Oct. 31 to Nov. 6, 2013

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW—CIVIL SERVICE COMMISSION
01-2-1829 In the Matter of King, App. Div. (per curiam) (22 pp.) King appeals from the commission’s order removing him from office as a police corporal in the Long Branch Policy Department following its substantiation of various charges arising out of his preparation of a false accident report to intentionally favor an acquaintance. The panel affirms, finding that the commission’s findings of fact are supported by substantial credible evidence and that the administrative law judge and the commission relied on sufficient circumstantial evidence to conclude that King acted intentionally to favor his acquaintance in preparing his report. Further, while the panel disagrees with the ALJ that the acquaintance was solely at fault for the accident, and finds that both drivers could have been charged with motor vehicle violations, it holds that the allocation of responsibility to both drivers does not undermine the ALJ’s findings that King’s actions were intended to favor his friend and convey a false picture of what happened. The panel also finds that King failed to establish that the commission acted arbitrarily, capriciously or unreasonably in imposing the penalty of removal. [Decided Nov. 1, 2013.]
 
01-2-1830 In the Matter of Jackson, Hudson County, App. Div. (per curiam) (14 pp.) Appellant, a Hudson County corrections officer, appeals from the commission’s imposition of a 10-day suspension for failure to notify the Hudson County Department of Correction’s Internal Affairs Division that her driver’s license had been suspended. The panel reverses, finding that the commission’s decision was arbitrary, capricious and unreasonable in light of the ALJ’s determination, which the commission accepted, that appellant testified credibly that she was not aware that she had received a parking ticket or that her license had been suspended for failure to pay the ticket until she received the disciplinary charge and that on receiving the charge, she went immediately to DMV, paid the ticket, and her license was restored. The panel finds that it is patently unfair to punish appellant for something that she was not aware of and which she could not have prevented. The panel also finds that the commission could not impose the sanction based on the license suspension since appellant was not charged with not having a license. [Decided Nov. 1, 2013.]
 
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-1879 Sovereign Bank v. Yang, App. Div. (per curiam) (7 pp.) On March 27, 2006, plaintiff Sovereign Bank commenced this collection action seeking to recover $24,513.22 due from defendant on a business loan. Following service of the complaint, defendant entered into a payment arrangement and the suit was administratively dismissed. After defendant ceased making payments, plaintiff’s motion to reinstate its complaint was granted. Default judgment was entered against defendant on May 28, 2010. In June 2012, plaintiff levied against defendant’s bank account, and the court thereafter signed a turnover order. Defendant did not oppose these applications, and did not move to vacate the default judgment until July 10, 2012, some two years after its entry. The judge denied defendant’s motion to vacate the default judgment, finding that it was untimely, and defendant failed to establish excusable neglect. The judge also denied reconsideration. The appellate panel affirms, finding defendant failed to demonstrate that he was entitled to relief under Rule 4:50-1. The judge correctly found that defendant had been properly served with the complaint, was on notice of the litigation, entered into a payment arrangement with plaintiff, and that his actions were inconsistent with due diligence or reasonable excuse. Defendant argues on appeal that the entire debt has now been fully satisfied. In affirming the trial court’s orders, the panel does so without prejudice to defendant’s right to file a motion for issuance of a warrant of satisfaction based on that claim. [Decided Nov. 6, 2013.]
 
CRIMINAL LAW
14-2-1855 State v. Freeman, App. Div. (per curiam) (19 pp.) Defendant appeals from his conviction of simple assault with a magnifying glass arising out of an altercation in which he allegedly threw the magnifying glass at his adult brother. The panel affirms in part and denies in part, finding that (1) the brother’s mention of his myeloma, contrary to the court’s in limine determination to bar mention of his disease, did not deny defendant of a fair trial where the court promptly ordered the jury to disregard the testimony identifying the brother’s illness and instructed that it could consider only the evidence of his physical condition, and that the prosecutor’s question that prompted the response was not clearly and unmistakenly improper; (2) while there was insufficient evidence for the jury to find, beyond a reasonable doubt, that the magnifying glass was a deadly weapon, whether the court erred in denying defendant’s motion to acquit on the charge of aggravated assault with a deadly weapon was rendered moot when the jury acquitted defendant of the charge; (3) there is no basis for concluding that overcharging aggravated assault with a deadly weapon prejudiced defendant in the jury’s consideration of the lesser-included charge of simple assault; (4) the court erred in denying defendant’s motion for acquittal as to the charge that his possession of the magnifying glass was unlawful possession of a weapon since the glass did not possess inherent properties that made it readily capable of killing or seriously injuring another, but this does not warrant reversal of defendant’s conviction since the jury found defendant guilty based on his possession of a hammer as well as the glass. However, the matter is remanded for reconsideration of the sentence since defendant unlawfully possessed one weapon, not two. [Decided Nov. 4, 2013.]
 
CRIMINAL LAW—CORRECTIONS
14-2-1836 Jenkins v. New Jersey Dep’t of Corrections, App. Div. (per curiam) (5 pp.) The panel affirms the DOC’s denial of plaintiff-inmate’s request for a rule exemption to allow him to gain full minimum custody. Noting that the inmate bears the burden of showing than an exemption is warranted, the panel says that even if it assumes that Jenkins was not found guilty of a parole violation in connection with his arson conviction, as cited by the DOC, he acknowledges that he has been involved in at least one institutional infraction and thus the DOC was not arbitrary, capricious or unreasonable in finding that he did not show that he should be granted an exemption from the prohibition of full minimum status for an inmate convicted of arson. [Decided Nov. 1, 2013.]
 
EDUCATION LAW
16-2-1847 You and Me Preschool v. New Jersey Department of Education, Division of Administration and Finance, App. Div. (per curiam) (7 pp.) Petitioner You and Me Preschool is a private school for students with disabilities (PSSD), located on the grounds of the JFK Medical Center in Edison. Since 1992, petitioner has been providing instruction for autistic children in preschool through the third grade. Any PSSD that came into existence after Aug. 16, 2004, is required to have a minimum average daily enrollment (ADE) of 24 public school placement students in a school year. Those PSSDs in existence as of Aug. 16, 2004, such as petitioner, are required to have a minimum ADE of 16 public school placement students in a school year. During the 2008-09 school year, the ADE of petitioner fell to 14.3538 students and continued its downward trend over the next three years. The ADE was 9.8860 during the 2011-12 school year. At the end of the 2011-12 school year, petitioner sought a waiver of the minimum ADE requirement from the acting commissioner of respondent Department of Education. The acting commissioner denied the request. The appellate panel reverses, finding the acting director did not set forth, and an examination of the record does not reveal, the reasons for the denial of the waiver request. [Decided Nov. 4, 2013.]
 
16-2-1880 Lovett v. Flemington-Raritan Regional Bd. of Educa., App. Div. (per curiam) (28 pp.) Plaintiff, a 57-year-old tenured math and science teacher who resigned in the face of a meeting with the principal regarding potential misconduct, appeals from the summary judgment dismissal of this action alleging, inter alia, age discrimination in violation of the LAD. The panel affirms, finding that plaintiff failed to establish a prima facie case of age discrimination since the meeting called by the principal was fully justified due to legitimate and genuine safety concerns engendered by plaintiff’s conduct, the mere mention of possible discipline at the meeting was not an adverse employment action since there was no actual change to plaintiff’s employment status at that point, and nothing in the facts and circumstances surrounding the meeting can reasonably be said to constitute conduct so outrageous as to amount to a constructive discharge. Further, plaintiff has not produced evidence that age, rather than or in addition to financial concerns, motivated defendants to compel her resignation. The panel affirms the dismissal of plaintiff’s claims of civil conspiracy, wrongful termination, breach of the covenant of good faith and fair dealing, negligence, interference with expected economic advantage, negligent and intentional infliction of emotional distress, constructive discharge and tortious interference with expected contractual relations, because plaintiff failed to provide defendants with tort claims notice. Finally, the panel finds no abuse of discretion in the motion court’s denial of leave to file an amendment because the new claims plaintiff sought to include are all derivative of her age discrimination cause of action and equally dependent on the same facts found insufficient to sustain her LAD complaint. [Decided Nov. 6, 2013.]
 
FAMILY LAW
20-2-1818 White v. Douglas, App. Div. (per curiam) (11 pp.) Defendant father appeals from a Family Part order relinquishing the New Jersey court’s jurisdiction with respect to custody and child support. The appellate panel concludes that the order was entered in error, in the middle of an as-yet-undecided custody dispute that included plaintiff mother’s application to permanently relocate the parties’ child to Georgia. Under the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, New Jersey’s exclusive continuing jurisdiction over the child custody determination continues until neither the child nor the parents “have a significant connection with this State.” Here, in order to move the child to Georgia over defendant’s objection, plaintiff needed the court’s approval of her Baures application. Until the New Jersey court decided the Baures application, the child’s residence for child custody purposes was not Georgia; it was New Jersey. Further, although the father moved to Pennsylvania, as a practical matter, the child and the father still had a significant connection to New Jersey because the father’s visits with the child had always been at his parents’ home in New Jersey and the father works in New Jersey. Accordingly, the panel reverses and remands to the Family Part. [Decided Oct. 31, 2013.]
 
INSURANCE LAW
23-2-1819 Shah v. Valerio-Gomez, App. Div. (per curiam) (6 pp.) Plaintiff and her son, who were struck by a car while walking toward their parked vehicle, which was owned and insured by her employer, appeal from the grant of summary judgment to Phoenix Insurance Company in this action seeking underinsured-motorist benefits under a contract of insurance Phoenix had issued to her employer. The panel affirms, finding that the policy language is plain and unambiguous and that the only “insured” on the declaration page was the employer, a corporation, and, therefore, for plaintiff and her son to have coverage, they had to be “occupying” the vehicle and since they were one or two car lengths away when they were struck, they were not “occupying” the vehicle, and plaintiff’s action in activating the keyless remote prior to being struck did not bring her within the definition of “occupying” in the policy. [Decided Oct. 31, 2013.]
 
