Jan. 22 to 29, 2014

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW
01-2-2628 In the Matter of the Suspension or Revocation of the License of Weber, D.D.S., App. Div. (per curiam) (41 pp.) Weber appeals from a final order of the State Board of Dentistry that revokes his license to practice dentistry and bars him from seeking reinstatement for a period of three years. In addition, the board’s order requires Weber to pay: within two months, restitution to specified patients; over a period of 10 years, $250,000, the aggregate of civil penalties for 56 violations; and over a period of 24 months, $160,286.06 in fees and costs. The amended complaint on which Weber was tried in the Office of Administrative Law alleged more than 100 violations in 26 counts involving 22 specific patients and three counts alleging violations related to Weber’s practice involving his obligations as a licensed dentist. The administrative law judge found and identified a total of 68 violations—three related to Weber’s practice in general and the remainder related to 18 specific patients. Weber objects to the ALJ’s findings with respect to several patients, noting that other doctors did all or some of the work. Weber’s effort to assign fault for the patients’ treatment to others is not supported by the record. The appellate panel affirms the order. [Decided Jan. 24, 2014.]
 
CONTRACTS—CONSUMER FRAUD
11-2-2629 Cayuga Properties, L.L.C. v. Pollard, App. Div. (per curiam) (11 pp.) Plaintiffs appeal from a provision of the Law Division’s order entering default judgment, which found no cause of action against defendant Walter Pollard. Plaintiffs’ grievance stems from a failed home-improvement contract between defendant Better Choice Construction, L.L.C., and plaintiff Cayuga Properties, L.L.C. The contract was negotiated and signed by Charles Toutant on behalf of Cayuga, and Pollard on behalf of Better Choice. Plaintiffs’ complaint alleged breach of contract, common-law fraud, violations of the Consumer Fraud Act (CFA), and unjust enrichment. At the first proof hearing, the only witness who testified was Toutant. Notwithstanding both defendants’ default status, and in the face of plaintiffs’ objection, the Law Division permitted Pollard and his nonparty spouse to address the court with affirmative evidence. At the end of the proceeding, the court dismissed the complaint against Better Choice because “Better Choice went through bankruptcy.” The court also dismissed all claims against Pollard, “because there is no proof that [Pollard] did anything other than in his capacity as an employee and officer of Better Choice.” On appeal, plaintiffs argue that the Law Division improperly allowed defendants to offer evidence and affirmative defenses during the proof hearing, and incorrectly failed to impose individual liability on Pollard under the CFA and common-law fraud theories. Concluding that the Law Division mistakenly abused its discretion in the manner of conducting the proof hearing and erroneously applied the law to the facts adduced at that hearing, the appellate panel reverses and remands for further proceedings. [Decided Jan. 24, 2014.]
 
CREDITORS’ AND DEBTORS’ RIGHTS—BANKING AND FINANCIAL INSTITUTIONS
15-2-2607 Kimmelman v. Kimmelman, App. Div. (per curiam) (9 pp.) In this action filed after defendant, plaintiff’s son, convinced her to refinance her co-op to provide him with needed funds on the promise that he would sign the note individually and make all the payments, she signed the loan documents, defendant defaulted on the payments, and the bank subsequently scheduled and then canceled the sale of the shares of stock securing the loan, plaintiff appeals from a final judgment dismissing with prejudice her claims for rescission and equitable fraud against defendant NCB Savings Bank, FSB, based on the bank’s failure to advise her that she was putting her collateral at risk because her son had misled her and that she had not signed the documents. The panel affirms, finding that the bank makes no affirmative claim for enforcement in this action, the trial judge’s findings that plaintiff had attended the closing and signed the documents is supported by sufficient credible evidence, and the trial judge was clear that he was not finding that the bank could enforce the security agreement but only that plaintiff had not succeeded in proving her claims for rescission and equitable fraud, and case law makes it plain that a signature is presumed valid until its alleged maker comes forward with proof that it is forged or unauthorized, which the judge found plaintiff had failed to do. [Decided Jan. 23, 2014.]
 
CRIMINAL LAW
14-2-2622 State v. Cushing, App. Div. (per curiam) (26 pp.) Pursuant to a plea agreement struck with the state after his motion to suppress was denied, defendant pleaded guilty to second-degree possession with intent to distribute more than 10 but less than 50 marijuana plants; second-degree possession with intent to distribute marijuana within 500 feet of a public park; third-degree possession with intent to distribute marijuana within 1,000 feet of a public school; and fourth-degree failure to register a change of employment as required by Megan’s Law. To the extent the state relied on the consent exception to the warrant requirement, the appellate panel finds defendant’s motion to suppress should have been granted. The appellate panel remands the matter to the trial court to conduct a hearing on whether the seizure of the marijuana plants and paraphernalia in defendant’s bedroom closet was lawful pursuant to an independent source, i.e., the search warrant actually secured by police. If defendant prevails and the evidence is suppressed, defendant’s guilty pleas shall be vacated. If the state prevails and the evidence is not suppressed, defendant’s conviction is affirmed, but the matter is remanded for resentencing. [Decided Jan. 23, 2014.]
 
