Aug. 15 to 21, 2013

Unapproved Opinions

New Jersey Law Journal

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Aug. 15 to 21, 2013
STATE COURT CASES
 
ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION
01-2-1015 I/M/O Correction Major, Department of Corrections, App. Div. (per curiam) (13 pp.) The New Jersey Law Enforcement Commanding Officers Association (NJLECOA) appeals from a final decision of the Civil Service Commission approving a change to the State Classification Plan that created the title of Correction Major in the Department of Corrections to consolidate comparable functions performed by existing custody supervisory staff in the titles of Correction Captain, Director of Custody Operations 1 and Director of Custody Operations 2 (collectively DOCOs). NJLECOA contends that the DOC’s request to abolish the Captain and DOCO titles was motivated by anti-union bias which it should have been allowed to prove at a contested hearing. The panel affirms substantially for the reasons expressed by the Commission, including that: the DOC’s determination that it did not need three titles responsible for the overall supervision of the custody staff was not arbitrary, capricious, or unreasonable and thus that the creation of the Correction Major title to consolidate comparable functions performed by incumbents in the DOCO and Captain titles was appropriate; the NJLECOA’s allegations that the DOC was using the consolidation to try and break the recently recognized union representation for the DOCOs or avoid the collective bargaining process were issues for PERC; and because the DOC only proposed reclassifying employees’ titles, and not the elimination of positions, and all employees would retain their positions and current salaries, or receive an immediate increase in salary, no hearing was required. [Decided Aug. 15, 2013.]

 
ADMINISTRATIVE LAW — HEALTH LAW
01-2-1065 M.F. v. Division of Medical Assistance and Health Services, App. Div. (per curiam) (15 pp.) M.F. , who suffers from multiple illnesses, including anoxic encelopathy and cerebral palsy and who is nonverbal and uses a wheelchair and a gastrostomy tube, appeals the final agency decision of the Director of the New Jersey Division of Medical Assistance and Health Services (DMAHS) limiting the amount of Private Duty Nursing (PDN) services that M.F. receives through the Division of Disability Services (DDS) to 16 hours, inclusive of the services provided by and during school hours. The panel affirms, concluding that the ALJ’s interpretation of the Community Resources for People with Disabilities (CRPD) Waiver program regulations, which was adopted by the Director — that the “other sources” DDS may consider in accounting for the 16 hours per day of PDN services includes the PDN services provided by the school district — was reasonable, the ALJ did not misapply or misinterpret the regulations, the state has not created impermissibly more restrictive eligibility criteria than the federal government, and M.F. has not shown that the decision was arbitrary, capricious or unreasonable. [Decided Aug. 21, 2013.]

 
CONTRACTS
11-2-1043 Pemberton CC LLC v. D.R. Horton Inc., App. Div. (per curiam) (13 pp.) In this breach-of-contract action arising out of the parties’ contract and amendments providing for the acquisition and development of more than 600 acres in the Pine Barrens to establish age-restricted housing units and allocating the parties’ responsibilities for the venture, the panel affirms the court’s determination that Horton breached the agreement and waived its right to enforce the provision Pemberton breached substantially for the reasons expressed below. It remands for reconsideration of damages. As to the court’s requirement that Pemberton issue Horton notes and mortgages on designated properties securing the funding Horton provided, the panel says that because this obligation includes the return of funds to Horton that were defined by the parties as liquidated damages that Pemberton was entitled to keep after Horton’s breach, the court erred. The panel affirms the judge’s denial of Pemberton’s claim for damages based on lost profits because there was no evidence supporting a finding on the number of likely sales if the parties had proceeded as agreed and because Pemberton, having received liquidated damages, was not entitled to any further relief. The court reverses regarding the provision of the damages award requiring Horton to make extension payments due under contracts for the purchase of property not yet due when Pemberton terminated the contract, agreeing that enforcement of the liquidated damages clause, implying that the clause was reasonable, barred equitable relief in the form of partial specific performance. [Decided Aug. 19, 2013.]

 
11-2-1055 Pantelopoulos v. Fort Lee Federal Savings Bank, App. Div. (per curiam) (43 pp.) This appeal arises out of plaintiff’s purchase of a participation interest in a loan that defendant Fort Lee Federal Savings Bank made to defendant 9211 Bergen Boulevard, LCC. After Boulevard defaulted and FLFSB failed to repay plaintiff as promised, he filed this pro se suit against the bank and its president (the Bank defendants) and Boulevard and its principal (collectively Bergen defendants) seeking repayment and other relief based on, inter alia, claims of breach of contract, fraud and the Consumer Fraud Act. The trial court dismissed plaintiff’s direct claims against the Bergen defendants, finding plaintiff lacked privity to sue, but denied the Bergen defendants’ application for fees based on a claim of frivolous litigation. Boulevard ultimately cured its default and FLFSB paid plaintiff the principal owed plus interest. The court then granted the Bank defendants summary judgment, dismissing plaintiff’s remaining claims for counsel fees, costs and consequential damages. Plaintiff appeals from the dismissal of its claims against the Bergen defendants and the grant of summary judgment to them. The Bergen defendants cross-appeal from the denial of fees based on their claim of frivolous litigation. The panel affirms the dismissal of plaintiff’s claims against the Bergen defendants, the denial of fees for frivolous litigation and the grant of summary judgment dismissing plaintiff’s claims against the Bank defendants. [Decided Aug. 20, 2013.]

 
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-1017 Eichenbaum & Stylianou, LLC v. Osaedebiri, App. Div. (per curiam) (4 pp.) Plaintiff RAB Performance Recoveries filed an action against defendant seeking to recover a past due balance in connection with a Chase Bank Visa account. Defendant appeared for the calendar call but failed to appear when the case was called for mediation. Defendant alleges that he was in the restroom. He contends that when he returned to the courtroom he was informed that the case had been called and that default had been entered against him. Defendant appeals from the denial of his motion to vacate the default judgment entered against him. Because defendant has not provided the court with his original motion to vacate the default judgment, opposition to it, or any transcript of the motion hearing if one was held, the court has no basis by which to determine whether defendant demonstrated excusable neglect or a meritorious defense. The motion judge’s determination that defendant failed to show excusable neglect and a meritorious defense is affirmed. [Decided Aug. 15, 2013.]

 
CRIMINAL LAW
14-2-1023 State v. Stubbs, App. Div. (per curiam) (45 pp.) Defendants Angelique and Jules Stubbs, husband and wife, separately appeal from their convictions, after a jury trial, of fourth-degree possession of marijuana, second-degree possession of marijuana with intent to distribute, and third-degree possession of marijuana with intent to distribute it within 1,000 feet of a school. Each defendant raises numerous issues in challenging their convictions, but they join in challenging the court’s denial of a motion to suppress the fruits of a search of their home. Jules also challenges his sentence as excessive. The panel affirms as to Jules. It remands for a hearing as to the admissibility of a currency seizure form that Angelique signed. The state argued Angelique’s signature represented a claim she owned a substantial amount of cash that officers seized, which the state argued was connected to drugs. If the state does not prove that the document was properly admitted as an adoptive admission, as we discuss below, then the document shall be suppressed, the conviction reversed, and a new trial ordered. In all other respects, Angelique’s conviction is affirmed. [Decided Aug. 15, 2013.]