23-2-1848 The Association of New Jersey Chiropractors Inc. v. Horizon Healthcare Services Inc., App. Div. (Ostrer, J.A.D.) (28 pp.) This appeal involves a challenge to a “privileging policy” promulgated by Horizon Blue Cross Blue Shield of New Jersey. The policy limited the kinds of diagnostic imaging services, including X-rays, that Horizon would reimburse if performed in an office setting by members of its participating provider network. Two chiropractors, who are members of the Horizon network, and a nonprofit association of chiropractors, challenged the policy. They alleged Horizon’s privileging policy violates N.J.S.A. 17B:27-51.1, which requires group health policies to cover services performed by chiropractors if the services are reimbursed when performed by other health-care professionals. Plaintiffs also alleged a breach of contract and the covenant of good faith and fair dealing, and a violation of the monopolization provision of the New Jersey Antitrust Act. Defendant Care Core National is a benefit management firm that assisted Horizon in developing the policy. The trial court granted defendants summary judgment and dismissed plaintiffs’ amended complaint with prejudice. The appellate panel affirms, finding the court correctly dismissed the count alleging a violation of N.J.S.A. 17B:27-51.1 because the statute does not confer a private right of action. The court also appropriately found no breach of contract, as the provider agreement authorized Horizon to determine covered services. The court correctly held that plaintiffs failed to allege sufficient facts to support their antitrust claims. The panel finds the count alleging a violation of N.J.S.A. 17B:27-51.1 by Horizon should be transferred to the Department of Banking and Insurance and remands to the Law Division for the purpose of entering a transfer order. [Decided Nov. 4, 2013.]
 
23-2-1849 New Jersey Intergovernmental Insurance Fund v. Sarokis, App. Div. (Fuentes, P.J.A.D.) (10 pp.) Plaintiff New Jersey Intergovernmental Insurance Fund (NJIIF) filed a small-claims complaint against defendant Richard Sarokis. This is a subrogation claim for workers’ compensation benefits paid to plaintiff’s insured, Freehold Police Officer Raymond Piccolini. The trial judge held plaintiff did not have a cognizable claim because Piccolini could have recovered his medical expenses from his own automobile insurance carrier under the policy’s personal injury protection (PIP) coverage. Piccolini stopped Sarokis’ car based on an alleged Title 39 infraction. Sarokis had a Chihuahua dog on his lap. Piccolini asked Sarokis to produce his driving credentials. As Piccolini reached to receive Sarokis’ credentials, the dog bit him on his hand. On appeal, NJIIF argues Sarokis should not be subject to the limitations of the No-Fault Act because there was no “substantial nexus” between Piccolini’s injury and the use of an automobile. The appellate panel disagrees and affirms. It is foreseeable that a dog is capable of biting someone who approaches a car, with its driver-side window open, while the dog is being held on the driver’s lap, within a foot or two of the person standing outside of the vehicle. An injured insured is precluded from suing the tortfeasor for the amount of PIP benefits received from his own auto-insurance carrier; such benefits do not constitute “uncompensated” expenses and cannot be recovered from the tortfeasor under N.J.S.A. 39:6A-12. [Decided Nov. 4, 2013.]
 
LABOR AND EMPLOYMENT
25-2-1831 Kackos v. Board of Trustees, Public Employees’ Retirement System, App. Div. (per curiam) (8 pp.) Kackos appeals from a final determination of the board of trustees of the Public Employees’ Retirement System (PERS), finding that he was not eligible for accidental disability retirement benefits. Kackos argues that his post-traumatic stress disorder (PTSD) stemming from the Sept. 11, 2001, terrorist attack meets the criteria for an accidental disability pension; his disability resulted from the direct personal experience of witnessing the attack on the World Trade Center (WTC), which involved a threatened serious injury to himself and thousands of victims who were ultimately harmed; and he experienced the traumatic attack while performing his duties as toll collector assigned to the New Jersey Turnpike’s Exit 14B toll booth. The appellate panel affirms the board’s decision finding Kackos is not eligible for accidental disability retirement benefits. Kackos witnessed the terrorist attack on the WTC towers but he viewed those events from his toll booth in Jersey City. Kackos was not struck with any debris and he did not suffer any physical trauma. Since Kackos observed the attacks from a distance, he was not faced with any direct threat of death or serious injury, and he did not witness a similarly serious threat to the physical integrity of any person in his physical proximity. Therefore, the ALJ and the board reasonably determined that, while Kackos may be suffering from PTSD, his condition was not the result of “direct personal experience.” Kackos’s claim does not meet the traumatic-event standard because the performance of his job duties played no role in the events of that day. [Decided Nov. 1, 2013.]
 
LAND USE AND PLANNING
26-2-1881 100 Paterson Realty, L.L.C. v. Hoboken, App. Div. (per curiam) (18 pp.) Plaintiff, the owner of a building in Hoboken, appeals from the dismissal of his inverse condemnation action. The panel affirms, finding that none of plaintiff’s allegations establishes that there has been a compensable taking at this time and the identification of the property by the city as possible parkland did not prevent plaintiff from using or developing the property. Plaintiff’s allegation that it cannot build its project because of a lack of financing does not rise to the level of a taking as lost economic opportunities allegedly due to pretaking government activity do not constitute a compensable taking under the federal or state constitutions. Further, plaintiff has failed to establish that the beneficial use of the property has been destroyed by its designation as potential parkland. [Decided Nov. 6, 2013.]
 
LAND USE AND PLANNING—VARIANCES
26-2-1820 Price v. 636 37th Street, L.L.C., App. Div. (Hayden, J.A.D.) (12 pp.) Plaintiff filed a complaint in the Law Division challenging a decision of defendant Union City Zoning Board of Adjustment to grant certain variances to defendant 636 37th Street, L.L.C. (the applicant). Plaintiff appeals from an order dismissing his complaint with prejudice. The applicant owned the property located at 636 37th Street, Union City. The two-and-one-half-story structure was built in 1913 as a four-family dwelling. An additional two apartments were illegally constructed in the basement, which did not comply with the housing codes. The property has been used and taxed as a six-unit apartment for more than 30 years. It is located in the R-Zone in Union City, which permits one- through four-unit family dwellings. The appellate panel rejects plaintiff’s argument that because the proposed structure is not a garden apartment under Union City’s ordinance, the applicant needed a prohibited-use variance, not a conditional-use variance. Although both are “special reasons” variances, a prohibited-use variance allows the applicant to engage in a use not permitted in a zone, while the conditional-use variance allows the applicant to engage in a use permitted under certain conditions, despite failure to completely meet those conditions. The critical question in determining which variance should be sought is the nature of the deviation from the zoning ordinance. Here, the defining feature of a garden apartment is the height of the structure and its use as a residential building with a limited number of apartments. The applicant’s building meets these basic features. The fact that the property does not meet the ordinance’s peripheral specifications for a garden apartment simply highlights the need for a conditional-use variance. [Decided Oct. 31, 2013.]
 
LEGAL PROFESSION—LEGAL MALPRACTICE
04-2-1850 Jiorle v. Maenza, App. Div. (per curiam) (13 pp.) Here, where plaintiff filed an initial action in which defendant was not named as a party but was an important witness, and then, after defendant’s deposition in that matter, filed a supplemental certification under Rule 4:5-1 indicating that defendant might be liable on the basis of the same transactional facts but that he was not joining him in the action and was reserving the right to file a separate action against defendant, and plaintiff then filed this legal-malpractice action against defendant, plaintiff appeals from the dismissal of this action on the basis of the entire-controversy doctrine and Rule 4:5-1(b)(2) and the denial of his motion for partial summary judgment. The panel reverses and remands the order dismissing plaintiff’s complaint, finding that dismissal was improper because plaintiff complied with the continuing obligation to amend his original Rule 4:5-1(b)(2) certification. The panel affirms the denial of plaintiff’s motion for partial summary judgment because the judge did not consider the merits of the motion since he believed it to be moot. [Decided Nov. 4, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-4-1833 Unfair Share Lake Arrowhead 2010 Inc. v. Lake Arrowhead Club Inc., Ch. Div., General Equity Part, Morris Co. (Hansbury, P.J.Ch.) (19 pp.) In 2009, defendant Lake Arrowhead Club Inc. (LAC) determined to impose an assessment of $324 per year on all 242 residents of the Lake Arrowhead Community to fulfill the club’s obligation to maintain various amenities, including the clubhouse, roads, grounds, beaches and docks. Those who chose to belong to the Lake Arrowhead Club itself were to pay a higher amount to cover expenses limited to the club itself but all members were to be obligated to pay the “fair share easement assessment” of $324. Plaintiff Unfair Share Lake Arrowhead 2010 Inc., which was incorporated in 2010 and consists of 73 property owners within the Lake Arrowhead community, filed a complaint challenging the assessment. The parties agreed to divide the litigation into two phases. The first phase included the conduct of defendant—i.e., did defendant abandon or relinquish any right to impose assessments on non-LAC members? The second phase was to focus on the conduct of plaintiff’s members—did plaintiff rely on the fact that the club membership was initially optional? The court concludes, as a matter of law, that the reliance claim was not plead and plaintiff as a corporation created in 2010 has no standing to bring such claim, which is based on conduct that is uniquely related to the party who relied and the individuals are not parties to this litigation. The court also concludes that defendant did not abandon, relinquish or give up its rights to impose assessments. The LAC has the right to change the rules and regulations to impose the assessments on all those within the community with the understanding that with the duty of payment came the right to use the common facilities. The only remaining issue in this case is the count seeking financial information and a review of the precise assessment. [Decided Nov. 1, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE—MORTGAGE FORECLOSURE
34-2-1821 Wells Fargo Bank, N.A. v. Garner, App. Div. (per curiam) (14 pp.) Defendant appeals from the denial of her postjudgment presheriff’s sale motions to vacate the judgment of foreclosure and dismiss the complaint, arguing that plaintiff lacked standing to file the foreclosure action because it did not own the note and mortgage on the date it filed the complaint, and for the same reason, that the notice of intent to foreclosure was improperly issued by plaintiff. The panel affirms, concluding that the judge did not abuse her discretion by denying defendant’s motion here, where defendant offered no support to justify the almost two-year delay in advancing her challenge to plaintiff’s standing to foreclose and she has failed to show that she is entitled to relief pursuant to any section of Rule 4:50-1. The panel does briefly address whether plaintiff properly had standing to foreclose and finds that the assignment was executed prior to the filing of the foreclosure complaint and the fact that the assignment was not recorded until the following month does not affect the validity of the assignment, which was effective on the date executed, and that the record contains sufficient support for plaintiff’s assertion that it owned the debt and properly issued the notice of intent to foreclose. [Decided Oct. 31, 2013.]
 