14-2-2623 State v. Panichella, App. Div. (per curiam) (9 pp.) The state appeals from the Law Division’s order granting postconviction relief (PCR) to defendant. The order declared that defendant’s 1986 guilty plea to driving while intoxicated (DWI) “shall not be considered a prior conviction for the purposes of sentencing the defendant on any future” DWI offense. In State v. Laurick, the New Jersey Supreme Court held that, absent a waiver of the right to counsel, an uncounseled DWI guilty plea cannot be used to enhance the period of incarceration for future DWI convictions and that “the actual period of incarceration imposed may not exceed that for any counseled DWI convictions.” Here, although defendant certified that he was indigent at the time of his first plea, he failed to assert that he was never advised of his right to appointed counsel, alleging only that he cannot “remember” having been so advised. In addition, he does not articulate how he was prejudiced by the lack of counsel because he does not certify that he was not under the influence when he was driving and had the one-car accident, nor does he articulate any other colorable defense to the 1986 charge. These are not deficiencies that can be remedied at a plenary hearing. Consequently, defendant’s failure to present a prima facie case precludes relief under Laurick even if the petition had been timely filed. The appellate panel reverses and remands for entry of an order dismissing the petition. [Decided Jan. 22, 2014.]
 
11-2-2682 State v. Green, App. Div. (per curiam) (11 pp.) Defendant appeals from an order that denied his motion to compel the state to allow him to apply for admission into the pretrial intervention (PTI) program. The PTI program would not consider defendant for admission without the consent of the prosecutor because he faced a second-degree charge. Here, both the prosecutor and the PTI program provided reasons why defendant should be denied admission to the program. However, those statements cannot be considered the product of a consideration of the merits of defendant’s application simply because defendant was never permitted to submit an application that, as the trial court observed, he had the absolute right to do. The prosecutor’s exercise of a gatekeeper function, precluding defendant’s admission based on a vicinage policy amounts to a clear error in judgment that subverts the goals of the PTI program. Moreover, since defendant was not permitted to submit an application, his motion was not properly considered as an appeal from a rejection of his application. Therefore, the appellate panel reverses the order denying defendant’s motion to compel the state to allow him to apply for admission into the PTI program and remands so that he may file such an application. [Decided Jan. 29, 2014.]
 
EDUCATION LAW—CREDITORS’ AND DEBTORS’ RIGHTS
16-2-2608 New Jersey Higher Education Assistance Authority v. Amagsila, App. Div. (per curiam) (10 pp.) Defendant appeals from the May 11, 2012, grant of summary judgment to plaintiff in this action to recover the amounts due on student loans made to her and from the July 20, 2012, denial of her motion for reconsideration. Finding that defendant’s notice of appeal from the grant of summary judgment was filed out of time, and that the motion for reconsideration was filed more than 20 days after service of the summary judgment order, and that defendant’s failure to respond to the motion for summary judgment deprived the judge of the opportunity to address the bases of her argument in his original ruling, the panel declines to exercise its discretion to consider the merits of the May 11 order and dismisses her untimely appeal from that order. As to the July 20 order, the panel affirms the judge’s denial of reconsideration, finding no abuse of discretion where defendant’s failure to respond left the motion for summary judgment unopposed and the facts in plaintiff’s certification, which were sufficient to make summary judgment appropriate, were deemed admitted, and no abuse of discretion in the award of attorney fees where on each of the promissory notes defendant agreed to pay such fees incurred in collecting the loan and the judge could conclude that 22 percent is reasonable for attorney services. [Decided Jan. 23, 2014.]
 
FAMILY LAW
20-2-2609 Brown v. Brown, App. Div. (per curiam) (10 pp.) Defendant appeals from several orders setting his child-support obligations, including child-care expenses that defendant contends were not incurred, and ordering him to pay counsel fees and other expenses. The panel affirms substantially for the reasons expressed below, adding that N.J.S.A. 2A:17-56.23a provides that no payment or installment of an order for child support shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification and, therefore, defendant’s request for a retroactive modification of his support obligation was plainly barred and that the panel is not persuaded by defendant’s claim that plaintiff fraudulently withheld her work-related child-care expenses from him or that any equities exist that would require deviation from the clear mandate of the anti-retroactivity law. [Decided Jan. 22, 2014.]
 
20-2-2610 Kaller v. Gogan, App. Div. (per curiam) (10 pp.) Defendant appeals from a postjudgment order modifying his alimony obligation and from an order denying his motion for reconsideration of the modified amount. Although the judge set forth the standard for modifying an alimony obligation and set forth his conclusion, he did not set forth findings of fact and conclusions of law explaining the basis for his determination, so the panel remands so that the judge can articulate the factual findings and reasons underlying his orders. [Decided Jan. 22, 2014.]
 
20-2-2611 New Jersey Division of Youth and Family Services v. M.E., App. Div. (per curiam) (8 pp.) A Title Nine fact-finding hearing in this matter resulted in a determination that one child, 5-year-old E.V. (Evelyn), was psychologically abused by her mother, defendant M.E. (Melody), as a result of witnessing domestic violence in the home. The appellate panel vacates the order under review because the judge mistakenly relied on Evelyn’s uncorroborated out-of-court statement—in violation of N.J.S.A. 9:6-8.46(a)(4)—of an alleged domestic-violence event during which the child asserted Melody wielded a knife. The matter is remanded to the trial judge for reconsideration of the evidence in the record without reliance on Evelyn’s out-of-court statement that, on one occasion, Melody threatened her boyfriend with a knife. [Decided Jan. 23, 2014.]
 
20-2-2612 S.C. v. A.M., App. Div. (per curiam) (20 pp.) Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act. He contends that the trial court violated his due process rights by rushing into a final hearing without giving him time to seek legal advice, and also that plaintiff failed to establish predicate acts of domestic violence or a need for a restraining order. Having reviewed the entire record and having found it to contain ambiguous indications of defendant’s preparedness and willingness to proceed to a final hearing on the first business day after the complaint was filed, the appellate panel concludes that defendant is entitled to a new trial. A new trial will allow defendant to prepare and present his defenses fully to the court, and it should not cause any prejudice to plaintiff, who has received the protection of a restraining order since the time her complaint was filed. [Decided Jan. 23, 2014.]
 