 
14-2-1061 State v. Ramalho, App. Div. (per curiam) (23 pp.) The appellate panel agrees with defendant, who was convicted of murder and weapons offenses in connection with the stabbing death of her former wife, that the trial court’s response to the deliberating jurors’ request for an explanation of and reinstruction on the legal definitions of insanity and the three forms of homicide at issue warrants reversal, because the reinstruction did not include direction on the relevance of evidence of defendant’s mental condition to the state’s burden of proving the elements of murder, a discussion that was included in the oral instruction on murder preceding deliberation, and it thus injected an inconsistency clearly capable of affecting the jury’s deliberations and its verdict on murder.  It therefore reverses the murder conviction and remands. The panel affirms the denial of defendant’s motion to suppress certain of his statements for the reasons expressed below and finds no abuse of discretion in the trial court’s decision to admit photographs of the victim’s injuries. The panel declines to afford defendant, a Brazilian citizen, relief on his claim that his rights under the Vienna Convention on Consular Relations were violated in the absence of a showing of prejudice. [Decided Aug. 20, 2013.]

 
EDUCATION
16-2-1018 In re Paterson School District QSAC Appeal, App. Div. (per curiam) (11 pp.) In this appeal, the Paterson Public School Advisory Board of Education appeals the decision of the Acting Commissioner of Education declining to recommend the partial withdrawal of State intervention in the district, in accordance with the statutory authority accorded under N.J.S.A. 18A:7A-10 to -60. The panel finds that the commissioner’s decision was not arbitrary, capricious or unreasonable and affirms since although the district scored greater than 80 percent in the area of governance in the 2011 QSAC evaluations, the benchmark for measuring satisfactory performance in the area of governance, he found that it had not demonstrated sustained and substantial progress and there is no basis to interfere with those findings, nor is his decision inconsistent with previous agency determinations regarding the Newark and Jersey City school districts. [Decided Aug. 15, 2013.]

 
FAMILY LAW
20-2-1029 Loch v. Loch, App. Div. (per curiam) (15 pp.) Plaintiff Thomas Loch appeals from a Family Part order granting defendant Joyce Loch’s motion for enforcement of the parties’ property settlement agreement and denying his motion to confirm the parties’ modification of the support and equitable distribution terms of the PSA. He also appeals from that part of the order compelling him to obtain the life insurance required by the PSA and denying his request for counsel fees. The panel affirms as to the insurance policy and attorney fees. However, finding that the court erred in determining the support and equitable distribution aspects of the motion without holding oral argument and an evidentiary hearing where there is an issue of whether the parties’ course of conduct showed a waiver of the requirement in the PSA that any modification of its terms be in writing and where the parties certifications show material factual disputes, the panel remands for a plenary hearing on these issues. [Decided Aug. 16, 2013.]

 
INSURANCE — TORTS
23-2-1045 Cottle v. Walgreens, App. Div. (per curiam) (18 pp.) In this personal injury action filed after Deanna Cottle slipped and fell on black ice in Walgreen’s parking lot, third-party defendant Farm Family Casualty Insurance Company, which insured Pieco Services Inc. with which Walgreens had an oral contract for snow removal and salting services, appeals from the order requiring it to indemnify Walgreen’s and pay attorney fees and costs on Walgreen’s declaratory judgment action for coverage. The panel affirms, finding that there is clearly a nexus between plaintiff’s claims and Pieco’s services and thus that Farm Family was obligated to indemnify and defendant Walgreen’s under the terms of the policy it issued to Pieco; summary judgment was appropriately granted where the record identifies the extreme warm and cold temperatures following the snowfall as the source of the black ice and there is no other evidence as to its source; and the trial court adhered to relevant precedent in its examination of Walgreen’s fees and costs and there was a rational explanation for all her conclusions. [Decided Aug. 19, 2013.]

 
LABOR AND EMPLOYMENT
25-2-1019 In The Matter of Sylvester Henderson, Department Of Human Services, App. Div. (per curiam) (7 pp.) Henderson appeals from the final decision of the Civil Service Commission regarding his requested review of appointments made to the positions of Medical Security Officer Recruit and Senior Medical Security Officer by the Department of Human Services (DHS). Henderson argues that the April 2008 list of eligibles wrongly omitted the names of 14 people, including his. He contends that DHS made appointments of people who ranked lower than him while his name was wrongfully omitted, and he should be accorded a retroactive appointment date. The Commission found that Henderson did not provide any documentation in support of his contention that he was improperly bypassed in violation of the ‘Rule of Three.’ The Commission noted that there was no evidence that Henderson appealed his rank or score or that there was any error in not placing his name on the initial certification. Further, Henderson was provided an “equitable remedy” when his name was added to the list for the next certification. Henderson also argues that DHS used a “special promotional list,” promoting provisional appointees even though they had never taken any examination and that some of those appointees remained in that status for more than twelve months. The Commission concluded that although provisional appointments were made, those individuals were properly appointed and achieved permanency as in accordance with Civil Service law and rules. The appellate panel finds the Commission’s final decision is supported by sufficient credible evidence on the record. [Decided Aug. 15, 2013.]

 
25-2-1046 Fraternal Order of Police — New Jersey Labor Council Inc. v. Township of Pennsville, App. Div. (per curiam) (10 pp.) Plaintiff appeals from a Chancery Division order dismissing its complaint in which it sought to vacate an arbitration award upholding a disciplinary action against a patrolman. The panel finds that N.J.S.A. 40:14-118 empowers the governing body of a municipality to adopt an ordinance establishing a police department and delegating to others the authority to prepare rules and regulations for the control of that department and the discipline of its members, without the need for separate ordinance, and that the ordinance did not contravene the statute by designating the mayor as the appropriate authority responsible for the overall performance of the police department while designating the Township Committee as the body responsible for adoption of the department’s rules and regulations, and since the patrolman was disciplined under validly enacted rules and regulations, the panel affirms. [Decided Aug. 19, 2013.]

 
25-2-1057 Camden Organization of Police Supervisors v. Camden, App. Div. (per curiam) (14 pp.) In this action arising out of Camden’s layoff of city police officers, Camden Organization of Police Superiors, Fraternal Order of Police Lodge #1, and seven affected police officers appeal from a January 26, 2011, order of the Law Division and from two final agency determinations of the New Jersey Civil Service Commission dated December 22, 2011, which denied them the relief they sought from the layoffs. The panel affirms, finding (1) if appellants believed that the CSC lacked the requisite quorum to approve the layoff plan, they could have filed an administrative appeal or appealed the final agency decision approving the layoff plan, but they did neither and, therefore, the panel declines to address whether the CSC had the requisite quorum; (2) appellants Davila, Kryzer, Smith, who were reduced in rank because of the displacement rights of other officers, and Rivera, who was laid off, were properly granted back pay because of a lack of proper notice of the layoffs but the CSC’s determination that they were not entitled to reinstatement of benefits such as time in service and rank because the layoff was not improper is entitled to deference and was not arbitrary or capricious; (3) the CSC’s determination that although the certified mail notice sent to appellants Coleman, Frett and Weitzel was returned, the ordinary mail notice was not and was adequate notice is entitled to deference. [Decided Aug. 20, 2013.]