TAXATION
35-2-1852 Chai Center for Living Judaism v. Millburn Twp., App. Div. (per curiam) (4 pp.) Defendant-township appeals from the Tax Court order granting plaintiff a property tax exemption for the 2010 and 2011 tax years pursuant to N.J.S.A. 54:4-3.6. The panel affirms, holding that although the township and the center have been engaged in an ongoing zoning dispute over the use of the property as a synagogue, there was absolutely no factual dispute on the record before the Tax Court that the center was a nonprofit religious corporation and that the property was being used as a synagogue, that a religious organization’s entitlement to a tax exemption for its house of worship does not depend on whether the property is being used in a manner that complies with the local zoning ordinance, and that the Tax Court was not the proper forum in which to purse the township’s continuing zoning dispute with the center. [Decided Nov. 4, 2013.]
 
35-5-1853 Weissman v. Director, Division of Taxation, Tax Ct. (DeAlmedia, J.T.C.) (20 pp.) Plaintiff challenges defendant director of the Division of Taxation’s final determination declining to accept plaintiff’s amended 1994 New Jersey gross income tax return. Defendant filed a motion for summary judgment. In 1994, plaintiff was a resident of New Jersey and a partner in a series of related limited partnerships that held interests in real property in New Jersey. Plaintiff’s 1994 New Jersey gross income tax liability is based, in part, on income attributed to him by the partnerships and a trust as a result of the partnerships’ disposition of real property in 1994. Plaintiff’s original return reported plaintiff’s taxable partnership income, as stated on the partnerships’ K-1 returns. Plaintiff’s amended 1994 return was not accepted by the director because plaintiff did not submit amended K-1 returns distributing income and losses in the “symmetrical” fashion plaintiff contends the partnerships should have used. Amended K-1 returns were never obtained by plaintiff; counsel reported to the court that litigation between the partners, partnerships, trust and accountants was ongoing. The court rejects plaintiff’s timeliness argument. Further, plaintiff failed to meet his burden of overcoming the presumed validity of the director’s final determination and producing proof of his claim that the tax liability he reported on his original 1994 return should be vacated. The fact that the federal government accepted his arguments regarding the taxability of partnership distributions for 1994 does not change this result. The director’s motion for summary judgment is granted. [Decided Oct. 30, 2013.]
 
35-5-1862 Brunswick Hills Racquet Club v. East Brunswick Twp., Tax Ct. (Sundar, J.T.C.) (4 pp.) The court grants defendant’s motion to dismiss plaintiff’s complaints for tax years 2011, 2012 and 2013, finding that, where plaintiff, a tenant in a shopping mall, does not contest the total assessed value of the property but only the internal allocation of the value of its building in relation to the remainder of the shopping center, plaintiff is not an aggrieved taxpayer for purposes of N.J.S.A. 54:3-21and its complaint can be dismissed for failure to state a claim as to which relief can be afforded by the court. [Decided Oct. 2, 2013.]
 
35-5-1863 Robmar Realty Assoc. v. Rockaway Twp., Tax Ct. (Bianco, J.T.C.) (3 pp.) In this challenge to the 2012 property tax assessment on plaintiff’s apartment building in Rockaway, in which plaintiff has responded to defendant’s discovery requests with handwritten income and expense statements, the court denies defendant’s motion seeking to compel more specific discovery from plaintiff, particularly copies of the accountant’s statements or the tax return schedules for 2008-11, finding that the mere convenience of typewritten or computer-generated information is not sufficient to access plaintiff’s potentially confidential financial information and defendant has not shown what more information it hopes to gather from plaintiff’s accountant’s statements or tax returns that is not readily attainable from the information already provided. [Decided Oct. 1, 2013.]
 
TORTS
36-2-1822 Mann v. Walder, App. Div. (per curiam) (8 pp.) Plaintiff appeals from an order that dismissed his claim of negligent infliction of emotional distress. This action arose from the fatal shooting of Emil Mann in 2006. Plaintiff alleged that, at the age of 16, he witnessed the shooting of Mann, whom he described as an uncle, and suffered emotional damages thereafter. The two were part of a group that set up a barbecue at an abandoned farm just outside of Ringwood State Park. There was an altercation with three New Jersey State Park police officers that resulted in one of the officers shooting Mann. He died nine days later. Plaintiff suffered no physical injuries. Plaintiff’s medical expenses related to his incident were $187. In support of his emotional-distress claim, plaintiff produced an expert opinion by a physician. The expert concluded that plaintiff suffers from uncomplicated bereavement and maladaptive health behavior (overeating) affecting his general medical condition, which was secondary to plaintiff’s bereavement. The expert’s report reveals that plaintiff graduated from high school; that he sleeps adequately at night with no nightmares; that he has no difficulty performing his job; and that, although he continues to distrust police officers, his fear of them has receded. The appellate panel finds the trial court properly granted summary judgment to defendants, ruling that plaintiff failed to meet the threshold criteria for maintaining an action under the Tort Claims Act. [Decided Oct. 31, 2013.]
 
36-2-1854 Townsend v. New Jersey Transit Corp., App. Div. (per curiam) (4 pp.) Plaintiff appeals from the dismissal of his complaint asserting claims for defamation and tortious interference with prospective economic advantage. NJT terminated plaintiff for excessive absenteeism. The panel affirms, finding that plaintiff failed to comply with the notice requirements of the Tort Claims Act, that it will not consider plaintiffs’ claims of discrimination under the Law Against Discrimination and the Federal Age Discrimination in Employment Act as they are raised for the first time on appeal, and that even if those claims were to be considered, they would fail because plaintiff failed to allege facts sufficient to state a claim under either act and an employer is not required to accommodate a disabled employee by permitting him to remain absent from work indefinitely. [Decided Nov. 4, 2013.]
 
TORTS—INTENTIONAL TORTS
36-2-1834 Rooster Bar, L.L.C. v. Borough of Cliffside Park, App. Div. (per curiam) (13 pp.) Plaintiffs appeal from the entry of summary judgment dismissing their complaint against defendants, Cliffside Park, Cliffside Park Police Department (CPPD) and Police Officer Haroldson. The complaint alleged intentional interference with economic advantage, harassment and nuisance. Plaintiffs represented that beginning in 2007, members of the CPPD commenced a pattern of harassment and intimidation for the purpose of incapacitating plaintiffs’ business. Plaintiffs contended that defendants’ actions caused their business to close, resulting in a loss in excess of $1 million. The judge concluded that plaintiffs’ allegation that the borough maliciously and intentionally denied its application for a liquor license transfer was barred by the immunity conferred on a public entity under the Tort Claims Act (TCA); and of the 14 occurrences of alleged wrongful conduct cited by plaintiffs, only four fell within the two-year statute of limitations period, and none of those four was sufficient to trigger the continuing-tort theory. Plaintiffs maintain that the motion judge erred in not applying the continuing-tort theory. The appellate panel finds the judge recognized the existence of the continuing-tort theory, applied it, and correctly concluded that plaintiffs’ proofs were insufficient to establish it as an exception to the bar of the statute of limitations. Defendants were entitled to summary judgment because the events complained of either occurred outside the limitations period, or are insufficient as a matter of law to overcome the statutory immunity afforded defendants under the TCA. [Decided Nov. 1, 2013.]
 
TRUSTS AND ESTATES
38-2-1823 In the Matter of the Estate of Strohmenger, App. Div. (per curiam) (23 pp.) Jean Cotis, the estranged wife of the deceased, appeals from several orders that dismissed her claims to a part of his estate and that established a constructive trust for the benefit of their child. The panel affirms in part and reverses in part. It finds that the Probate Part did not err in dismissing Cotis’ complaint for construction of the deceased’s holographic will to provide an inheritance to her, agreeing that her claims either were or could have been addressed when the court rejected her caveat to the will and thus were barred by the entire-controversy doctrine, res judicata and collateral estoppel, and that her construction complaint has no merit. The panel agrees with Cotis that the Probate Part was not authorized to order the disbursement of nonprobate assets (insurance proceeds and IRA funds) into a testamentary trust, even though the trust was created in accordance with the deceased’s wishes and a single trust made good sense in the circumstances here. The matter is remanded for reconsideration of the award of attorney fees. [Decided Oct. 31, 2013.]
 
38-2-1835 In the Matter of the Estate of Vincent, Deceased, App. Div. (per curiam) (8 pp.) Beth Robinson, executrix of the estate of James L. Vincent, appeals from the judgments approving a final accounting and denying her motion for reconsideration. James L. Vincent died on June 3, 2005. The will provided that the residual estate was to be equally divided between decedent’s two daughters, Robinson and Tracie Renee Vincent. In July 2011, Robinson provided a document purporting to be the final accounting of the estate. According to her calculations, the estate had a negative balance of $32,263.17. Robinson did not seek a commission, but rather sought executor’s fees for reimbursement of her expenses in the amount of $57,844.34. Vincent filed exceptions to the accounting. Among other things, she challenged the executor’s fees, and the attorney fees assessed to the estate. The judge reconciled the accounting and established the corpus of the estate as $163,722.54 and Robinson’s commission as $8,186.13. The court reserved entering a final order and allowed Robinson 10 days to submit a certification from the attorney for fees arising from a foreclosure action filed against the estate, and a copy of the order granting her a $4,000 allowance from the estate arising from that action. On Jan. 4, 2012, the judge rendered her final decision and found that Robinson had neither provided the necessary certification of services, nor a copy of the order regarding the $4,000 disbursement. Accordingly, the judge disallowed those expenses. The judge awarded counsel fees to Vincent’s attorney. Lastly, the judge determined that the amount available for distribution from the estate was $53,166.92, with each sister entitled to one-half of the amount after payment of Vincent’s counsel fees. The judge denied Robinson’s motion for reconsideration, finding Robinson failed to establish that the January 2012 ruling was erroneous. The appellate panel affirms substantially for the reasons enunciated by Judge Cleary. [Decided Nov. 1, 2013.]
 
FEDERAL COURT CASES
 
ADMINISTRATIVE LAW
01-7-1864 Lopez v. Colvin, Acting Commissioner of Social Security, U.S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) Plaintiff seeks review of a final determination denying her application for supplemental security income. Plaintiff is a 53-year-old woman who alleges that she was disabled because of “kidney stones, high blood pressure, angina, irregular heartbeat, lower back and swollen body.” At step three of the analysis, the administrative law judge found that plaintiff’s “impairments, singly or in combination, do not meet or equal the regulatory requirements of any listing.” The ALJ laid out his reasoning as to why plaintiff’s mental impairments did not meet or equal a listed impairment, but did not even mention plaintiff’s atypical chest pain, hypertension, or arthritis, or why such impairments did or did not meet or equal a listed impairment. The conclusory statement provided by the ALJ in step three provides no basis for the court to evaluate his findings. Therefore, the court reverses and remands to the commissioner. [Filed Sept. 20, 2013.]
 