20-2-2613 Sharra v. Sharra, App. Div. (per curiam) (9 pp.) Defendant appeals from the Family Part’s order denying his application to modify his child-support obligation and allocate a credit in his favor in light of his children’s receipt of derivative Social Security disability benefits occasioned by defendant’s disability. Defendant claims that he is entitled to a credit pursuant to Diehl v. Diehl, consisting of his children’s aggregate lump sum and monthly Social Security disability payments from Aug. 1, 2010, until Dec. 11, 2011. During that same period, defendant’s aggregate child-support obligation was $18,280. Notwithstanding that the $18,280 was paid at a time when defendant was presumptively unable to pursue gainful employment, the Family Part concluded that defendant had sufficient earnings—including pension payments, unemployment benefits, and salary—in 2010 to compel denial of a credit on equitable grounds. Further, although the Family Part retroactively modified defendant’s child support for several months, the court equitably considered the allocation of Social Security disability benefits during that period, and the appellate panel finds no inequity in denying a prospective credit for the children’s separate receipt of Social Security disability benefits. The panel affirms, concluding that the Family Part’s treatment of defendant’s situation, including the children’s receipt of derivative benefits, did not go “so wide of the mark that a mistake must have been made.” [Decided Jan. 22, 2014.]
 
20-2-2614 Tafaro v. Tafaro, App. Div. (per curiam) (3 pp.) Defendant appeals from orders denying reconsideration of an order setting a temporary level of child support without prejudice to a plenary hearing and from an order denying his application to retroactively adjust child support from 2007 when the parties’ two children entered college. The court declines to consider the temporary order because defendant did not file a motion for leave to appeal and it finds no reason to review the interlocutory order in the interest of justice. Finding that it had previously found no merit in defendant’s claim that the motion judge should have granted his application for a retroactive reduction in child support, the panel says the “law of the case” doctrine operates to avoid relitigation of the same issue before the same court and defendant’s recourse is to the Supreme Court. [Decided Jan. 22, 2014.]
 
20-2-2630 M.R. v. W.R., App. Div. (per curiam) (7 pp.) Defendant appeals from the final restraining order entered pursuant to the Prevention of Domestic Violence Act after the court found that she had committed harassment and assault against plaintiff. The panel affirms, finding that plaintiff’s testimony that defendant on two occasions punched him twice in the chest, causing pain, was sufficient for a finding of simple assault; the finding of harassment was supported by the evidence that defendant had the purpose to harass and that her communications were offensively coarse and likely to cause annoyance and alarm; defendant subjected plaintiff to striking and other offensive touching and her course of conduct was intended to alarm and seriously annoy plaintiff; there is no basis for disturbing the judge’s assessment finding plaintiff credible; and the judge specifically considered and determined that an FRO was needed to protect plaintiff from immediate danger and prevent future abuse in light of the acts and history of domestic violence. The panel also holds that the judge did not err in declining to recuse himself where he had previously adjudicated the grandparents’ visitation motion against both parents. [Decided Jan. 24, 2014.]
 
20-2-2645 Beller v. Beller, App. Div. (per curiam) (7 pp.) Plaintiff-father appeals from the Family Part order granting defendant-mother’s motion to move the parties’ two children from the Denville school district, where the father resides, and enroll them in the Roxbury school district, to where the mother had moved. The panel distinguishes Levine, on which the father relies, and affirms, finding that the decision that transferring the children was in their best interests is supported by adequate, substantial and credible evidence, noting that the only expert to testify favored enrolling the children in Roxbury primarily because defendant’s relationship with the Denville school personnel had deteriorated as a result of plaintiff’s counsel’s letter claiming that she had psychiatric issues and that the court had based its decision in part of its in camera interviews with the children. [Decided Jan. 27, 2014.]
 
20-2-2646 L.T. v. T.C., App. Div. (per curiam) (18 pp.) Defendant appeals from a final restraining order (FRO) under the Protection Against Domestic Violence Act. Defendant’s former girlfriend obtained the order after the court found defendant committed acts of harassment and stalking against her. The appellate panel reverses the FRO, reinstates the temporary restraining order, and remands to the trial court for additional findings of fact and conclusions of law regarding the allegation that defendant committed the predicate act of harassment, and whether plaintiff needs the protection of a restraining order, consistent with Silver v. Silver. [Decided Jan. 27, 2014.]
 
20-2-2658 Mulholland v. Khan, App. Div. (per curiam) (14 pp.) Plaintiff and defendant have a 9-year-old daughter from their prior relationship. Plaintiff appeals from the Family Part order denying her permission to remove the child from New Jersey to Albany, N.Y. The appellate panel concludes that the trial court mistakenly exercised its discretion in failing to consider plaintiff’s proposed parenting plan with her initial removal application. Rather than rejecting this evidence entirely, the court more appropriately should have adjourned the hearing briefly to allow for its review and any response by defendant. Alternatively, since plaintiff’s second application was filed in close proximity to the first, the court should have considered plaintiff’s parenting plan anew at the second hearing, rather than analyzing it under the standards applicable to a motion for reconsideration. Even if the court was correct in treating plaintiff’s second removal application as a motion for reconsideration, reconsideration was warranted. Plaintiff’s visitation proposal constituted probative, competent evidence under Baures v. Baures that the court did not consider in its initial ruling. Also, plaintiff submitted documentation that had not been available at the time she filed her first application. Further, had plaintiff’s visitation plan properly been considered, her proofs were sufficient to meet her initial burden to establish prima facie that she had a good-faith reason for the move, and that it would not be inimical to the child’s interests. Under Baures, and contrary to the trial court’s ruling, the burden of going forward should have shifted to defendant to demonstrate that plaintiff’s application was not made in good faith, or that relocation would be inimical to the child’s best interests. The panel reverses the court’s denial of plaintiff’s removal application and remands to the trial court. [Decided Jan. 28, 2014.]
 