 
25-23-1058 Sanders v. University of Medicine & Dentistry, App. Div. (per curiam) (14 pp.) Plaintiff, an African-American who was employed in the at-will position of manager of the Affirmative Action/Equal Employment Opportunity Office at the School of Osteopathic Medicine, Stratford campus, appeals the Law Division order which granted summary judgment to defendant and dismissed with prejudice plaintiff’s remaining claims of race discrimination-based failure-to-hire and retaliation in violation of the New Jersey Law Against Discrimination, filed after defendant consolidated functions into a single office at the Newark campus and eliminated the AA/EEO offices at its New Brunswick and Stratford campuses and plaintiff was not rehired for either of the two positions he applied for. The panel affirms the dismissal, finding that according plaintiff all favorable inferences from the evidence, he cannot prove his claims since there is no evidence that defendant engaged in any activity or practice rendered unlawful under the LAD, no evidence of retaliatory conduct, and plaintiff cannot show that he was qualified for either of the positions for which he applied, or that UMDNJ continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status; nor can he prove pretext. [Decided Aug. 20, 2013.]

 
LAND USE AND PLANNING
26-2-1020 Nuckel v. Borough of Little Ferry, App. Div. (per curiam) (26 pp.) Plaintiffs, Donald Nuckel and business entities that he owns or controls, filed a Mount Laurel complaint alleging that defendants, including the Borough of Little Ferry, failed to satisfy their constitutional duty to provide affordable housing for low- and moderate-income persons. Nuckel succeeded in invalidating Little Ferry’s zoning ordinances, and the case proceeded to the builder’s remedy stage. Little Ferry opposed the builder’s remedy, objecting to high-rise buildings. Judge Harris struck a compromise, granting Nuckel a builder’s remedy but limiting the height of the proposed structures to eight stories. Nuckel decided that the height restriction made his plan financially unfeasible and moved to withdraw his property from the builder’s remedy. Judge Harris granted his motion and dismissed with prejudice his claim for a builder’s remedy. Mount Laurel litigation continued, by Nuckel and other developers. The borough entered into a settlement and an agreement with another developer to include affordable housing within its proposed project for a 14-story hotel and other commercial uses. Nuckel now appeals from both the final judgment of compliance and the limitation earlier imposed on the builder’s remedy he had sought. Nuckel seeks to revive the builder’s remedy claim that he was permitted to withdraw with prejudice more than four years ago. He contends that limiting the building height to eight stories was an abuse of the court’s discretion in awarding him a builder’s remedy. The appellate panel rejects his arguments and affirms all aspects of the trial court’s decisions. [Decided Aug. 15, 2013.]

 
LEGAL PROFESSION — ATTORNEY FEE RECOVERY
04-2-1021 Manfredonia Law Offices, LLC v. Sicardi, App. Div. (per curiam) (6 pp.) Defendant appeals from an order enforcing a settlement, arguing that the settlement was supported by “inadequate consideration” and was “manifestly unfair.” He also argues that the settlement was obtained through “duress [and] coercion” exerted by his attorney at a settlement conference. Plaintiff represented defendant in litigation involving an estate in which defendant had an interest. Decedent’s sister filed a complaint contesting the probate of a will, claiming the will was procured through undue influence. That case was concluded by a settlement in which defendant received 80 percent of the estate assets valued at $700,000. Following that litigation, defendant refused to pay plaintiff the legal fee he was owed. After giving defendant the requisite fee arbitration notice, plaintiff filed a complaint for breach of contract. The parties reached a settlement whereby defendant would pay $50,000 to plaintiff within seven days and plaintiff’s complaint would be dismissed with prejudice. Defendant did not make payment. The motion judge neither erred nor abused his discretion in enforcing settlement. The terms of the settlement were clear and uncomplicated; defendant was represented by counsel; defendant replied appropriately to the questions put to him on the record and testified that he understood the settlement, wanted to settle and acknowledged his representation by counsel. He stated he was neither forced nor coerced to settle and had no questions of his attorney. No compelling reasons or extraordinary circumstances warranted vacating the settlement. [Decided Aug. 15, 2013.]

 
MEDICAL MALPRACTICE
29-2-1022 Sy v. Brescia, App. Div. (per curiam) (16 pp.) Plaintiff-infant and his mother appeal from the trial court order granting summary judgment to Dr. Thomas A. Migliaccio, an obstetrician, the only remaining defendant in this medical malpractice case. The panel affirms, finding, inter alia, that plaintiffs’ expert’s affidavit of merit opined that the critical time period when the deviations occurred, which were causally related to the resulting injuries, was a time during which Migliaccio was not contacted and thus there is nothing causally linking any deviation from the standard of care to Migliaccio. Even assuming that the expert intended that his Affidavit of Merit and expert report be considered together, the affidavit does not identify standards in support of the contention that the mother’s labor curve was prolonged and thus the opinion is a net opinion. Nor did the court abuse its discretion in denying plaintiffs’ request to submit a second final report since such a report would not affect the substantive deficiencies in the affidavit of merit, the only document that could establish a prima facie case against Migliaccio. [Decided Aug. 15, 2013.]

 
29-3-1047 Zinn v. Chalom, Law Div. (Essex County) (Vena, J.S.C.) (7 pp.) In this medical malpractice action alleging that defendants’ delayed diagnosis and treatment of decedent’s Group B streptococcal meningitis resulted in his death, defendants move to bar the testimony of plaintiff’s expert, who was not certified in the same subspecialty as defendants. The court denies the motion, finding that notwithstanding the fact that decedent’s death did not occur until 2006, after the Patients First Act became effective, the malpractice action accrued on the date that the alleged malpractice occurred, in February 2004 — before the Patients First Act went into effect. Accordingly, plaintiff’s expert is not bound by the heightened requirements of the Patients First Act, and will not be barred from testifying because he is not certified in the same subspecialty as defendants. [Decided Aug. 19, 2013.]

 
REAL ESTATE — CORPORATIONS
34-2-1048 Lustig v. Regency Co-op Inc., App. Div. (per curiam) (13 pp.) Plaintiff, a shareholder in the defendant corporation who leases an apartment in a complex known as Regency Towers, appeals from a decision of the Chancery Division, dismissing her complaint against defendant and a second decision awarding defendant attorneys’ fees that arose out of her disputes with defendant regarding the denial of her request to enclose her balcony and defendant’s attempts remediate a bedbug infestation in the building. The panel affirms  the judge’s findings, including that defendant had acted appropriately in taking action to resolve the bedbug issue, that plaintiff and her husband had notice of the lawsuit and purposely ignored the extermination deadlines, that plaintiff violated the lease by failing to contract with an exterminator by the date specified and by failing to provide defendant with a treatment report by the date specified, and that defendant was entitled to attorney fees, for the reasons expressed below, including that the facts amply support the award of attorney fees to defendant. [Decided Aug. 19, 2013.]