01-7-1865 Rosa v. Commissioner of Social Security, U.S. Dist. Ct. (Linares, U.S.D.J.) (20 pp.) Before the court is plaintiff’s appeal seeking review of a final determination denying his application for supplemental security income. Plaintiff claims that he is disabled because of his (1) degenerative disc disease, (2) status postcolostomy reversal, (3) sleep apnea, and (4) dysthymic disorder. Plaintiff suggests that these health issues prevent him from walking further than three blocks, standing for longer than 15 minutes, sitting for more than half an hour, and carrying more than 10 pounds. The court finds the ALJ erred at step two of the requisite analysis in finding that plaintiff’s dysthymic disorder was not a severe impairment. However, because the ALJ found that plaintiff’s degenerative disc disease and status postcolostomy reversal were severe impairments, the error was harmless. The ALJ further erred at step three by making a conclusory statement as to whether each of plaintiff’s severe impairments, or the combination thereof, met or medically equaled a listed impairment. However, this error was also harmless. The panel affirms the ALJ’s determination that plaintiff was not disabled, finding it was supported by substantial evidence. [Filed Sept. 20, 2013.]
 
ALTERNATIVE DISPUTE RESOLUTION—ARBITRATION
03-7-1856 Doctor’s Associates Inc. v. White, U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Petitioner Doctor’s Associates Inc. brings this motion for a default judgment confirming an arbitration award against respondents Altarik White and White’s alleged alter ego, Coach Investments and Developers, L.L.C., d/b/a Coach Investments and Developers, a nonparty to the arbitration. Petitioner is the franchiser, owner and operator of the Subway chain of restaurants. Petitioner and White entered into a franchise agreement for the operation of a Subway restaurant. The agreement provided that disputes would be submitted to arbitration. The arbitrator determined that White had breached the agreement and issued an award terminating White’s franchise. The award also required White to pay petitioner $250 per day until White complied with award. Finally, the award required White to pay arbitration fees. The award is confirmed against White. Petitioner also maintains that the court should confirm the award against Coach Investments and Developers on alter-ego grounds—even though Coach Investments and Developers was not a party to the award or the agreement. The court denies this request, finding that determining at this point whether the nonsignatory respondents are bound to the arbitration clause would overly complicate the confirmation proceedings. After a judgment is entered against White, petitioner may attempt to enforce the award against Coach Investments and Developers. [Filed Sept. 17, 2013.]
 
BANKRUPTCY
42-7-1837 Rockstone Capital, L.L.C. v. Ashenberg, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (5 pp.) Bank of America (BOA) is the successor in interest to Fleet Bank, the original lender in this matter; appellant Rockstone Capital, L.L.C., is the successor in interest to BOA (together, the bank). Appellee Ashenberg is the founder, president and principal shareholder of InPlace Technical Resources, L.L.C. In 1998, Fleet advanced appellee a credit line of $75,000, which Fleet increased in 2000 to $250,000. Under the terms of the agreement, appellee agreed to maintain the bank as his principal depository. From 2002 to 2004, InPlace declined financially. In 2004, appellee transferred $565,000 out of the bank and no longer maintained the bank as his principal depository. Appellee made the transfer in light of certain business considerations. In 2005, the bank sent a default letter to appellee requesting payment of the principal balance of the line of credit. Appellee transferred the remainder of his cash assets into a third bank. Appellant filed a complaint to enforce the debt. The court entered judgment of $335,479 against appellee. Appellee filed a voluntary petition for relief under Chapter 7. Appellant initiated an action seeking to determine that its debt was nondischargeable. The bankruptcy court entered an order that appellee’s debt is dischargeable. This appeal followed. The court affirms Judge Winfield’s decision finding the debt dischargeable because appellant failed to meet the evidentiary requirement to show appellee intended to defraud or cause injury to the bank, specifically the destruction of the security interest. [Filed Sept. 18, 2013.]
 
42-6-1866 In re Curry, U.S. Bank. Ct. (Winfield, U.S.B.J.) (8 pp.) The Chapter 13 debtor objects to Claim No. 10 filed by a tax-sale certificate holder, alleging that the claim was not calculated in accordance with N.J.S.A. 54:4-67 because it applies an 18 percent interest rate on all of the delinquent taxes and sewer charges for tax years 2010 through 2012 based on a 360-day year. The court concludes that 54:4-67 must be applied separately to each tax year, so that for each year’s delinquency, the rate is not more than 8 percent on the first $1,500 of that year’s delinquency and 18 percent on any amount in excess of $1,500, requiring that the proof of claim be recalculated, and that the use of a 360-day year for calculation of the interest due is appropriate as that is a common commercial practice. [Filed Oct. 2, 2013.]
 
42-8-1882 In re Marasek, Third Cir. (per curiam) (5 pp.) The Masareks, husband and wife, filed a petition for a writ of mandamus seeking review of U.S. Bankruptcy Court Judge Kaplan’s refusal to recuse himself from presiding over their Chapter 7 proceeding. In 2008, the Maraseks filed a voluntary petition for bankruptcy under Chapter 13 in the bankruptcy court for the district of New Jersey. Albert Russo, one of New Jersey’s standing Chapter 13 trustees, was appointed to administer the case. The bankruptcy court confirmed a plan, which provided that the Maraseks would sell or refinance their property and use a portion of the proceeds to satisfy all allowed claims. After the Maraseks did not sell or refinance the property, the case was converted to a Chapter 7 bankruptcy, and Barry Frost was appointed trustee. Theodore Liscinski Jr. later replaced Frost as trustee. During the course of the protracted Chapter 7 proceedings—which are still ongoing—the Maraseks requested the recusal of Judge Kaplan. The Maraseks claimed that Judge Kaplan had a number of conflicts of interest based on his relationships with various individuals and businesses involved in the case. Following a hearing, Judge Kaplan denied relief. The Maraseks then filed this petition. The circuit panel finds the Maraseks have not shown that they have a “clear and indisputable right” to the writ. Reviewing the allegations in the mandamus petition and amended petition, the panel concludes they provide no basis for holding that Judge Kaplan’s denial of the recusal motion was improper. [Filed Sept. 24, 2013.]
 
BANKRUPTCY—BUSINESS ENTITIES
42-7-1883 Katz v. Holzberg, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (11 pp.) After the owner of St Mary’s Hospital sought authorization to close it, the Hoboken Municipal Hospital Authority was formed pursuant to the New Jersey Municipal Hospital Authority Law and the owner transferred all of the hospital’s assets to it and it became the owner of the newly renamed Hoboken University Medical Center. The authority created Hudson Healthcare Inc., a not-for-profit corporation to manage and operate the hospital on the authority’s behalf. Subsequently, HHI filed a voluntary petition for relief under Chapter 11 and the bankruptcy court approved its third amended joint plan of orderly liquidation. Plaintiff, as the debtor representative and liquidating trustee, filed this action relating to the alleged mismanagement of HHI. Defendants, a majority of the former members of the authority’s board of trustees, move to dismiss Count IV alleging that they owned fiduciary duties to HHI and its creditors that they breached by abdicating their authority and oversight of HHI, thereby allowing its insolvency to worsen. The court grants their motion, finding that plaintiff does not provide a single case supporting the application of corporate veil-piercing theory or parent-subsidiary law to the public authority context or where a municipal entity and its members were held responsible for the actions of a nonprofit corporation. The court finds persuasive the decision of those courts that have refused to apply corporate veil-piercing theory in the municipal context and concludes that the former authority board members do not owe fiduciary duties to HHI or its creditors. [Filed Oct. 2, 2013.]
 
CIVIL PROCEDURE
07-7-1824 MOL (America) Inc. v Can-Med Lines (USA) Inc., U.S. Dist. Ct. (Salas, U.S.D.J.) (3 pp.) The court denies without prejudice plaintiff’s motion for default judgment because plaintiff has submitted no evidence to support its statement that CSC Lawyers Incorporating Service in California has been designated as defendants’ official agent for service and thus has failed to brief how service of process was sufficiently provided to defendants. Plaintiff is ordered to file a new motion for default judgment with evidence establishing CSC as defendants’ properly legal agent at the time of service or a brief explaining why service was otherwise properly effected. Failure to do so will result in dismissal with prejudice. [Filed Sept. 27, 2013.]
 
07-7-1857 H&R Block Bank v. JBW Holdings, L.L.C., U.S. Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) Plaintiff H&R Block Bank holds a mortgage that James Wilson entered into on behalf of defendant JBW Holdings, L.L.C. Wilson leased the subject property to Joann Caballero. After obtaining an order of foreclosure in New Jersey Superior Court, plaintiff commenced this action on June 8, 2011, seeking to evict Caballero, and to set aside and avoid the lease. After none of the defendants filed a pleading, appeared or otherwise defended the action, plaintiff moved for default judgment. On Feb. 23, 2012, the court entered an order denying plaintiff’s motion for default judgment on the ground that plaintiff had not satisfied the Service Members Civil Relief Act. On June 29, 2012, the clerk of the court notified plaintiff’s counsel of record that the court would dismiss the action for lack of prosecution unless plaintiff filed an affidavit showing good-faith efforts to prosecute. When plaintiff failed to respond, the court entered an order on July 19, 2012, dismissing this case. On July 18, 2013, plaintiff filed this motion to vacate the court’s order and to reinstate the case. Plaintiff’s counsel addresses plaintiff’s failure to respond to the notice of call for dismissal by stating that a partner for the plaintiff’s attorneys who had a significant role in this litigation departed from the firm, which “created some uncertainty and confusion” as to whether the firm continued to represent plaintiff. In addition, plaintiff states that a manager at H&R who was responsible for this litigation left his job. Plaintiff seeks relief on “excusable neglect” grounds. The court concludes that under the totality of the circumstances, plaintiff’s neglect in prosecuting this action is not “excusable.” Plaintiff’s motion is denied. [Filed Sept. 17, 2013.]
 