20-2-2660 S.D. v. M.J.R., App. Div. (per curiam) (13 pp.) Defendant appeals from the denial of his motion for reconsideration of the denial of his motion to vacate a final restraining order issued pursuant to the Prevention of Domestic Violence Act. The panel affirms, holding that it need not address whether the judge erred in finding that the reconsideration motion was untimely since, assuming that the motion was timely, defendant failed to establish good cause to dissolve the FRO. The judge carefully considered all the Cargano factors and adequately explained her reasoning as to each. The panel notes that although the allegedly new exculpatory evidence cited by defendant may have contradicted plaintiff’s version of events, it would do so only in marginal fashion and its limited impeachment value certainly would not have likely changed the result of the domestic-violence trial in which the judge concluded that defendant had committed numerous predicate acts of domestic violence against plaintiff. Thus, defendant’s motion seeking relief under Rule 4:50-1 was properly denied. [Decided Jan. 28, 2014.]
 
LABOR AND EMPLOYMENT
25-2-2617 County of Warren v. Policemen’s Benevolent Association Local #331, App. Div. (Accurso, J.A.D.) (10 pp.) Defendant Policemen’s Benevolent Association Local #331 (PBA) appeals from a final order of the Law Division denying its motion to confirm an arbitration award and granting the cross-motion filed by plaintiff Warren County to vacate the award. In the execution of a collective-negotiations agreement (CNA), among the issues negotiated by the parties was county-paid premiums for retiree health benefits. The PBA filed a grievance with the Public Employment Relations Commission (PERC) contending that the county breached the CNA by refusing to extend retiree health benefits to PBA members having 25 years of accredited Police and Firefighters Retirement System (PFRS) pension time but who did not meet the other conditions imposed by the CNA. The county denied the grievance that it had failed to pay retiree health benefits to any retiree eligible for such benefits under the CNA. The arbitrator rejected the county’s argument that the grievance was time-barred. The appellate panel finds that Judge O’Connor properly vacated the arbitration award. Having found the grievance untimely, the arbitrator “read into” the CNA a provision not found there, that the 10-day period for filing a grievance is waived if the county fails to object promptly to the untimely filing. In light of the express terms of the CNA regarding the time lines for the filing of a grievance and the requirement that extensions of such periods be by mutual consent, the arbitrator’s interpretation is not reasonably debatable. [Decided Jan. 22, 2014.]
 
25-2-2661 Byrd v. Board of Review, App. Div. (per curiam) (8 pp.) Byrd, a seasonal truck driver for respondent Johnson Farms, appeals from a determination of the Department of Labor’s Board of Review, which affirmed a decision by the Appeal Tribunal for the Division of Unemployment and Disability Insurance that, in turn, affirmed a determination of the deputy director of the division finding Byrd liable for a refund of $10,290 in overpaid unemployment benefits that he received through no fault of his own, as the result of an admitted agency error. He argues that he is entitled to a waiver of repayment, given the hardship that repayment would cause him. Because neither the Appeal Tribunal nor the board addressed the issue of Byrd’s entitlement to a waiver, the panel remands to the director so that he can properly consider Byrd’s application. [Decided Jan. 28, 2014.]
 
25-2-2662 Cimpean v. Board of Review, App. Div. (per curiam) (6 pp.) Cimpean appeals from the decision of the Board of Review denying his application to receive unemployment compensation benefits because he had voluntarily left his position as a financial analyst at DG3 North America without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). The panel affirms, finding that his decision to resign—after his employer implemented a policy prioritizing seating on the free company shuttle to union-affiliated employees, resulting in plaintiff-nonunion member having to find other means of transportation that would enable him to report to work on time—was a voluntary choice on his part, disqualifying him for unemployment compensation benefits. [Decided Jan. 28, 2014.]
 
25-2-2663 McDonough v. Board of Review, App. Div. (per curiam) (7 pp.) McDonough appeals from the final decision of the Board of Review, which affirmed the decision of the Appeal Tribunal that appellant was disqualified from receiving unemployment compensation benefits because she left her employment at respondent Unity Bank voluntarily without good cause attributable to the work. McDonough verbally resigned from Unity Bank. Following an exit interview, McDonough sent an email to her supervisor confirming her resignation and citing dissatisfaction and frustration with her position as her reasons for resigning. Here, appellant left her job because she was dissatisfied. This was a personal reason, not a reason so compelling that appellant had no choice but to leave her job. The board’s determination that appellant was not terminated but rather left work voluntarily without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious or unreasonable. [Decided Jan. 28, 2014.]
 