 
REAL ESTATE — FORECLOSURE
34-4-1049 BMR Funding LLC v. F II, Chancery Div. (Bergen County) (Doyne, A.J.S.C.) (35 pp)  Defendants move to dismiss this foreclosure action which arises out of a series of promissory notes and mortgages entered into between the parties on which plaintiff has defaulted. The notes and mortgages provide that their terms are subject to New York law; a related foreclosure proceeding has taken place in Massachusetts; and a proceeding to foreclose on New York property is ongoing. The court denies the motion, finding that defendants have failed to demonstrate that collateral estoppel, res judicata, R. 4:6-2 or R. 4:5-1(b) justify dismissal of plaintiff’s complaint. However, although plaintiff has adequately demonstrated a prevailing view that §§ 1301 and 1371 do not apply to foreign foreclosures, equity and public policy may compel a finding in favor of defendants to the extent a deficiency determination would be prudent and equitable. However, neither the determination of the amount of the debt nor the sufficiency of evidence documenting plaintiff’s position as a holder of the note is before the court presently. [Decided Aug. 19, 2013.]

 
TORTS
36-2-1031 Sickler v. Office of the Ocean County Prosecutor, App. Div. (per curiam) (9 pp.) While an inmate at a New Jersey correctional facility, Sickler filed a motion in the Law Division for leave to file a late notice of a claim pursuant to the Tort Claims Act against the Office of the Ocean County Prosecutor. He alleges that the Prosecutor’s Office brought false charges of attempted murder and other offenses against him, which were ultimately dismissed, and that he spent three years in pretrial custody, unable to post the high bail set on those charges. The Prosecutor’s Office now appeals as of right from the Law Division’s granting of Sickler’s motion to file a late notice of claim. Sickler filed his motion almost five months beyond the limitation period of the statute. Neither Sickler’s ignorance of the law nor his lack of access to a law library are sufficient grounds for excusing the passage of the limitation period. Because Sickler failed to show extraordinary circumstances for the delay, the appellate panel reverses. [Decided Aug. 16, 2013.]

 
36-2-1050 Salazar v. Olde Queen’s Tavern, App. Div. (per curiam) (10 pp.) In this personal injury action filed after plaintiff slipped and fell on black ice on a sidewalk adjacent to defendant-tavern, the jury found defendants were not negligent. The panel finds that the trial court erred in granting plaintiff’s motion for a new trial based on its conclusion that it was prejudicial under Gustavson to have placed the 21-year old plaintiff inside a “college bar” for 30 minutes prior to the accident. The panel holds that Gustavson does not bar evidence of a person’s mere presence in an establishment that served alcohol and that this case differed from Gustavson in that there was no evidence that plaintiff had consumed alcohol, defense counsel conceded that alcohol played no role in the case, and the judge gave clear limiting instructions that alcohol was not a factor. However, it was highly prejudicial for defendants to present evidence at trial that PSE&G had replaced the upraised part of the sidewalk where plaintiff fell where it had maintained throughout the litigation that the sidewalk had not been repaired prior to the accident and it did not disclose this information during discovery, and the judge’s curative instruction was insufficient to overcome the prejudicial impact of this evidence. Therefore, the panel affirms the grant of a new trial but for a reason different than that given by the trial court. [Decided Aug. 19, 2013.]

 
36-2-1059 Boxton v. Domingues, App. Div. (per curiam) (13 pp.) In this verbal threshold case, filed after plaintiff was rear-ended by a car driven by defendant, in which liability was stipulated, defendant appeals the jury verdict finding that plaintiff had sustained a permanent injury in the accident and awarding him $225,000. Noting that defense counsel did not object to the charge as given, the panel reviews for plain error and finds no basis for reversal, despite the failure to give the Medical Expenses charge and the court’s inclusion of future medical expenses and future earnings in the Life Expectancy charge even though they were not at issue in the case, since the charge, as a whole, was an accurate statement of the applicable law. The panel also finds that the judge did not abuse her discretion in barring evidence of plaintiff’s 13-year-old conviction on a weapons offense or by permitting Juror #6 as part of the jury selected to hear the case despite the court’s admittedly incorrect statement of the law during the sidebar colloquy with this potential juror, where counsel did not seek to strike the juror or challenge her for cause and the judge advised the juror that she and the other jurors would be instructed at the end of the case and there is no reason to think that the juror failed to follow the instructions given. [Decided Aug. 20, 2013.]

 
36-2-1060 Dolywa v. Anderson, App. Div. (per curiam) (17 pp.) In this personal injury action filed after the car in which plaintiff was driving was hit from behind by a loaded dump truck, in which the court entered a directed verdict on liability, plaintiff appeals the jury finding that she had failed to prove that she had sustained personal injury or injuries proximately caused by the accident and the denial of her motion for a new trial. The panel affirms, finding that, viewing the evidence in the light most favorable to defendants, the jury could reasonably have found that plaintiff did not sustain injuries as a result of the collision at issue since the evidence presented by the defense, through their witnesses and on cross-examination of plaintiff’s witnesses, created factual support for their contention that plaintiff was not injured in the accident and “exaggerated” her symptoms. Hence, the jury’s verdict does not shock the conscience, is not a miscarriage of justice, and the motion was properly denied. Nor did the court err in permitting the defendant radiologist to use a photographic enlargement of an MRI film as a demonstrative aid, or in permitting defendants’ orthopedics expert to give an expert opinion on the raised area on plaintiff’s neck based on a photograph taken a week before trial where plaintiff did not produce the photograph prior to its admission into evidence, or in excluding plaintiff’s physics expert from testifying regarding the force and resultant movement of the body from the accident since there was no evidence that he had expertise in biomechanics. [Decided Aug. 20, 2013.]

 
TORTS — CIVIL RIGHTS
36-2-1032 Alvarez v. Borough of Hoboken, App. Div. (per curiam) (35 pp.) Plaintiff Luz Alvarez contends the trial court erred by dismissing her tort claims against the city of Hoboken for failure to state a claim; granting summary judgment to Hoboken and dismissing plaintiff’s civil rights claims; awarding counsel fees to Hoboken’s attorney; denying counsel fees to her; and dismissing her complaint against Cira Barbaccia based on the entire controversy doctrine, res judicata and collateral estoppel. The case arose from an incident when Barbaccia exited her car and punched Alvarez in the face. Alvarez was a passenger in another car when the incident occurred. Alvarez contends that she called the police and the officers told her if she wanted to press charges, she would be arrested. The complaint does not state a cause of action in tort against Hoboken, as distinguished from its police officers, and nothing plaintiff has pleaded suggests such a cause of action. Further, plaintiff presented no evidence from which a jury could have inferred either that the officer who allegedly discouraged plaintiff from filing a complaint was a policymaker or that he acted pursuant to a municipal policy or custom. Finally, plaintiff failed to comply with the entire controversy doctrine relating to her claims against Barbaccia. The appellate panel affirms the dismissals of plaintiff’s complaints. The panel reverses the award of counsel fees which the court based on plaintiff’s failure to conduct any formal discovery and failure to pursue the case diligently. The court failed to consider all relevant factors, including the fact that Hoboken did not comply with plaintiff’s discovery requests for four years. [Decided Aug. 16, 2013.]