07-7-1867 United States v. Onyenso, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (7 pp.) Nonparty Dr. Usha Babaria moves to quash the subpoena issued to JPMorgan Chase by defendant Dr. Chikezie Onyenso. The superseding indictment in this case charges defendant with participating in a kickback scheme to defraud the Medicare and Medicaid programs. Although Dr. Babaria’s husband, Ashokkumar Babaria, pleaded guilty to an indictment related to the alleged kickback scheme, Dr. Babaria herself is a nonparty and has not been charged with any involvement in the alleged illegal activity. Dr. Babaria has not been called to testify before the grand jury in connection with this case, nor has she received a subpoena to testify during Dr. Onyenso’s trial. Defendant served a subpoena on JP-Morgan pursuant to Federal Rule of Criminal Procedure 17(c) seeking financial documents pertaining to Dr. Babaria’s residence—in which Ashokkumar Babaria has no ownership interest—for a period of 17 years. The court finds that defendant’s expansive document request, purportedly sought on the hope that it may uncover impeachment or other material regarding Dr. Babaria’s husband, does not meet the relevance—and specificity—requirements of United States v. Nixon. Also, defendant has not demonstrated that the requested documents would be admissible at trial. The court grants Dr. Babaria’s motion. [Filed Sept. 20, 2013.]
 
07-7-1884 Averhart v. Communications Workers of America, U.S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) In this action seeking reconsideration of the court’s denial of plaintiff’s motion to disqualify defendant’s counsel and of a preliminary injunction to enjoin the CWA and the CWA Local 1033 from expending funds on legal counsel for the national union and local union defendants on the basis that plaintiff’s allegations were insufficient to warrant disqualification and that there was no basis to issue a preliminary injunction, the court denies the motion, holding that plaintiff does not show that the court ignored any claims advanced in the earlier motion or that any mistake constituted a clear error of law, but merely contends that the court did not give proper weight to certain legal principles and challenges the way in which the court interpreted prior cases and legal standards in making its rulings, which does not meet the standard for reconsideration. [Filed Oct. 4, 2013.]
 
CIVIL RIGHTS
46-7-1858 Krol v. Crawford, U.S. Dist. Ct. (Hayden, U.S.D.J.) (5 pp.) In this 42 U.S.C. § 1983 action alleging violations of her federal and state constitutional rights, the Americans With Disabilities Act, and the New Jersey Civil Rights Act arising out of the restrictions placed on her intended participation in a bear-hunt protest at the personal residence of the governor, the court grants the municipal defendants’ motion to dismiss to the extent that it requests dismissal under Rule 12(b)(6) except as to the constitutional claims against the police chief who personally interacted with plaintiff as plaintiff has pleaded sufficient facts to state a constitutional claim against him but has failed to plead any facts suggesting other township defendants’ personal involvement with the chief’s conduct. The motion is denied insofar as it seeks summary judgment pursuant to Rules 12(d) and 56. [Filed Sept. 30, 2013.]
 
46-7-1859 Mebuin v. United States, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (22 pp.) Plaintiff, an alien detainee confined at the Essex County Jail in connection with removal proceedings, seeks to bring the 42 U.S.C. § 1983 action alleging violations of his constitutional rights arising out of the conditions of his confinement in forma pauperis. The court therefore reviews the complaint pursuant to the Prison Litigation Reform Act and concludes that: the Fifth and Fourteenth Amendment claims for denial of appropriate medical care with respect to plaintiff’s sleep apnea and high blood pressure will be permitted to proceed as against certain defendants. All claims of due process, equal protection, and cruel and unusual punishment arising out of allegedly sexually offensive and frightening graffiti in plaintiff’s cell, an incident in which a correctional officer shoved him during a fire drill, and verbal harassment and obscene gestures by other correctional officers, will be dismissed as duplicative of claims asserted in a separate action. Civil Action No. 13-0443. All claims against the United States, the Bureau of Immigration and Customs Enforcement, and certain federal officials in their official capacities are dismissed with prejudice. All claims asserted under the Eighth Amendment and HIPAA are dismissed with prejudice for failure to state a claim. All remaining claims are dismissed without prejudice for failure to state a claim. Plaintiff is granted leave to file an application to amend addressing the deficiencies of his medical-care and nutrition claims. [Filed Sept. 25, 2013.]
 
46-7-1868 Moore v. Carteret Police Department, U.S. Dist. Ct. (Linares, U.S.D.J.) (23 pp.) Plaintiff filed this complaint under 42 U.S.C. § 1983, alleging claims arising out of his arrest for possession of cocaine. The complaint asserts claims of false imprisonment and excessive bail against all named defendants. In addition, the complaint asserts claims of malicious prosecution and violation of the Double Jeopardy Clause against the Middlesex County Prosecutor’s Office (MCPO) defendants. Plaintiff claims that the MCPO defendants knew that the former indictment had been dismissed, but conspired to violate plaintiff’s constitutional rights by bringing a superseding indictment under the same statute to a second grand jury. Plaintiff asserts that defendants’ refiling of criminal charges against him violated his “constitutional rights under false imprisonment, and double jeopardy clause.” The court rejects plaintiff’s contention and grants defendants’ motion to dismiss. The complaint is dismissed with prejudice, in its entirety, with respect to Middlesex County and the MCPO defendants. [Filed Sept. 20, 2013.]
 
46-7-1869 Moore v. Dow, U.S. Dist. Ct. (Linares, U.S.D.J.) (25 pp.) Plaintiff has filed four separate civil rights actions pursuant to 42 U.S.C. § 1983, each stemming from his arrest and indictment for drug possession. This action was filed against the Middlesex County Prosecutor’s Office and officers of the Carteret Police Department, alleging unlawful search and seizure and excessive force, as well as malicious prosecution. The court dismissed plaintiff’s claims except for the Fourth Amendment claim of unlawful search and seizure. Plaintiff has filed five earlier civil actions in the district of New Jersey that were dismissed for failure to state a claim. Accordingly, plaintiff is deemed a litigant with “three strikes” under 28 U.S.C. § 1915(g) because he has passed the statutory limit set forth in that statute. Where he has made no claims of “imminent danger of serious physical injury,” plaintiff is now precluded from seeking in forma pauperis status pursuant to § 1915(g)’s “three strikes” rule. The court grants defendants’ motions to revoke plaintiff’s in forma pauperis status and dismiss the complaint in its entirety without prejudice to plaintiff’s right to refile his complaint with prepayment of the full filing fee. [Filed Sept. 19, 2013.]
 
46-7-1870 Parrish v. Ocean County Jail, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) The court grants Parrish’s application to proceed in forma pauperis. Parrish brings this action against Ocean County Jail and Warden Hutler for violation of his constitutional rights under 42 U.S.C. § 1983. Parrish asserts that when he was housed in the older section of the jail, he did not have the same privilege and access to legal information as inmates housed in the new section. He seeks damages and an injunction directing the warden to provide equal access to legal information to all inmates. Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts, but that right does not include a free-standing right to a minimum amount of access to a law library. Parrish’s allegations do not state a claim of access to courts because he has not alleged any actual injury to a nonfrivolous legal claim traceable to his deficient access to legal materials. The court dismisses the access-to-courts claim for failure to state a claim. Parrish’s claim of equal protection is also dismissed for failure to state a claim. Parrish does not assert facts showing that he was similarly situated to inmates housed in the newer section of the jail, that he received different treatment from other similarly situated individuals, that the warden did so intentionally, or that there was no rational basis for any difference in treatment. The claims against the jail are dismissed with prejudice. Because Parrish may be able to assert facts showing that the warden or another jail official violated his right of access to courts and his right to equal protection, the court grants him 30 days to file an amended complaint. The court declines supplemental jurisdiction over claims arising under state law. [Filed Sept. 20, 2013.]
 
46-7-1871 Nonis v. Middlesex County Sheriff’s Office, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.) Pursuant to the Prison Litigation Reform Act, the court reviews this complaint filed by an inmate at the Mid-State Correctional Facility to determine whether to sua sponte dismiss any claim and concludes that: the due process medical-care claim may proceed against the fictitious defendants who are officers of the Middlesex County Sheriff’s Office or Middlesex County Correctional Center; the § 1983 claims against the Middlesex County Correctional Center, Robert Wood Johnson University Hospital, and the hospital’s “John Doe” doctors, nurses, and security personnel are dismissed with prejudice, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c), for failure to state a claim; the remaining claims, including the state-law negligence claims against Robert Wood Johnson University Hospital and its staff members, are dismissed without prejudice. [Filed Sept. 30, 2013.]
 
CONSUMER PROTECTION
09-7-1860 Hammer v. Vital Pharmaceuticals, U.S. Dist. Ct. (Shipp, U.S.M.J.) (5 pp.) The court dismisses with prejudice plaintiff’s fraud claim under the New Jersey Consumer Fraud Act and his claims of breach of express and implied warranties based on his allegation that Clenbutrx is not a dietary supplement because it does not consist solely of dietary ingredients because he fails to allege that none of the ingredients in Clenbutrx is dietary. It denies defendant’s motion to dismiss with respect to the separate alternative allegations that defendant misrepresented and continues to misrepresent that the Geranamine in Clenbutrx is a natural constituent of Geranium Oil, and with respect to the claims of breach of express and implied warranties based on alleged mislabeling with regard to Geranamine, in light of case law holding that prelitigation notice is not required as to a manufacturer that was not the immediate seller of the product and that even if notice was required, filing a complaint is sufficient when the defendant is a remote manufacturer. [Filed Sept. 30, 2013.]
 
CONTRACTS
11-7-1825 FPM Financial Services, L.L.C. v. Redline Products, Ltd., U.S. Dist. Ct. (Shipp, U.S.M.J.) (12 pp.) Frank Mengrone, the president and managing member of FPM Financial Services, L.L.C., alleges that FPM was the exclusive U.S. distributor of “Redline,” a disposable breathalyzer. Defendant Redline Products, Ltd., manufactures and supplies Redline. Defendant’s offices are located in South Africa. The claims in this action arise from a contract between FPM and Redline Products executed in the spring of 2010 (distribution agreement). The parties disagree regarding whether FPM is the exclusive distributor of Redline in the United States. The parties further disagree as to whether defendant violated a separate nondisclosure agreement. Defendant filed a motion for summary judgment. Defendant argues that the distribution agreement did not provide for exclusivity. The court agrees and grants defendant’s motion. The only reasonable interpretation in construing the contract language is that plaintiff was given the sole rights of distribution as it relates to the accounts specifically delineated in the contract, not to the entire U.S. market. This construction is bolstered by language in the contract that precluded the plaintiff from distributing the product to other accounts not listed in the contract without the express permission of the defendant. Plaintiff has failed to raise a genuine issue of material fact to the contrary. Although the parties dispute whether or not the defendant has breached the promises of confidentiality, the court finds that plaintiff has failed to raise a genuine issue of material fact regarding any resulting damages. [Filed Sept. 17, 2013.]
 