25-2-2664 Stolba v. Board of Review, App. Div. (per curiam) (6 pp.) Stolba appeals from the final decision of the Board of Review that affirmed the decision of the Appeal Tribunal finding Stolba ineligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. Stolba was employed by Gentle Dental Care (GDC), when she took time off to care for family members. Stolba was out of work for six weeks. When she attempted to return to work, GDC notified her that it had filled her position. The tribunal noted that an employee who leaves work pursuant to New Jersey’s Family Leave Act is required to obtain temporary disability benefits concurrently with any approved leave. Stolba obtained those benefits, but GDC was not required by statute to hold her position open for six weeks. Knowing GDC would only hold her position open for three weeks, Stolba did not return to work for six weeks. The tribunal determined her decision was “personal” and not connected to her employment and as a result Stolba was not eligible for unemployment benefits. Stolba asserted that in the past GDC held her position open after her Family Leave Act benefits were exhausted. She contends that based on these prior experiences, and other assurances by GDC, she believed she could still return to her position after six weeks. The tribunal, and in turn the board, found that Stolba was aware that GDC was not required to keep her position open for six weeks. This conclusion was reached after assessing the credibility of Stolba’s testimony, and is entitled to deference. The board’s decision to deny Stolba unemployment benefits was not “arbitrary, capricious or unreasonable” and is affirmed. [Decided Jan. 28, 2014.]
 
25-2-2676 Sanders v. Board of Review, App. Div. (per curiam) (10 pp.) Claimant Viola Sanders appeals from the final decision of the Board of Review, which deemed her ineligible for benefits based on the administrative determination that she was terminated from her job for severe misconduct pursuant to N.J.S.A. 43:21-5(b). The primary question is whether Sanders’ reinstatement by her employer “rescinded” her discharge, thus rendering her eligible to receive unemployment benefits under the statute. Finding that under the somewhat unique circumstances of this case that it did, the appellate panel reverses and remands for calculation and payment of those benefits. Although the “reinstatement” provision contained within N.J.S.A. 43:21-5(b) obligates claimants who were discharged due to misconduct, and then restored with back pay, to return any unemployment benefits received, there is nothing in the statute that renders claimants who were restored without back pay ineligible for benefits. Moreover, New Jersey Transit reinstated Sanders’ employment as the result of an arbitrated grievance. Although many of Sanders’ past incidents of tardiness may have been inexcusable, as the board found, it is apparent that NJT recognized that the Nov. 14, 2011, traffic accident that led to her lateness and initial termination was, in fact, excusable and beyond her control. Thus, NJT acknowledged the “unique and extenuating circumstances,” reinstated Sanders’ employment, and ceased opposing her application for benefits. NJT thereby effectively “rescinded” Sanders’ discharge. Consequently, her disqualification for benefits due to misconduct under N.J.S.A. 43:21-5(b) did not apply. [Decided Jan. 29, 2014.]
 
25-2-2677 Wojtowicz v. New Jersey, App. Div. (per curiam) (17 pp.) Plaintiff, a social worker employed by the Juvenile Justice Commission (JJC), appeals from the order granting summary judgment and dismissing as time-barred her complaint alleging she was subject to a hostile work environment and retaliation, in violation of the New Jersey Law Against Discrimination (LAD). Plaintiff has worked at the JJC’s Pinelands Residential Community Home since April 2004. In May 2005, she reported to a supervisor that she witnessed a teacher, Kevin Ciser, inappropriately shout and curse at residents. Plaintiff alleged that Ciser thereafter subjected her to a series of inappropriate comments, actions or demonstrations that continued as late as April 2007, at which point he was transferred. During the two-year period, management repeatedly met with Ciser, and with plaintiff, to address her complaints about his behavior. Management implemented a “no talk” order, barring Ciser from speaking to plaintiff on other than a professional basis. This case is not an example of a failed investigation that constitutes part of a continuing violation. JJC officials imposed a no-talk order, issued an unfavorable “letter of counsel,” and lodged formal disciplinary charges against Ciser. Moreover, the hostile work environment, and Ciser’s campaign of retaliation, ceased when Ciser was transferred in May 2007. Any injury from the allegedly delayed or ineffectual investigation, which concluded within the two-year period prior to plaintiff’s complaint, does not constitute a basis for a cause of action, nor does it reach back and “sweep in” Ciser’s conduct otherwise outside the limitations period. [Decided Jan. 29, 2014.]
 
LABOR AND EMPLOYMENT—WHISTLEBLOWER LAW
25-2-2647 Dukin v. Mount Olive Township Board of Education, App. Div. (per curiam) (16 pp.) Plaintiff Robert Dukin, an auto mechanic who worked for the Mount Olive Township Board of Education (MOBE), appeals from an order dismissing his claim pursuant to the Conscientious Employee Protection Act (CEPA), and granting summary judgment to defendants. Because Dukin demonstrated a nexus between the adverse employment action of nonrenewal of his annual contract and his complaints about both the safety of a school bus and the working conditions in the garage, the appellate panel reverses. The record is replete with direct and circumstantial evidence that Dukin’s contract nonrenewal was directly related to his complaints to the Motor Vehicle Commission (MVC) and the New Jersey Office of Public Employees Occupational Safety and Health Department (PEOSH). Further, Dukin has satisfied his burden to rebut defendant’s proffer of nondiscriminatory action. The panel also reverses the motion judge’s determination to dismiss the count in the complaint seeking punitive damages. [Decided Jan. 27, 2014.]
 
LAND USE AND PLANNING
26-3-2631 Arsalan v. Toms River Twp. Planning Bd., Law Div., Ocean Co. (Grasso, A.J.S.C.) (11 pp.) In this action in lieu of prerogative writs, plaintiffs challenge the planning board’s grant of rear setback variance relief to defendant-property developer to build 30 feet from the rear property line where 60 feet is required, in connection with the developer’s application to demolish an existing vacant gas station and build a structure that would house a 7-Eleven convenience store, a permitted use. The court dismisses the complaint, finding that the record indicates that the board did not act arbitrarily, capriciously or unreasonably in granting the rear setback variance pursuant to N.J.S.A. 40:55D-70(c)(2), where, among other things, it found that the proposal to build within the setback was a better zoning alternative for the property, it did not advance only the applicant’s interests, it would benefit the public by removing an eyesore and replacing it with a new business, and it would avoid any substantial impact on the residential homes. [Decided Jan. 14, 2014.]
 