 
WORKERS’ COMPENSATION AND OTHER COMPENSATION SYSTEMS
39-2-1066 Donato v. Jersey City Municipal Utilities Authority, App. Div. (per curiam) (10 pp.) Petitioner appeals the denial of his occupational disease claim, contending first that the judge of compensation committed reversible error when she failed to exclude the testimony of respondent Jersey City Municipal Utilities Authority’s medical expert because the expert was compensated in excess of the statutory maximum. The appellate panel construes the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker. Thus, the limitation on chargeable fees is intended to protect petitioners. Moreover, a violation should not result in the exclusion of the report. Petitioner also contends that the judge erred when she drew an adverse inference against petitioner, who failed to produce his coronary-treating physician. Petitioner’s expert did not rule out that the X-rays he interpreted as abnormal could be the result of petitioner’s heart surgeries and acknowledged that petitioner’s shortness of breath and poor performance on the pulmonary function tests could be due to his heart disease. Given petitioner’s two-decade history of heart disease, the records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative. The appellate panel affirms the denial of petitioner’s claim. [Decided Aug. 21, 2013.]

 
FEDERAL COURT CASES
 
ADMINISTRATIVE LAW
01-7-1052 Nieves v. Commissioner of Social Security, U. S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Plaintiff, who alleges that she suffers from diabetes, diabetic retinopathy, myotonic dystrophy, depression, anxiety, hypertension, high cholesterol and dizziness, appeals the decision of the Commissioner of Social Security that she was not disabled under the Social Security Act. The court vacates the commissioner’s decision and remands for further proceedings, finding that the ALJ’s rejection of the medical evidence provided by plaintiff’s ophthalmic surgeon, Dr. Scannapien, is not supported by substantial evidence. [Filed July 22, 2013.]

 
BANKRUPTCY
42-7-1033 Bonner v. Bruno, Dist. Ct. (Cooper, U.S.D.J.) (3 pp.) Defendant Diane Tozzolo filed a bankruptcy petition on March 28, 2013, in the United States Bankruptcy Court for the District of Maryland. The filing of the Bankruptcy Petition triggered an automatic stay of this action insofar as claims are raised against Tozzolo. The court will thus stay and administratively terminate the action insofar as it has been brought against Tozzolo. The court will also stay and administratively terminate the action insofar as claims are raised against the defendant Philip Bruno Jr. Such action is taken pursuant to the court’s inherent power to control the docket, to serve the interest of judicial efficiency. The administrative termination of this action does not affect the plaintiffs’ ability to move before the Maryland Bankruptcy Court for relief from the automatic stay. Similarly, it does not affect the plaintiffs’ ability to move to reopen the action when justice so requires. [Filed July 11, 2103.]

 
42-7-1067 In re Shandar Holding Corp., Dist. Ct. (Wolfson, U.S.D.J.) (15 pp.) Appellee-creditor West Main 28 LLC, which had obtained a final judgment of foreclosure against debtor-Shandar’s property, also obtained a state court Order to Pay Additional Funds in the amount of the funds it expended post-judgment/presale to redeem tax liens on the property. Shandar, which filed for bankruptcy prior to the sheriff’s sale on the property and filed an adversary complaint against West Main seeking declaratory relief that, based on New Jersey’s merger doctrine, it was under no obligation to pay the taxes on the property that West Main advanced, appeals the Bankruptcy Court’s determination that West Main’s secured claim against Shandar properly includes the amounts in both the foreclosure judgment and the Order, arguing that the merger doctrine and Stendardo preclude West Main from including in its secured claim the amount set forth in the order. The District Court affirms, concluding that Stendardo does not apply to the facts of this case because West Main is not seeking to increase its secured claim based wholly on its own representations to the Bankruptcy Court but pursuant to a valid state court order entitling West Main to additional funds, and that the order should be considered as having the same effect, for purposes of bankruptcy proceedings, as an amendment to the foreclosure judgment. [Filed July 22, 2013.]

 
BUSINESS ENTITIES — TORTS — CONTRACTS
12-7-1068 Kenney v. M2 Worldwide, LLC, Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) This case arises from the alleged misappropriation of market analysis methods created by plaintiff. The complaint asserts: 1) tortious interference with prospective economic advantage; 2) misappropriation of trade secrets; 3) breach of contract; 4) fraud in the inducement; 5) fraud; 6) declaratory judgment; and 7) conversion. Defendants filed a motion to dismiss. The complaint alleges that defendants Michael Kalfus and Robin Kalfus are the sole members of defendant M2 Worldwide, LLC, a limited liability corporation organized under the laws of New Jersey. Defendants first argue that New Jersey law shields the owners of a LLC from personal liability for acts performed in their roles as members of a LLC. This is incorrect; a corporate officer can be held personally liable for a tort committed by the corporation when he or she is sufficiently involved in the commission of the tort. Plaintiff has pleaded sufficient facts to support viable claims against defendants for personal liability for acts performed in their roles as corporate officers. Defendants further argue that the complaint asserts only contract claims. However, the complaint does not allege a written contract and asserts most claims under tort theories. This dispute therefore does not arise out of and relate to a contract and its breach. Defendants next argue that the fraud claims fail to meet the particularity requirement of Federal Rule of Civil Procedure 9(b). The complaint pleads facts with sufficient particularity to support fraud claims against Michael but not Robin. As to the fraud claims against Robin, the motion to dismiss is granted. The motion to dismiss the complaint is otherwise denied. [Filed July 11, 2013.]

 
CIVIL PROCEDURE
07-8-1034 Brodie v. Gloucester Twp., Third Cir. (Greenaway, C.J.) (6 pp.) Finding that the District Court’s conclusion that plaintiff’s counsel could have filed a timely notice of appeal but chose not to do so was not an abuse of discretion, and that plaintiff therefore failed to show excusable neglect or good cause, the Third Circuit affirms the denial of his motion for an extension of time to file a notice of appeal under Rule 4(a)(5). Since the motion was denied, the appeal of the order disposing of the case was untimely and the court dismisses the appeal of the order for lack of jurisdiction. [Filed July 19, 2013.]

 
07-7-1035 Kinekt Design LLC v. One Moment in Time LLC, U. S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) In this action alleging infringement through sales of rings with plaintiff’s gear ring design, the court finds that plaintiff has not proven facts sufficient to establish either specific or general personal jurisdiction over defendant Halterman, One Moment in Time’s manager and registered agent, since it has not alleged any contact with the forum; or personal jurisdiction over defendant One Moment In Time since the litigation does not arise out of or relate to the 18 shipments to customers in New Jersey that defendant concedes were made; or general personal jurisdiction over defendant since plaintiff has not provided sufficient information for the court to conclude that the shipments evidence continuous and systematic contacts with New Jersey. Defendants’ motion to dismiss is granted. [Filed July 22, 2013.]