11-7-1838 Burris Construction Co., L.L.C. v. Nuconsteel Corp., U.S. Dist. Ct. (Hillman, U.S.D.J.) (13 pp.) Nuconsteel, a manufacturer of steel products, supplied steel to Burris, a construction company for construction of a health-care facility in Voorhees. Burris believed that it also had an oral contract for the supply of steel to three other health-care facilities. However, Nuconsteel subsequently advised that it was closing its operations and would not be supplying the steel for those facilities. Burris therefore refused to pay for the Voorhees steel that had been delivered and filed a breach-of-contract action; Nuconsteel filed a breach-of-contract action and a suit on the bond against its issuer. The court denies without prejudice Nuconsteel’s motion for summary judgment in both actions, finding that it requires clarification from the parties regarding venue and choice of law in these matters because the purchase order that served as the contract regarding the Voorhees project contains a forum-selection clause and choice-of-law provision indicating that the parties consent to the exclusive jurisdiction of the Texas courts and that Texas law applies to any dispute but the parties analyze the potential breach of contract under New Jersey law, while the purchase orders for the other three projects do not include the choice-of-law provision. [Filed Sept. 30, 2013.]
 
CONTRACTS—FRAUD
11-7-1872 Manley Toys Ltd. v. Toys “R” Us Inc., U.S. Dist. Ct. (Hayden, U.S.D.J.) (14 pp.) Plaintiff, which had an agreement to import toy products for defendant and a holdback agreement under which the parties established an escrow account to hold funds that would be used to satisfy a judgment entered against defendant in a wrongful-death action after a young woman died after using a slide sold by defendant and supplied by plaintiff and which authorized defendant to withhold a percentage of payment due plaintiff to partially fund the escrow account, filed this action asserting claims for, inter alia, breach of contract, fraud, negligent misrepresentation, and quantum meruit, after defendant failed to pay for goods plaintiff delivered to it. The court denies defendant’s motion to dismiss plaintiff’s amended fraud claim, finding that plaintiff has provided factual support in the complaint for its belief that defendant committed fraud in the negotiation of the holdback agreement. The court also denies plaintiff’s motion for reconsideration of the order denying its motion for a writ of attachment against defendant’s New Jersey property because, inter alia, the court did not overlook relevant case law or err in finding Tucker apposite and persuasive. [Filed Sept. 30, 2013.]
 
CONTRACTS—TORTS—DEFAMATION
11-7-1885 Gillon v. Ting, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (9 pp.) Plaintiff Gillon, through her company, IGMC, worked with defendants to arrange for a band to perform at their wedding. Defendants requested a lead female vocalist named Bedia. The parties signed a “music producer and purchaser agreement” in which IGMC agreed to provide the “Awestruck” band for the wedding. Despite assurances from Gillon, Bedia did not perform. The parties exchanged emails discussing settlement amounts to reimburse defendants for services not received under the contract and in exchange for refraining from filing suit and confidentiality. After defendants posted a message on the website RipoffReport.com (the posting) expressing their dissatisfaction with plaintiffs’ services, plaintiffs sent them a cease-and-desist letter. The parties reached a settlement agreement whereby IGMC agreed to pay defendants $3,500 to take down the posting and refrain from further negative comments. However, the website will not take postings down. Defendants thus could not have the posting removed but did make a follow-up posting. Plaintiffs brought this defamation action. Defendants filed a motion to dismiss. The court finds defendants’ promise to make a follow-up posting and maintain confidentiality is a negotiated term of the settlement agreement and serves as valid consideration for settlement of the dispute, i.e., for plaintiffs’ promise to refrain from bringing a lawsuit for defamation or any other claims arising from the posting. The settlement agreement necessarily implies a mutual release of each parties’ claims. Plaintiffs’ claims are dismissed. [Filed Sept. 4, 2013.]
 
EDUCATION LAW
16-7-1873 G.A. by and through his parents L.A. and A.A. v. River Vale Board of Education, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (61 pp.) Six-year-old G.A. was diagnosed with ankyloglossia, speech delay, and unilateral sensorineural hearing loss in his left ear. The proposed individualized educational program (IEP) provided for speech and language therapy, physical therapy, an FM hearing aid, and placement in an integrated classroom. It did not provide for extended school year, occupational therapy, transportation, individual therapy, or an ear-level personal hearing aid. G.A.’s parents initiated a due process hearing. The ALJ found that the ear-level hearing aid would have been optimal, but concluded that the board’s proposed desk-level hearing aid was appropriate. Further, she found that the hearing aid plaintiffs purchased was not specifically for educational benefit and only where the child required a hearing aid to achieve a FAPE, as specified in the IEP, should the technology be provided. Here, plaintiffs claim that the ALJ used an incorrect legal standard, and the ALJ does not have the expertise to depart from the private audiologist’s recommendations. The appellate panel finds that the ALJ’s analysis of the benefits of the aid indicates she used the appropriate standard. Further, the ALJ based her ruling on the private audiologist’s report that recommended an FM aid. It did not specify the type. Nor did it recommend an ear-level aid. Although an ear-level hearing aid would have been optimal, and may have maximized G.A.’s benefit, it was not required. [Filed Sept. 18, 2013.]
 
EVIDENCE
19-7-1826 Fairview Ritz Corp. v. Borough of Fairview, U.S. Dist. Ct. (Hammer, U.S.M.J.) (13 pp.) In this action alleging that defendants unlawfully targeted plaintiff’s business as being a cover for prostitution, which forced plaintiff to shut down its business, and seeking, inter alia, to recover the value of the business, plaintiff moves for reconsideration of the court’s grant of defendants’ motion for spoliation sanctions, alleging that the court improperly determined relevance in regard to the spoliated document and that no spoliation occurred since plaintiff has now produced the document at issue. The court finds that it cannot impose an adverse inference based on the document that plaintiff’s counsel has now produced. Therefore, plaintiff’s motion for reconsideration is granted as to the finding of spoliation and the imposition of an adverse inference at trial. However, plaintiff’s counsel is ordered to show why monetary sanctions in the form of attorney fees and costs incurred by defendants in the litigation concerning the production of the document should not be imposed. [Filed Sept. 27, 2013.]
 
EVIDENCE—EXPERTS
19-2-1839 Durkin v. Wabash National, U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (7 pp.) Defendant Wabash objects to the magistrate judge’s order that, although it granted Wabash’s motion for reimbursement for expert fees incurred during the actual deposition of its experts, it denied reimbursement for fees incurred in preparation for the deposition and for deposition travel. The court affirms the magistrate’s order, finding that it is neither clearly erroneous nor contrary to law since, absent controlling Third Circuit precedent, there was no error in the magistrate judge examining the persuasive authority of other jurisdictions and her decision to adopt the holding in Rhee v. Witco Chem. Corp. (N.D. Ill.) that denied reimbursement for deposition preparation was neither clearly erroneous nor contrary to law. [Filed Sept. 30, 2013.]
 
HEALTH LAW
22-7-1840 Lipstein v. United Healthcare Group, U.S. Dist. Ct. (Simandle, U.S.D.J.) (50 pp.) In this putative class action alleging that defendant, a claims administrator for thousands of health insurance plans, including the Bristol-Myers Squibb Co. health-care plan, failed to follow the clear language of the plans when determining secondary insurance coverage payments to insureds who were (1) enrolled in or eligible for Medicare and (2) who received medical treatment from providers who had opted out of Medicare or who received treatment from Medicare providers and did not submit a claim to Medicare and that its uniformly applied method of estimating what Medicare would have paid for services in those circumstances resulted in underpayment for the vast majority of insures, in violation of ERISA, plaintiffs move for class certification and for summary judgment on their claims. The court finds that plaintiffs’ proposed class suffers from a lack of commonality and predominance and fails to show that common questions predominate or that a single injunction or declaratory judgment could provide classwide relief. Therefore, the motion to certify a class is denied. As to plaintiffs’ claims, the court holds that the language of the BMS plan is ambiguous as to how to estimate Medicare payments, United’s interpretation is neither contrary to the language of the plan nor arbitrary and capricious, and given United’s discretion to interpret the plan’s terms, its estimation policy must be upheld as applied to the plaintiffs’ claims and it grants defendants’ motion for summary judgment. [Filed Sept. 27, 2013.]
 
INSURANCE LAW
23-7-1886 Montvale Surgical Center, L.L.C. v. Horizon Blue Cross Blue Shield of N.J., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (9 pp.) Defendant Horizon Blue Cross Blue Shield of New Jersey seeks summary judgment on the complaint brought by plaintiffs Montvale Surgical Center, In-Balance Health, and Health Switch as assignees of the patient “D.C.” D.C. received manipulations under anesthesia using services provided by plaintiffs. D.C.’s health benefits plan is governed by the Employee Retirement Income Security Act of 1974 (ERISA) and insured by Horizon. Plaintiffs concede that the court should interpret their claim as a suit for unpaid benefits under § 502(a)(1)(B). Horizon argues that it is entitled to summary judgment because plaintiffs cannot show Horizon’s denial of benefits was improper. D.C.’s health plan provides that Horizon has the discretionary authority to “make a decision or determination” regarding benefits. The plan does not cover “experimental and investigational” services, and Horizon has issued a policy statement explaining that it considers various forms of manipulation under anesthesia to be experimental. Plaintiffs did not provide an individualized assessment of why manipulation under anesthesia was medically necessary for D.C. Given these facts, no reasonable fact finder could find that Horizon’s denial of benefits was arbitrary and capricious. Summary judgment is granted in favor of Horizon. [Filed Sept. 20, 2013.]
 
23-7-1887 The Prudential Insurance Company of America v. Brimberry, U.S. Dist. Ct. (Dickson, U.S.M.J.) (12 pp.) Kurt Brimberry, deceased, was formerly an employee of defendant Franklin Templeton Companies. Brimberry was eligible for coverage under a group life insurance policy, issued by plaintiff Prudential Insurance Company of America. Brimberry died on Aug. 29, 2012. Brimberry’s widow submitted a claim to Prudential. Counsel for defendant Fiduciary Trust Company then notified Prudential that Fiduciary Trust Company was asserting a competing claim to any insurance benefits, asserting it was entitled to a constructive trust over any policy benefits because Brimberry allegedly misappropriated certain funds when employed by Franklin Templeton. Prudential notified Brimberry’s widow of its intention to file an interpleader action regarding any benefits payable under the policy. She filed an action against Prudential in the Superior Court of California, which Prudential removed to the U.S. District Court for the Central District of California. Prudential commenced this interpleader action. Here, defendants Fiduciary Trust Company International, Fiduciary Trust Company International of Florida and Franklin Templeton Companies’s motion to transfer venue is granted and this matter will be transferred to the U.S. District Court for the Central District of California. [Filed Sept. 23, 2013.]
 