LANDLORD/TENANT LAW
27-2-2619 Bhawanidin v. Dhodi, App. Div. (per curiam) (10 pp.) Following a bench trial in the Special Civil Part, Judge Bachmann found defendant-landlord A.S. Dhodi wrongfully withheld monies from plaintiff-tenant Tajwatie Bhawanidin’s security deposit. Specifically, the judge found defendant impermissibly charged plaintiff for the repair of hardwood floors, a general cleaning fee, and a management fee for such cleaning. The judge further denied defendant’s counterclaim for payment of an additional month’s rent for plaintiff’s failure to give sufficient notice of nonrenewal of the lease, as well as an “extra tenant” fee and the cost of repairing the range. Accordingly, the judge entered judgment in plaintiff’s favor, and ordered defendant to pay damages of $2,304.86, plus costs of suit. The judge also dismissed defendant’s counterclaim. Defendant appeals. The record amply supports Judge Bachmann’s factual findings, based heavily on his assessment of the parties’ credibility, as well as his legal conclusions. Moreover, there is no basis to second-guess the judge’s rulings with respect to the complaint and counterclaim. Accordingly, the appellate panel affirms. [Decided Jan. 23, 2014.]
 
PUBLIC RECORDS
52-3-2665 Paff v. Egg Harbor Township, Law Div., Atlantic Co. (Mendez, A.J.S.C.) (3 pp.) Defendant Egg Harbor Police Department shall release to plaintiff John Paff a copy of the report compiled by Sgt. Hughes containing redactions as specified to protect Officer Lancaster’s privacy interests. Defendant’s request for additional specified redactions, including the name of the dispatcher, is denied. The information does not fit within the exemptions to the Open Public Records Act. In addition, in balancing the factors in Loigman v. Kimmelman, disclosure is appropriate pursuant to the common-law right to know. [Decided Jan. 13, 2014.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-2620 Mariner’s Bank v. 4921 Bergenline Corp., App. Div. (per curiam) (17 pp.) Defendants 4921 Bergenline Corp. and Medardo Perez, Bergenline’s sole shareholder, appeal from the trial court’s order denying their motion to vacate an earlier order dismissing their counterclaim and third-party complaint filed in response to a foreclosure action in Hudson County. The court held defendants’ claims were barred by the doctrine of res judicata, as they were essentially the same claims that the Chancery Division in Bergen County dismissed in a final, unappealed order. The court also held that defendants lacked standing to assert their claims, which belonged to a separate business entity, RC Associates, a limited liability company of which Perez is one of two members. The panel affirms, substantially for the reasons expressed below. [Decided Jan. 23, 2014.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE—CONDOMINIUMS
34-2-2678 Apple Ridge Condominium Association v. Rodgers, App. Div. (per curiam) (10 pp.) Defendant-condominium owners, sued by the association for nonpayment of their maintenance fees, appeal from the order for summary judgment dismissing their counterclaim alleging that the association had engaged in bad-faith conduct by its involvement in a lawsuit filed by a group of fee-simple owners which litigation had caused defendants to be rejected for a reverse mortgage loan on their condo. The panel affirms because defendants developed no admissible evidence that any wrongful conduct by the association was the cause of their inability to obtain reverse mortgage financing. Defendants, who relied only on the conclusory testimony of Charles Rodgers, a retired attorney, to prove that the association acted in bad faith in the litigation, presented no documentary or other factual evidence that the association’s board engaged in fraud, self-dealing or unconscionable conduct; the association cannot be liable for damaging individual unit owners simply because its actions during litigation on behalf of all members may have affected some of the members unfavorably; and, where defendants provided no foundation evidence or discovery establishing Rodgers’ qualifications to render an expert opinion about why a mortgage lender would not grant him and his wife a reverse mortgage, defendants had no admissible evidence that the actions of the association were the cause of their failure to obtain a reverse mortgage. [Decided Jan. 29, 2014.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE—CONTRACTS
34-2-2632 City of Gloucester City v. Beazer Homes Corp., App. Div. (per curiam) (15 pp.) This action arises out of a failed redevelopment plan and sales agreement between the parties under which plaintiff agreed to remediate the land parcel at issue and defendant agreed to purchase it and reimburse plaintiff for its remediation costs. Plaintiff appeals from the grant of defendant’s motion for summary judgment in this action seeking reimbursement for remediation expenses after defendant’s alleged breach of the parties’ redevelopment and sales agreements. Construing the terms of the two agreements, both of which made time of the essence, the panel affirms, holding that plaintiff’s failure to fulfill the conditions precedent to the sale—obtaining a no-further-action letter from the Department of Environmental Protection and all final unappealable governmental approvals—relieved defendant of the obligation to close, and in the absence of the fulfillment of those conditions, the only reasonable interpretation of the deadlines in the contracts are that they expired by their own terms and that defendant therefore had no obligation to reimburse plaintiff. [Decided Jan. 23, 2014.]
 