 
CIVIL RIGHTS
46-7-1036 Coles v. Carlini, Dist. Ct. (Simandle, U.S.D.J.) (31 pp.) In this 42 U.S.C. section 1983 action, plaintiffs, members of motorcycle clubs, allege that they were stopped by New Jersey State Troopers who ordered them to remove their jackets bearing “colors,” membership marks or logos for the clubs, in violation of their First, Fourth and Fourteenth Amendment rights. Plaintiffs seek partial summary judgment only on the question of whether the first amendment was violated by the troopers during their “anti-colors” speech during plaintiffs’ roadside detention. Defendants have filed a cross-motion for partial summary judgment. The court denies the parties’ cross-motions for partial summary judgment on the First Amendment claim because there is a genuine dispute of fact as to whether plaintiffs suffered an injury where they did not remove or hide their colors, and defendants are not entitled to qualified immunity on the grounds that they merely attempted to violate plaintiffs’ First Amendment rights.  Defendants’ motion for partial summary judgment is granted as to their judicial estoppel defense because bad faith may be inferred from plaintiff Cole’s and Ballinger’s nondisclosure of this litigation as a contingent asset in their bankruptcy proceedings while simultaneously pursuing the present claims for damages. Therefore, Cole and Ballinger may seek nominal damages and declaratory and injunctive relief but may not seek compensatory or punitive damages. [Filed July 22, 2013.]

 
46-7-1037 Roccisano v. Township of Franklin, Dist. Ct. (Wolfson, U.S.D.J.) (24 pp.) Defendants, Officer Nemes, Officer Smith, Township of Franklin, and Township of Franklin Police Department move for summary judgment on plaintiff’s 42 U.S.C. § 1983 claim, as well as her state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and negligent supervision, inadequate training, and negligent hiring. The claims stem from the officers’ use of allegedly excessive force in arresting plaintiff after responding to a domestic violence dispute. The court grants defendants’ motion for summary judgment on plaintiff’s claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision, inadequate training, and negligent hiring. To the extent plaintiff intended her negligence and excessive force claims to include the township defendants, the court grants summary judgment to the township defendants. The court grants the officers’ motion for summary judgment on plaintiff’s negligence claim because she failed to raise a genuine issue of material fact as to causation. The court denies the officers’ motion for summary judgment on plaintiff’s § 1983 claim because factual disputes remain as to whether the officers are entitled to qualified immunity. The court denies the officers’ motion for summary judgment on plaintiff’s punitive damages claim as a jury could find the officers acted with “reckless or callous indifference.” [Filed July 12, 2013.]

 
46-7-1069 Israelite Church of God In Jesus Christ, Inc. v. City of Hackensack, Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Previously, the Court dismissed without prejudice all claims against defendants Stephen Lo Iacono, Richard Malagiere, and Joseph Zisa, and granted plaintiff leave to file an amended complaint. Defendants move to dismiss the Third Amended Complaint (TAC) for failure to state a claim. The TAC alleges that Malagiere and Ziza are private attorneys who represented defendants the City of Hackensack and the City of Hackensack Zoning Board. Plaintiff alleges that the attorneys knew about the alleged religious discrimination against plaintiff, but failed to act to stop it, and thus colluded in it. However, the attorneys are not employees of the municipal defendant. Because the TAC alleges only that the attorneys failed to stop the statutory infractions of their clients while engaged in the practice of law, plaintiff has shown no legal basis for any claim that they are civilly liable for the statutory violations of their clients. The claims against the attorneys are dismissed. Lo Iacono, on the other hand, is alleged to be a municipal employee. The TAC seeks to hold him liable on a failure to supervise theory, alleging that he is liable for the statutory infractions of the municipal employees under his supervision. The TAC fails to plead sufficient facts to support a claim that Lo Iacono is liable for failure to supervise. The claims against Lo Iacono are dismissed. As to defendants Lo Iacono, Malagiere, and Zisa, the TAC is dismissed with prejudice. [Filed July 15, 2013.]

 
CIVIL RIGHTS — TORTS
46-7-1070 Handy v. Millville Police Dept., Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Plaintiff, stopped for riding his bicycle on the sidewalk in violation of a city ordinance, was arrested after police found an outstanding warrant for a man with a different birthday and a differently spelled first name. During a search incident to the arrest, police found a small amount of CDS and plaintiff was charged with a drug offense to which he pleaded guilty after his suppression motion was denied. The New Jersey Appellate Division found that the evidence was illegally obtained and inadmissible; the Supreme Court affirmed. Plaintiff filed suit alleging constitutional violations based on the allegedly unlawful search, false arrest, and false imprisonment. He then moved to amend his complaint to add counts for malicious prosecution in violation of 42 U.S.C. section 1983 and state and common-law malicious prosecution. The court grants defendants’ motion to dismiss, finding that the claims in the FAC are all time barred and that the motion for leave to amend must be denied because amendment would be futile since there was no favorable termination where it is undisputed that plaintiff possessed CDS and the reversal of his conviction was based solely on the suppression of evidence, and there is no dispute that there was probable cause to believe that he had committed that offense. [Filed July 19, 2013.]

 
CONSUMER PROTECTION
09-7-1071 Avram v. Samsung Electronics America, Inc., Dist. Ct. (McNulty, U.S.D.J.) (35 pp.) The Department of Energy (DOE) Energy Star program permits manufacturers of appliances to affix a label indicating that the appliance meets certain standards of energy efficiency. Such appliances, Plaintiffs allege, cost more to purchase, but supposedly save money in the long run by reducing electricity bills. Lynne Avram and Margaret Lark, putative class action plaintiffs in these consolidated actions, each bought refrigerator model RF26VAB, manufactured by defendant Samsung Electronics America Inc., from defendant Lowe’s Home Centers Inc. At the time of purchase, the refrigerators bore the Energy Star label. However, DOE thereafter determined that this refrigerator model did not meet the Energy Star program’s requirements. Avram and Lark allege that they have not received what they paid for and assert causes of action for breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, violation of the Maryland and New Jersey consumer fraud statutes, and unjust enrichment. Samsung and Lowe’s move to dismiss. Defendants argue that the warranty claims are pre-empted by the Energy Policy and Conservation Act and that the complaints’ allegations are otherwise insufficient as a matter of law. The court dismisses Avram’s claim of breach of the implied warranty of merchantability against Samsung, the claims of violation of the state consumer fraud statutes; and the unjust enrichment causes of action against Samsung. The rest of the claims survive. [Filed July 11, 2013.]

 
CONTRACTS
11-7-1024 Hunter Roberts Construction Group, LLC v. J. Rihl, Inc., Dist. Ct. (Hillman, U.S.D.J.) (11 pp.) This case involves claims that subcontractors failed to perform work and pay labor costs, materials, and union dues on construction projects. The individual defendants move to dismiss plaintiff’s claims against them. Plaintiff makes allegations against all defendants collectively, without making any allegations specifically as to the individual defendants. Plaintiff alleges that “Defendants” or “Costa and City Mechanical” acted or failed to act, resulting in contract breaches, fraud, and RICO violations. Other than naming the individual defendants in the caption and in the listing of the parties, the complaint fails to articulate the violative conduct allegedly perpetrated by the individual defendants, only naming them as principals of Costa and City Mechanical. To hold a corporate officer personally liable for a tort committed by the corporation, he must be sufficiently involved in the commission of the tort. Without any factual allegations, the court cannot determine whether the individual defendants were sufficiently involved in the torts alleged by plaintiff so that plaintiff has stated a plausible claim for relief. The court grants the individual defendants’ motion to dismiss without prejudice. [Filed July 9, 2013.]