INTELLECTUAL PROPERTY
53-7-1841 New India USA, L.L.C. v. Vibrant Media Group, L.L.C., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Plaintiff News India USA, L.L.C., is a limited liability company organized and existing under the laws of New Jersey. Plaintiff owns the federally registered trademark “Desi Talk.” The trademark has been used in commerce continuously since 1997. Plaintiff operates a print and online weekly Indian-American newspaper; the online version is located at www.desitalk.com. Defendant Vibrant Media Group, L.L.C., is a limited liability company with its principal place of business in Illinois. Defendant promotes and distributes a newspaper under the name The Desi Times and operates a website at www.thedesitimes.com. Plaintiff alleges that defendant’s newspaper and website are similar in sound, look and appearance to the trademark, and that fefendant is deliberately attempting to confuse, mislead and deceive the public, as well as trade on the good will of the trademark and plaintiff’s reputation. Here, plaintiff’s motion for default judgment and permanent injunction is denied. Defendant’s cross-motion to vacate the default and for injunction is granted. Defendant’s cross-motion to dismiss, in which defendant argues it does not have sufficient contacts with New Jersey to warrant personal jurisdiction, is denied. Plaintiff has not alleged that defendant targeted and accepted subscriptions from New Jersey residents through its website. Nor has plaintiff alleged that defendant has any non-Internet contacts with New Jersey. Plaintiff has not shown that the court has personal jurisdiction over defendant. However, plaintiff’s claim is not “clearly frivolous” and it has presented facts that suggest that New Jersey may be a proper forum. The court will therefore allow jurisdictional discovery. [Filed Sept. 17, 2013.]
 
53-7-1861 Kumar v. The Institute of Electrical and Electronics Engineering, U.S. Dist. Ct. (Hayden, U.S.D.J.) (13 pp.) Defendant seeks to dismiss this action alleging that it infringed plaintiff’s copyright in a doctoral thesis he prepared while he was a graduate student and seeking injunctive relief, monetary damages, and declaratory judgment, along with costs and attorney fees for defendant’s allegedly unlawful copying and preparation of derivative works based on the thesis. The court denies defendant’s motion, finding that plaintiff’s allegations—that he is the author and copyright owner of the thesis, that it is an original work subject to copyright, and that it is registered with the U.S. Copyright Office, and that defendant’s article is based on, and not distinguishable from, the thesis and contains text and graphics that are copied from and/or substantially similar to protectable material contained in the thesis—set out sufficient factual matter to show that the claim is facially plausible and to permit the court to reasonably infer that defendant is liable for infringing plaintiff’s copyright. [Filed Sept. 30, 2013.]
 
53-7-1888 Bavendam v. Pearson Education Inc., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (15 pp.) In these five copyright infringement cases brought by various photographers and Minden Pictures Inc., a stock photo agency that licenses photographs of various photographers to publishers, or by MPI photographers, against Pearson, which publishes and sells textbooks, the court denies (1) Pearson’s motion to sever any plaintiff that is not the first-named plaintiff, finding that plaintiffs meet the requirements of Rule 20(a) because the claims arise out of the same transaction or occurrence (or the same series of transactions or occurrences) and although the claims involve different underlying material, they all involve licenses negotiated by MPI and Pearson and publications created and sold by Pearson and each is premised on the same alleged pattern and practice of under-licensing copyrighted work by Pearson, and the various claims also raise common questions of law and fact; (2) Pearson’s motion to dismiss the contributory copyright infringement claims because plaintiffs have alleged sufficient facts to survive a motion to dismiss as the complaint alleges third-party infringement, Pearson’s knowledge of that infringement, and material contribution in the form of reproduction, transmission and facilitation, and plaintiffs have pleaded sufficient facts to state a claim under the predicate act exception to the territoriality application of the Copyright Act; and (3) plaintiff’s motion to dismiss MPI’s copyright infringement claims since the claims are not barred by claim preclusion or issue preclusion. [Filed Oct. 3, 2013.]
 
53-7-1889 Nite Glow Industries Inc. v. Central Garden and Pet Company, U.S. Dist. Ct. (Waldor, U.S.D.J.) (5 pp.) In this action alleging infringement of plaintiffs’ ’445 patent, plaintiffs seek leave to file a second amended complaint to assert claims for patent infringement, misappropriation, breach of contract, and false marketing regarding plaintiffs’ ’206 and ’399 patents. The court grants the motion, finding that although Central claims that it lawfully used plaintiffs’ patents in accordance with their license agreement and amendment would be futile, accepting as it must all allegations in the amended complaint as true, the license agreement only includes explicit licensing of the ’206 patent, and even if the agreement controls both patents, there are still breach-of-contract issues alleged. Therefore, the court holds that the addition of causes of action related to the ’206 and ’399 patents withstands a futility challenge. [Filed Oct. 4, 2013.]
 
LABOR AND EMPLOYMENT
25-7-1842 Delendra v. Marine Transport Logistic Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiff, who had been hired by defendants to provide security, filed this action asserting that defendants failed to compensate him properly, in violation of the Fair Labor Standards Act, the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, and common law. Defendants filed a counterclaim for breach of contract seeking damages to cover the cost of lost smart keys and damage to vehicles that allegedly occurred during plaintiff’s employment. The court grants plaintiff’s motion to dismiss the counterclaim, finding that the asserted connection between the parties’ claims is too broad to support supplemental jurisdiction since plaintiff’s claims involve an inquiry into the hours he worked and the wages he received while defendant’s counterclaim raises an entirely different set of issues, requiring different evidence and proofs with little overlap with the evidence relevant to the FLSA claims. [Filed Sept. 30, 2013.]
 
25-7-1874 Moore v. U.S. Foodservice Inc., U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (17 pp.) Plaintiff filed this action alleging violations of the Family Medical Leave Act in the form of interference and retaliation after he was discharged for excessive abstenteeism. The court grants defendant’s motion for summary judgment on the claim of interference because it is undisputed that when plaintiff’s employment was terminated, he had exhausted his 12-week allotment of FMLA leave and was not eligible for further leave, and, thus, defendant did not deny him any FMLA leave to which he was entitled. Because he was not entitled to benefits under the FMLA, defendant could not have illegitimately prevented him from obtaining those benefits. The motion is granted as to the claim of retaliation because there is no support in the record for the claim that plaintiff was terminated in retaliation for taking MFLA leave. Rather, he was terminated because he had exceeded the number of unexcused absences allowed by his employer and was subject to defendant’s progressive discipline policy, which ultimately resulted in his termination, and his prior invocation of FMLA leave had no relation to his termination. [Filed Sept. 30, 2013.]
 
25-7-1890 Gehringer v. Atlantic Detroit Diesel Allison, L.L.C., U.S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) In this hybrid action alleging that defendant ADDA breached the terms of its collective-bargaining agreement with Local 15C of the International Union of Operating Engineers when it terminated plaintiff-diesel mechanics, and that defendant Local 15C subsequently failed to fairly represent them, the court grants defendants’ motion for summary judgment, holding that plaintiffs have failed to raise a genuine dispute of material fact that the union acted in bad faith or acted arbitrarily in refusing to arbitrate plaintiffs’ claims, and that ADDA is entitled to summary judgment on the breach of the CBA claim because a breach of the duty of fair representation is a necessary prerequisite to such a claim in hybrid suits against both the employer and the union. [Filed Oct. 3, 2013.]
 
LABOR AND EMPLOYMENT—DISCRIMINATION
25-7-1891 Andrews v. Whittaker, U.S. Dist. Ct. (Dickson, U.S.M.J.) (6 pp.) Plaintiff filed suit against defendant Joan Whittaker of the Irvington Public Library, alleging employ discrimination in violation of Title VII of the Civil Rights Act of 1964. Plaintiff, a security officer at the Irvington Public Library, alleges that defendant asked whether he could work every other Saturday. Plaintiff allegedly explained that he was unable to do so due to obligations related to the care of his disabled daughter. Shortly thereafter, plaintiff alleges that his employment relationship with the Irvington Public Library was terminated without explanation. Plaintiff alleges that the termination constituted discrimination “on the basis of sex (male)” and unlawful retaliation, in violation of Title VII. Proceeding pro se, plaintiff moves for the appointment of pro bono counsel pursuant to 28 U.S.C § 1915(e)(1). Plaintiff’s application is denied. Although the court notes that plaintiff is indigent and alleges that he is unable to attain or afford counsel, this factor without satisfaction of any other Tabron factors is not enough to warrant the appointment of counsel. [Filed Sept. 23, 2013.]
 
LABOR AND EMPLOYMENT—EMPLOYEE BENEFITS
25-7-1827 National Security Systems Inc. v. Iola, U.S. Dist. Ct. (Thompson, U.S.D.J.) (7 pp.) This case involves an employee benefit plan known as the Employers Participating Insurance Cooperative (EPIC plan) that was created to take advantage of favorable tax treatment under the Internal Revenue Code. The EPIC plan offered two benefits: (1) a death benefit; and (2) a state-mandated conversion privilege that permitted covered employees to convert their coverage to individual policies on retirement or termination of employment. Contributions to the EPIC plan were, under certain circumstances, tax deductible to the participating employer. During audits of participating employers, however, the IRS determined that contributions to the EPIC plan were not tax deductible and disallowed such deductions. Plaintiffs initiated this lawsuit against various parties whom plaintiffs believed had some role in the creation, marketing and administration of the EPIC plan. Both parties appealed the amended final judgment to the Third Circuit. Here, defendant James Barrett seeks a stay of the retrial. Plaintiffs filed a cross-motion to certify the amended final judgment. As Barrett faces a number of personal hardships following Hurricane Sandy, the court will schedule the trial to begin in January 2014 but declines to condition this relief on the satisfaction of any conditions sought by plaintiffs. Therefore, to the extent Barrett seeks a stay, his motion is denied. The court also denies plaintiffs’ cross-motion to certify the judgment without prejudice. Plaintiffs have not met their burden of showing that certification is warranted under Rule 54(b). It appears that a number of issues await resolution and certification of the amended final judgment may create the potential for inconsistent verdicts. [Filed Sept. 17, 2013.]
 