TAXATION
35-5-2666 Surf Corporation v. City of North Wildwood, Tax Ct. (DeAlmeida, J.T.C.) (26 pp.) This is the court’s opinion after trial in these matters challenging the assessments on real property in North Wildwood for tax years 2009 and 2010. One assessment is in excess of the statutory direct-appeal threshold and one is below that threshold. The parties briefed the legal question of whether the two parcels are in common ownership so that the assessments may be combined in one appeal. Finding the parcels are not in common ownership, the court dismisses the complaint with respect to one parcel under appeal where the only named plaintiff is Surf Corp., which does not own the parcel. Thus, the court lacks jurisdiction over the appeal arising from that parcel’s assessment. The court lowers the assessment on the other parcel for both tax years. [Decided Jan. 24, 2014.]
 
35-5-2679 Larsen v. Township of Wall, Tax Ct. (Sundar, J.T.C.) (11 pp.) This is the court’s decision relating to plaintiff’s challenge to the local property tax assessment for tax year 2013 on the subject property located in Wall. Plaintiff proferred two methods of computing the value conclusion of the subject property: (i) a per-square-foot calculation abstracted from the sale of certain comparables as applied to the gross living area of the subject property as adjusted for location and riparian rights; or (ii) an abstracted land value with adjustments for lot size and location. The court agrees with the township that plaintiff failed to overcome the presumptive correctness of the assessment because she failed to prove the comparability of the sales to the subject property, and because her adjustments lack any basis or objective market-based support. The court therefore affirms the county board’s judgment. [Decided Jan. 24, 2014.]
 
TRUSTS AND ESTATES
38-2-2621 DeBaRon Associates v. Van Slooten, App. Div. (per curiam) (14 pp.) Ronald Durante, Debra Durante Scheibel, and Barbara Van Slooten are the children of John and Helen Durante. In 1977, as part of John Durante’s estate planning, he formed a partnership, DeBaRon Associates, to develop and manage real estate. Following John’s death, a judgment appointing a receiver and ordering DeBaRon’s dissolution was entered. Litigation followed in New Jersey and New York. Here, Ronald Durante appeals from portions of a Law Division order holding him in contempt of an order compelling him to pay certain counsel fees and costs. Durante also appeals from two orders ordering him to pay $14,264.72 to plaintiff DeBaRon, as reimbursement for payments made to Botta & Associates and Hacker Murphy, LLP, and $6,279.30 to McElroy, Deutsch, Mulvaney & Carpenter, counsel for respondent Van Slooten. As the record is completely devoid of any findings of fact by the Law Division judge establishing contumacious behavior by Durante, the appellate panel vacates the three orders and remands for an evidentiary hearing. [Decided Jan. 23, 2014.]
 
WORKERS’ COMPENSATION
39-2-2680 Beausejour v. Chamberlin Plumbing & Heating Inc., App. Div. (per curiam) (11 pp.) Appellant appeals from the judgments of the Division of Workers’ Compensation dismissing his claim petition against Chamberlin for a preexisting lower-back condition allegedly worsened or aggravated by a work-related injury. The panel affirms, finding that where appellant’s treating physician testified that his back issues were preexisting and not caused or exacerbated by the most recent accident and the judge found that testimony to be credible, there was sufficient credible evidence in the record to support the workers’ compensation judge’s conclusion that appellant failed to meet his burden of proof to establish a lumbar causal relationship to the accident, notwithstanding the conclusion of appellant’s orthopedic expert that the accident aggravated and exacerbated his preexisting lumbar degenerative disc disease. [Decided Jan. 29, 2014.]
 
FEDERAL COURT CASES
 
ADMINISTRATIVE LAW
01-7-2634 Alvarez v. Commissioner of Social Security, U.S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Plaintiff appeals the final decision of the commissioner of the Social Security Administration determining that she was not disabled under the Social Security Act. This appeal arises from plaintiff’s application for disability insurance and supplemental security income benefits, alleging disability beginning Oct. 16, 2008. Plaintiff appeals on several grounds, but the court need reach only the argument for reversal that succeeds: at step five, the hypothetical presented by the administrative law judge to the vocational expert failed to comport with the holding of Burns v. Barnhart. Plaintiff argues persuasively that the ALJ here made the same error that the Third Circuit identified and found a sufficient ground for reversal in Burns. The court finds that there exists in the record medically undisputed evidence of borderline intellectual functioning that was not included in the hypothetical question to the vocational expert. The court is left with the definite sense that, had the ALJ made more specific reference to the limitations in plaintiff’s intellectual functioning, the vocational expert’s answer might well have been different. Pursuant to Burns, the vocational expert’s response is not considered substantial evidence. Thus, the commissioner’s determination at step five is not supported by substantial evidence. The decision is vacated. This case is remanded to the commissioner for further proceedings. [Filed Nov. 21, 2013.]
 
01-7-2668 Schmidt v. Commissioner of Social Security, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (16 pp.) Schmidt appeals from the final administrative decision of the commissioner of the Social Security Administration with respect to an administrative law judge’s (ALJ) denial of his claim for Social Security Disability Insurance Benefits (SSDI). The court finds that substantial evidence does not support the ALJ’s decision and reverses and remands this matter to the ALJ. The ALJ here erred by relying exclusively on the grids although he found that Schmidt had exertional and nonexertional limitations. The Third Circuit was clear in Sykes v. Apfel that in such a situation, the ALJ cannot rely exclusively on the grids but must elicit additional evidence. On remand, should the ALJ again determine that Schmidt had exertional and nonexertional limitations, he must conduct step five of the sequential analysis in accordance with Sykes. [Filed Nov. 25, 2013.]
 