 
11-7-1025 United States of America v. APS Contracting, Inc., Dist. Ct. (Williams, U.S.M.J.) (10 pp.) Plaintiff filed a complaint against defendants APS Contracting, Inc., Fidelity and Deposit Company of Maryland, and A.C.C. Construction, Limited Liability Company. Plaintiff alleges that ACC entered into a subcontract with plaintiff under which plaintiff agreed to furnish a portion of the labor and material required for construction of a Combined Maintenance Facility at the Fort Dix United States Army Installation, plaintiff performed the work required under the contract, and ACC failed to pay plaintiff as agreed under the contract. Plaintiff sets forth claims for breach of contract and violations of the Prompt Payment Act. The court granted plaintiff’s motion for final judgment by default, but reserved on damages. Here the court enters judgment in plaintiff’s favor against ACC in the amount of $84,786.12. Plaintiff’s request for attorney’s fees is denied without prejudice. [Filed July 10, 2013.]

 
11-7-1038 BK Entertainment Group Inc. v. Bendeth, Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) In this action seeking payment of commissions on royalties and other revenue defendant received in connection with the sales of records he produced during the time plaintiff served as his manager, and asserting claims of breach of contract and unjust enrichment, the court applies California law to the breach of contract claim because the written agreement that plaintiff claims defendant orally agreed to contains a choice of law provision that the agreement will be construed and interpreted under California laws. The court denies defendant’s motion for summary judgment on the breach of contract claim, concluding that the contract is not barred by the California statute of frauds because, inter alia, since both parties had the right to terminate the contract with 30 days’ notice, it could have terminated before plaintiff performed any work that would have triggered defendant’s duty to pay a commission in perpetuity. Applying New Jersey law, the court grants defendant’s motion for summary judgment on the unjust enrichment claim because BK has failed to offer sufficient evidence for a jury to determine the reasonable value of its services. [Filed July 22, 2013.]

 
11-7-1039 StrikeForce Technologies, Inc. v. WhiteSky, Inc., Dist. Ct. (Chesler, U.S.D.J.) (19 pp.) This case arises out of a Software License and Development Agreement between StrikeForce Technologies Inc. and WhiteSky Inc., a Delaware company. The complaint asserts claims for breach of contract, misappropriation of trade secrets under the New Jersey Trade Secrets Act, conversion, promissory estoppel and unjust enrichment, and for injunctive relief. WhiteSky moves for dismissal for lack of personal jurisdiction and improper venue, and also for failure to state a claim upon which relief may be granted. The court finds StrikeForce has carried its burden of demonstrating specific jurisdiction. In addition to WhiteSky’s minimum contacts with New Jersey, the causes of action arise out of WhiteSky’s forum-related activities, that is, its connection to New Jersey and deliberate affiliation with this state through the creation of the business relationship with StrikeForce and course of dealing under the agreement. The court finds that WhiteSky cannot claim surprise or unfairness at having to defend itself in this foreign forum, and thus the exercise of specific personal jurisdiction comports with principles of fair play and substantial justice. It follows that dismissal for improper venue is not warranted. The court dismisses without prejudice the breach of contract claim insofar as it is based on the alleged violation of the agreement’s prohibition on unauthorized use of trade secrets and intellectual property and on the disclosure of such matters. The court dismisses the New Jersey Trade Secrets Act claim without prejudice. The causes of action for conversion and injunctive relief are dismissed. The remainder of the motion to dismiss is denied. [Filed July 11, 2013.]

 
11-7-1062 2000 Clements Bridge LLC v. OfficeMax North America, Inc., U. S. Dist. Ct. (Irenas, S.U.S.D.J.) (28 pp.) In this action alleging that defendant, a tenant in the shopping center owned by plaintiff, breached the terms of the lease, in which the court has already found that defendant did breach the lease and granted summary judgment to plaintiff on that claim, plaintiff now moves for summary judgment on damages, attorney fees and legal expenses. Looking to the provisions of the parties’ lease, the court finds that plaintiff elected to re-enter, retake, and relet the property and thus, that Article 35, which limits the parties’ liability after the lease is terminated, does not apply and it grants plaintiff’s motion in part. Summary judgment is granted in favor of defendant with respect to the Commission Damages in part, Construction Allowance Damages, prelitigation attorney fees, and lease-negotiation attorney fees. Summary judgment is granted in favor of Clements Bridge in all other respects. Clements Bridge is awarded a total of $1,613,421.99, with $671,056.07 subject to the assessment of prejudgment interest at a rate of 6 percent, and $622,700.33 subject to discount to present value at a rate of 6 percent. [Filed July 23, 2013.]

 
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-1026 Safdieh v. AFNI Inc., Dist. Ct. (Wolfson, U.S.D.J.) (7 pp.) In this action alleging that AFNI violated the Fair Debt Collection Practices Act by engaging in abusive and harassing tactics when collecting a debt by telling plaintiff that satisfaction of the alleged debt would be better for his credit report, the court grants defendant’s motion to dismiss, finding that the statement alone cannot be perceived as oppressive and the complaint is devoid of any other allegations as to how defendant’s use of such a statement was unfair or unconscionable, and that the defendant’s use of such a statement does not constitute harassment or abuse. [Filed July 18, 2013.]

 
15-7-1040 Lomax v. Meracord LLC, Dist. Ct. (Chesler, U.S.D.J.) (9 pp.) Plaintiff, who had contracted with P&E Solutions for debt settlement services, filed this action asserting that defendant, with whom she separately contracted for payment processing services — debiting her payments to P&E from her bank account, placing the money into a trust account, and disbursing it to creditors — violated New Jersey law by acting as a debt adjuster without the required license to do so and by charging unauthorized fees and fees in excess of the amount permitted by law, in violation of the New Jersey Debt Adjustment and Credit Counseling Act, the New Jersey Consumer Fraud Act, and the New Jersey Truth in Consumer Contract, Warranty and Notice Act. The court denies defendant’s motion to stay the litigation and compel arbitration, finding that its contract with plaintiff does not contain an arbitration provision, and while the contract between plaintiff and P&E does, defendant is not entitled to compel arbitration based on that provision because it is not a signatory to that agreement and plaintiff’s legal theories, factual allegations and claims against defendant are separate and distinct from the P&E contract and P&E’s actions and plaintiff is thus not equitably estopped from resisting arbitration . [Filed July 22, 2013.]

 
CRIMINAL LAW — CORRECTIONS
14-7-1028 Jordan v. Hastings, Dist. Ct. (Thompson, U.S.D.J.) (11 pp.) Plaintiff, a state prison inmate, alleges that he was beaten by correction officers in retaliation for his having filed a complaint against a county corrections officer while he was incarcerated in the county. The court construes the complaint as attempting to assert claims for excessive use of force in violation of the Eighth Amendment, retaliation in violation of the Fourteenth Amendment due process clause, and failure to train and supervise, and seeking injunctive relief and money damages. The court holds that the excessive force claim may proceed against several officers, that all other claims are dismissed pursuant to 28 U.S.C. sections 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim. Defendant is given leave to file an amended complaint. [Filed July 10, 2013.]

