may re-filed its claims in Iowa state court. Defendant's motion to dismiss is granted. [Filed June 3, 2013]

 

 EDUCATION

16-7-0333 S.M. v. Marlboro Twp. Bd. of Educa., U. S. Dist. Ct. (Shipp, U.S.D.J.) (11 pp.) Plaintiffs, the parents of a 12-year old boy with autism and a developmental disability, filed this action after the Garden Academy sent them and defendant board of education a letter advising that it was terminating the child's placement there. Plaintiffs seek an order compelling weekly home programming pending litigation and reimbursement for costs they incurred to provide home programming and/or compensation for programming not provided after the termination letter. They also challenge the OAL's dismissal of their petition for due process. Because a procedural violation is actionable under the IDEA only if it results in a loss of educational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of education benefits, the court denies plaintiffs' motion for summary judgment since,  even assuming a procedural violation took place in the way the child was terminated, plaintiffs have not adequately shown how that violation has resulted in a loss of educational services since the child was not removed from the academy until a settlement was reached and the parents' rights were protected in the mediation forum and subsequently before the OAL, and any deprivation due to the lack of an IEP meeting was not due to the academy as it is the district that has the authority to convene such a meeting. Finding that there is a material factual dispute regarding the meaning of "home programming," the court remands plaintiffs' claim that the child was denied weekly home programming without due process. [Filed May 31, 2013]

 

IMMIGRATION LAW

51-7-0334 Naik v. Renaud, U. S. Dist. Ct. (Pisano, U.S.D.J.) (13 pp.) This immigration matter concerns Plaintiff’s Petition for Alien Relative (“I-130 petition”), which he filed on behalf of his wife. Defendant Daniel Renaud is the Director of the Vermont Service Center, which is part of United States Citizenship & Immigration Services. Defendants denied Plaintiff’s I-130 petition because the Adam Walsh Act prohibits Defendants from granting the I-130 petition of a United States citizen convicted of a specified offense against a minor unless the Secretary of Homeland Security determines that the citizen poses no risk to the alien. Plaintiff appealed this decision to the Board of Immigration Appeals, which remanded the I-130 petition to Defendants to obtain more information. Defendants sent Plaintiff a Notice of Intent to Deny (“NOID”) his petition and requested additional information. Prior to responding to the NOID, Plaintiff filed this complaint challenging Defendants’ denial of his I-130 petition and requesting that the Court approve the I-130 petition. Here, the Court grants Defendants’ motion to dismiss for lack of jurisdiction and for failure to state a claim. There is no final agency action on Plaintiff’s I-130 petition, meaning the Court does not have subject matter jurisdiction. Defendants’ denial of Plaintiff’s I-130 application does not represent final agency action because it does not mark the consummation of the agency’s decisionmaking process. There is no final agency action subject to judicial review, the claims are not ripe, and two of the claims are moot. [Filed May 22, 2103]

 

LABOR AND EMPLOYMENT DISCRIMINATION

25-7-0335 Miller v. Advocare, LLC, U. S. Dist. Ct. (Rodriguez, U.S.D.J.) (10 pp.) Plaintiff Nancy Miller filed a complaint against Defendant Advocare, LLC alleging violations of the Family and Medical Leave Act (FMLA) and the New Jersey Law Against Discrimination. Defendant filed a motion to dismiss for lack of prosecution. Miller failed to adhere to two Court Orders and did not respond to Advocare’s motion to dismiss. Plaintiff’s dilatoriness continued after her counsel was permitted to withdraw from the case and she has failed to notify the Court whether she intends to proceed, with new counsel or pro se. After a review of the factors outlined in Poulis, the Court finds that dismissal with prejudice is warranted. [Filed May 21, 2013]

 

LABOR AND EMPLOYMENT — DISCRIMINATION

25-7-0336 Paris v. Lockheed Martin Corp., U. S. Dist. Ct. (Rodriguez, U.S.D.J.) (13 pp.) In this action alleging age discrimination in violation of the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination, the court grants defendant's motion for summary judgment on the claims of age discrimination, finding that the record indicates the absence of age as a factor in the employment decisions cited by plaintiff - his low interim rating and allegedly younger employees being assigned lead positions - and thus plaintiff has failed to establish an essential element of his prima facie case.  The court also grants summary judgment on the retaliation claim, finding that the negative interim performance evaluation and failure to promote when plaintiff expressed interest in pursuing a “baseline lead” position preceded his protected activity (an EEOC complaint)  and the actions that occurred after or contemporaneously with his protected activity were favorable toward him. [Filed June 3, 2013]

 

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