MEDICAL MALPRACTICE
29-7-1892 Small v. Lanigan, U.S. Dist. Ct. (Thompson, U.S.D.J.) (5 pp.) In this action regarding inadequate medical treatment, plaintiff, a N.J. state inmate, filed an amended complaint alleging medical malpractice but did not file an affidavit of merit. Defendants move to dismiss. The court grants defendants’ motion to dismiss count two to the extent that the claim involves allegations regarding whether plaintiff’s medical conditions were properly evaluated since a jury would require an expert’s opinion to determine this issue. The motion to dismiss is denied with respect to plaintiff’s claims that defendants provided him with an unsafe wheelchair, withheld pain medication as a punishment, and failed to respond to requests for medical treatment since a jury may not require the assistance of an expert with respect to these claims. [Filed Oct. 4, 2013.]
 
PRODUCTS LIABILITY
32-7-1875 Certain Underwriters at Lloyd’s, London v. U-Line Corp., U.S. Dist. Ct. (Hillman, U.S.D.J.) (17 pp.) After making a payment to homeowners under the insurance policy it issued to them for damage sustained when a refrigerator/freezer manufactured, designed and packaged by defendants malfunctioned and released water into the home, plaintiff filed this action as subrogee of the homeowners, asserting claims under the New Jersey Products Liability Act and for strict liability, negligence, breach of duty of care and breach of implied warranty. The court grants defendants’ motion to dismiss the claims for strict liability, negligence, breach of duty of care, and breach of implied warranty because they are subsumed by plaintiff’s NJPLA claim. The NJPLA claim and the claim of breach of express warranty are dismissed without prejudice because of pleading deficiencies, including that the claims do not identify each defendant’s relationship to the refrigerator/freezer. [Filed Oct. 1, 2013.]
 
32-7-1876 Westfield Ins. Co. v. Interline Brands Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (15 pp.) In this insurance subrogation action filed by Westfield on behalf of four insureds who suffered property damage due to allegedly faulty toilet supply lines manufactured and distributed by defendants, and asserting claims for negligence, failure to warn, breach of warranty, strict liability, fraudulent concealment and violation of the New Jersey Products Liability Act, the court denies plaintiff’s motion to remand this action based on the Colorado River abstention doctrine, finding that the doctrine does not apply since this action is not parallel to the nine pending state court actions that involve the same product defect at issue in this action—cracking of polymeric coupling nuts—but involve different chains of manufacture and distribution, two different kinds of coupling nuts, and which will involve discovery specific to the location of installation and property damage, and further because exceptional circumstances favoring abstention do not exist. [Filed Oct. 1, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-7-1843 Peng v. CitiMortgage, U.S. Dist. Ct. (Bumb, U.S.D.J.) (12 pp.) Plaintiffs filed this action against defendants CitiMortgage Inc., Source One Mortgage Inc., and Mortgage of Electronic Registration Systems Inc. (MERS). Plaintiffs purported to allege violations of the Truth in Lending Act (TILA) and Real Estate Settlement Procedure Act (RESPA), as well as state causes of action. The court granted defendants’ motions to dismiss without prejudice and gave plaintiffs 30 days to file an amended complaint. Thereafter, plaintiffs filed an amended complaint, dropping MERS as a defendant and naming the city of Vineland, Landmark Building Development Co., Landis Title Corp., and TD Bank as defendants. The court dismissed the amended complaint with prejudice against Vineland. The court further ordered that all claims sounding in TILA and RESPA against the remaining defendants were dismissed with prejudice, but afforded plaintiffs another opportunity to replead their fraud-based claims. The court entered an order administratively terminating all pending motions in this case to permit plaintiffs, both appearing pro se, an opportunity to obtain legal counsel as they had requested. More than 10 months have passed and neither plaintiff has entered an attorney’s appearance. The court denies all pending motions: plaintiffs’ motion for reconsideration, plaintiffs’ motion to re-open the case against defendant Vineland, plaintiffs’ motion for leave to file an amended complaint, and plaintiffs’ motion to put this matter on “hold,” The court dismisses the first amended complaint in its entirety with prejudice. [Filed Sept. 17, 2013.]
 
SECURITIES
50-7-1844 Braun v. Schwartz, U.S. Dist. Ct. (Salas, U.S.D.J.) (17 pp.) In this action asserting numerous state and federal securities fraud claims and torts arising out of defendants’ allegedly false representations in connection with an investment in a sports training and tournament park, the court grants defendants’ motions to dismiss the complaint, finding, inter alia, that plaintiff cannot allege that he was a passive investor under Howey and that his interests in the sports park are, therefore, not investment contracts and thus he has not pleaded sufficient facts to invoke the protections of the Securities Exchange Act, and declining to exercise supplemental jurisdiction over the state law causes of action. [Filed Sept. 30, 2013.]
 
50-7-1877 In re Schering-Plough Corp. Enhance Securities Litigation, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Applying the Gish factors, the court grants final approval of the settlements in In re Merck & Co., Vytorin/Zeita Securities Litigation and In re Schering-Plough Corp. Enhance Securities Litigation, finding that the settlements are fair, adequate and reasonable. Applying the Gunter factors and the Prudential factors, the court also approves and adopts the report and recommendation of the special masters regarding the award of attorney fees and expenses. [Filed Oct. 1, 2013.]
 
TAXATION
35-7-1845 McGinley v. United States, U.S. Dist. Ct. (Pisano, U.S.D.J.) (16 pp.) After filing a joint income tax return for tax year 2000, plaintiff and Kevin Kops divorced. The Superior Court entered a judgment requiring Kops to pay child support that attached as a lien against his half-interest in the former marital home. Shortly thereafter, the IRS filed a tax lien against plaintiff and Kops that attached to the residence. Plaintiff was awarded title to the house and the IRS then determined that she was an innocent spouse and released the tax lien as to her but not as to Kops. Plaintiff’s counsel diligently but unsuccessfully sought relief from the tax lien as to Kops against the residence. Plaintiff ultimately contracted to sell the house and at the last minute, the IRS required her to pay $102,929.68 in exchange for lifting the lien, issuing a certificate of discharge when she did so. Plaintiff filed a claim for a refund in that amount. After the IRS advised plaintiff’s counsel that the Probation Department would have to send a letter to the IRS requesting payment of the funds to the department, the Superior Court, Family Part entered an order requiring the IRS to pay funds into court pending a formal application by plaintiff for their release. When the IRS refused to pay, plaintiff filed this action. The court finds that Williams does not apply to save plaintiff’s claim and that she could have but failed to seek relief under §§ 6325(b)(4) and 7426(a)(4) and she has not carried her burden to show that the necessary elements for estoppel against the government have been met as she fails to specify how any misrepresentation prevented her from using the procedures of §§ 6325(b)(4) and 7426(a)(4) and then bringing an action under § 7426(a)(4) before the expiration of the 120-day limitations period. The court also finds that the reliance element has not been met. The court therefore finds that it lacks subject-matter jurisdiction and grants the government’s motion to dismiss. [Filed Sept. 27, 2013.]
 
TORTS
36-7-1828 B&M Auto Salvage and Towing, L.L.C. v. Township of Fairfield, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (20 pp.) In this action asserting claims arising out of defendant’s delay in issuing a local junkyard license that allegedly prevented plaintiffs’ closing on a contract to sell their junkyard, the court grants defendants’ motion for summary judgment. The negligence claim fails as it pertains to the failure to issue the license because public entitles and their employees are immune from negligence suits on that basis, and it fails as it pertains to the township’s hiring of the deputy clerk who allegedly was instrumental in the delay because there is no genuine dispute as to whether the town or its officers were aware of her alleged “dangerous attribute,” i.e., her alleged propensity to retaliation against people with whom she had personal conflicts. The due process claim fails because plaintiffs received the protections their particular situation demanded and defendants’ failure to follow the dictates of N.J.S.A. 39:11-5 could not have caused plaintiffs’ injury, i.e., the cancellation of their sale contract. The substantive due process claim fails because plaintiffs’ right to have their local business permit timely renewed is not a right protected by substantive due process. The tortious-interference claim fails because plaintiff voluntarily canceled his contract. [Filed Sept. 27, 2013.]
 
36-7-1846 Rodwell v. City of Newark, U.S. Dist. Ct. (Linares, U.S.D.J.) (30 pp.) In this 42 U.S.C. § 1983 action asserting numerous claims against Newark and various members of its police department arising out of an incident in which a gun was illegally discharged in plaintiff’s apartment and, after she allegedly became belligerent in response to police questioning, she was taken to police headquarters for further questioning where she and a detective became involved in a verbal and physical altercation leading to charges of disorderly conduct and resisting arrest, which were later dismissed, defendants move for summary judgment. Defendants’ motion for summary judgment is granted as to (1) all of plaintiff’s claims under New Jersey law; (2) all claims against Det. Armstead and Sgt. Ramsey in their individual capacities; (3) the conspiracy claim; and (4) plaintiff’s municipal liability claim to the extent that it is premised on a theory of respondeat superior. Defendants’ motion is denied as to (1) the federal claim for false imprisonment and false arrest against Det. Williams; (2) the federal claim for illegal seizure and use of force against Williams; (3) the municipal liability claim to the extent that it is premised on Newark’s alleged custom of deliberate indifference and on the deputy chief’s acceptance of the recommendation to exonerate Williams; and (4) the federal malicious-prosecution claim against Williams. To the extent that defendants move for summary judgment as to the illegal seizure and use of excessive force claim against Williams on qualified immunity grounds, the motion is denied. [Filed Sept. 27, 2013.]
 
TORTS—FRAUD
36-7-1878 The Prudential Ins. Co. of America v. Credit Suisse Securities (USA), L.L.C., U.S. Dist. Ct. (Hayden, U.S.D.J.) (38 pp.) Plaintiff and certain of its affiliated entities allege that defendants made material misrepresentations and omissions in connection with the sale of residential mortgage-backed securities (RMBS). They assert claims for New Jersey common-law fraud (both legal and equitable), fraudulent inducement, negligent misrepresentation, and violation of the New Jersey civil Racketeer Influenced and Corrupt Organization Act. Defendants move to dismiss the complaint pursuant to Rule 12(b)(6), arguing that plaintiffs have failed to plead a material misstatement or omission. The court denies defendants’ motion, concluding that, inter alia, the case is about specific statements made in specific offering documents about specific securities and plaintiffs have adequately pleaded all elements of a common-law fraud claim, aiding and abetting fraud, equitable fraud and negligent misrepresentation. The court also finds that plaintiffs have adequately pleaded a violation of the NJRICO statute by adequately pleading the existence of an enterprise, that the alleged conduct affected trade or commerce in New Jersey, and a predicate act, as well as a NJRICO conspiracy claim. [Filed Sept. 30, 2013.]
 
 
 

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