 
INSURANCE LAW
23-7-1027 The Travelers Property Casualty Company of America v. USA Container Co., Inc., Dist. Ct. (Linares, U.S.D.J.) (17 pp.) This action arises from an insurance coverage dispute between USA Container and its insurer, Travelers. At issue is whether USA Container is entitled to coverage for damages it paid to nonparty Meelunie B.V./Amsterdam as a result of a settlement reached between these entities in another litigation involving claims for breach of contract and negligence. Travelers filed a motion for summary judgment. USA Container filed a motion for partial summary judgment. As USA Container has established that it seeks coverage for “property damage” that was “caused by an occurrence,” the court holds that USA Container’s claim falls within the basic coverage provisions of the CGL Policy. Further, Travelers has not met its burden of establishing that any of the exclusions in the CGL Policy apply. Travelers’ motion is denied and USA Container’s motion is granted. [Filed July 8, 2013.]

 
LABOR AND EMPLOYMENT
25-8-1063 Freeman v. Middle Twp. Bd. of Educa., Third Cir. (per curiam) (6 pp.) Pro se appellant, a school bus driver in Middle Township who accused defendants of violating her rights in connection with a random workplace drug and alcohol test and whose refusal to take the test led ultimately to her termination, appeals from the District Court’s grant of summary judgment in favor of the remaining defendants. The Third Circuit affirms, declining to consider her argument that the township and its entities are not employers operating in commerce and thus not governed by certain United States Department of Transportation regulations, including the drug-testing regulations promulgated in the wake of the Omnibus Transportation Testing Act of 1991, because the argument was not raised below; noting there is no private cause of action available to aggrieved employees for a violation of the procedural protections of the federal drug-testing regime and that the regulations seem to contemplate off-duty testing; holding that the District Court properly analyzed the state and federal constitutional dimensions of plaintiff’s claim that the after-hours testing violated her Fourth Amendment rights under the special tests test and correctly concluded that neither the alleged violations of protocol nor the testing procedure violated the Fourth Amendment. [Filed June 28, 2013.]

 
25-7-1064 Jelks v. Newark Community Healthcare Center, U. S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) Defendants’ motion to dismiss this action alleging that defendants violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act in connection with her termination is granted in part and denied in part. The court denies the motion to dismiss the Title VII and ADEA claims on statute of limitations grounds, finding that where plaintiff received the EEOC’s right to sue letter five months after she received its final determination letter and filed her complaint within 90 days of receiving the right to sue letter, her complaint was not untimely. Although plaintiff did not expressly assert an EPA claim, the court construes her claim of a failure to pay earned vacation time and personal time as an EPA claim and grants the motion to dismiss because plaintiff has failed to make allegations to support a plausible inference that defendants willfully violated the EPA and thus failed to raising her right to relief above the speculative level. The Title VII and ADEA claims against NCHC’s Director of Human Resources and plaintiff’s supervisor are dismissed with prejudice because they cannot be held individually liable under Title VII or the ADEA. [Filed July 23, 2013.]

 
25-7-1072 Brown-Marshall v. Roche Diagnostics Corp., U. S. Dist. Ct. (Bumb, U.S.D.J.) (19 pp.) In this action alleging that plaintiff’s termination was motivated by age and race and was in retaliation for, inter alia, plaintiff’s earlier complaints of discriminatory treatment by her supervisor, the court grants in part defendants’ motion to dismiss. The court denies the motion to dismiss based on judicial estoppel because, while a failure to disclose a claim to a bankruptcy court may form a basis to judicially estop a subsequent civil suit based on that claim, judicial estoppel is unwarranted here because the law is unsettled as to whether plaintiff’s claims, which accrued postconfirmation when she was terminated, were subject to mandatory disclosure. Defendants’ motion to dismiss the race and age discrimination claims is denied because plaintiff, a 52-year-old African-American woman who had been performing her job duties before her termination, has made a prima facie showing of discrimination where she was replaced by a white woman who was four years younger, and because she has offered evidence to show that the legitimate basis for her termination — job performance issues — was pretextual. The motion to dismiss is granted on the retaliation claim because plaintiff has failed to show a causal connection between protected activity and her termination. The motion is denied on the claim that plaintiff’s supervisor aided and abetted in light of a recent New Jersey Appellate Division case holding that a supervisor can be held liable for aiding and abetting his employer’s wrongful conduct, even when the only bad conduct at issue is his own conduct. The court denies the motion to dismiss the punitive damages claim because it is premature. [Filed July 19, 2013.]

 
LABOR AND EMPLOYMENT — DISABILITY DISCRIMINATION
25-7-1041 Jenkins v. Knowledge Learning Corporation, Dist. Ct. (Rodriguez, U.S.D.J.) (12 pp.) After she was terminated from her employment at a daycare facility, plaintiff filed a complaint against her former employer, asserting claims under the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). Plaintiff was terminated within three months of her questioning whether disciplinary action was due to her age, followed by an EEOC charge. The court finds there are genuine issues of material fact as to whether defendant’s proffered reason for plaintiff’s termination was pretextual. The court finds there is nothing in the record to support an inference that plaintiff was terminated in retaliation for requesting an accommodation of not sitting on the floor due to her back injury where plaintiff was cleared to return to work without any restrictions after surgery. Summary judgment is granted on the wrongful termination in violation of the ADA in retaliation for requesting an accommodation. Summary judgment is denied as to the counts alleging wrongful termination due to age discrimination and in retaliation for complaining about age discrimination, violations of the ADEA. [Filed July 10, 2013.]

 
LABOR AND EMPLOYMENT — WAGES AND HOURS
25-7-1042 Afsur v. Riya Chutney Manor LLC, Dist. Ct. (Pisano, U.S.D.J.) (6 pp.) Plaintiff’s complaint alleges that defendants violated the Fair Labor Standards Act (FLSA) and the New Jersey State Wage and Hour Law, by failing to pay plaintiff (and others similarly situated) the prevailing minimum wage and overtime required by law. Plaintiff purports to bring this case on behalf of himself and others similarly situated and filed the instant motion seeking conditional certification of the case as a representative collective action, pursuant to the FLSA. Plaintiff also seeks court approval of a proposed FLSA opt-in notice, as well as discovery regarding potential class members. Defendants do not oppose the relief sought. The Court finds this case should be conditionally certified. To establish that collective action members are similarly situated at this stage, plaintiffs merely need to show “a modest factual nexus between their situation and that of the proposed class members.” Plaintiff and all members of the putative class were subject to the same employment practices. The members of the putative class members are other employees of defendants that performed the same type of work as plaintiff did and were compensated in a similar fashion. Plaintiff has demonstrated that he is similarly situated to other class members and the case shall be conditionally certified. [Filed July 11, 2013.]

 
 

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