ADMINISTRATIVE LAW—SOCIAL SECURITY
01-7-2649 St. Jean v. Commissioner of Social Security, U.S. Dist. Ct. (Simandle, U.S.D.J.) (23 pp.) Plaintiff, who suffers from multiple medical conditions, including hepatitis C, discogenic and degenerative disorders of the back, affective mood disorders, anxiety and arthritis, seeks review of a decision of the commissioner of the Social Security Administration granting her application for supplemental security income benefits under Title XVI of the Social Security Act for the period of Sept. 23, 2009, through Sept. 19, 2011, but ruling that her disability ended on Sept. 20, 2011, due to medical improvement. The court remands the matter to the administrative law judge for further proceedings, finding that the ALJ lacked substantial evidence for his residual functional capacity (RFC) determination that plaintiff had no bimanual dexterity limitations as of Sept. 20, 2011, and therefore was not disabled as of that date. [Filed Dec. 30, 2013.]
 
BANKRUPTCY
42-7-2650 In re Dwek, U.S. Dist. Ct. (Pisano, U.S.D.J.) (20 pp.) Before the court is an appeal from a bankruptcy court order denying the motion for partial summary judgment filed by defendants Kenneth Cayre, KLCC Investments, L.L.C., and the KLC Foundation (the Cayre entities). The bankruptcy court found that the Cayre entities’ motion, brought against intervenor-defendant D and D Trust (D&D), was procedurally improper because D&D’s claims in the adversary proceeding had already been dismissed and D&D’s involvement in the adversary proceeding had been terminated. This appeal arises out of a complex set of facts surrounding Solomon Dwek, the debtor in the underlying bankruptcy action, and the current ownership of, and security interests in, certain security instruments (the securities) that he deposited into an account with Citigroup Global Markets Inc. KLCC and Citigroup executed a control agreement (the control agreement) related to the Dwek account that designated KLCC as a secured party. D&D contends that KLCC never perfected a security interest in the Dwek account because the funds that were transferred to Dwek came not from a KLCC account but from Kenneth Cayre’s personal account. It also argues Dwek never incurred a debt in a manner that would give KLCC a valid security interest in the Dwek account because the real estate transaction contemplated by the control agreement never took place. The court finds neither res judicata nor judicial estoppel bar D&D from asserting a right to the securities, and will not enter summary judgment for the Cayre entities on this basis. The court will also deny summary judgment on the issue of D&D’s purported security interest, because a genuine issue of material fact exists as to the description of collateral in the pledge and security agreement. [Filed Nov. 27, 2013.]
 
CIVIL PROCEDURE
07-8-2635 El v. Wehling, Third Cir. (per curiam) (5 pp.) Pro se appellant appeals from the district court’s denial of his motion to reopen and for leave to file a fourth amended complaint. Finding that it cannot agree that appellant’s document titled “Amended Complaint” does not satisfy the requirements of Rule 8(a)(2), where he has asserted several claims of malicious prosecution and conspiracy to commit civil rights violations and each count sets forth the supporting facts and the defendants against whom the count is asserted, and where a liberal reading of the amended complaint reveals that he is also raising claims of unlawful search and seizure and illegal arrest, the Third Circuit summarily vacates the district court’s judgment and remands for further proceedings. [Filed Dec. 27, 2013.]
 
CIVIL PROCEDURE—CLASS ACTIONS
07-7-2636 A&L Industries Inc. d/b/a Ace Powder Coating v. P. Cipollini Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) On Oct. 2, 2013, the court entered an order granting a motion for class certification filed by plaintiff A&L Industries Inc. The court’s order certified as a class all persons who received a certain fax that allegedly violates the Telephone Consumer Protection Act (TCPA). In opposition to plaintiff’s motion, defendant P. Cipollini Inc. made a single argument—that this court follow Local Baking Products v. Kosher Bagel Munch Inc. and conclude that a Rule 23 class action is not a superior way to adjudicate a TCPA lawsuit. The court rejected this argument and, after conducting a full Rule 23 analysis, certified the plaintiff class. Defendant has now moved for reconsideration. Initially, the court will not credit the arguments that defendant raises for the first time in this motion, arguments that challenge the adequacy of both the named plaintiff and lead counsel to represent the putative class, and question whether that class is ascertainable. The remainder of defendant’s arguments amount to nothing more than disagreement with the analysis applied by the court in its opinion, and as such do not present a basis on which to grant reconsideration. Defendant’s motion is denied. [Filed Nov. 21, 2013.]
 
CIVIL RIGHTS
46-7-2669 Suchocki v. Gilcrest, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (21 pp.) In this 42 U.S.C. § 1983 action alleging the defendants Gilcrest, the Paulsboro Police Department and the city of Paulsboro violated plaintiff’s civil rights during a traffic stop that led to his arrest and later the dismissal of the charges, the court grants defendants’ motion for summary judgment, holding that the claim of false arrest fails because Gilcrest had probable cause to arrest Suchocki for harassment and obstructing a law enforcement officer’s ability to carry out his duties; the claim for denial of the right to counsel fails because, while the record contains no evidence about Suchocki’s Miranda rights and whether Gilcrest properly apprised him of the right to counsel while in custody, § 1983 does not permit the recovery of money damages for a violation, even if one had occurred; the police department is granted summary judgment on the § 1983 claim because, as an arm of the municipality, it is not a proper defendant; the § 1983 claim against the municipality based on failure to train fails because Suchocki cannot show a constitutional injury sufficient to satisfy the causation element of a failure-to-train claim; the claim against the municipality based on failure to discipline its officers fails because there is no evidentiary support suggesting Gilcrest’s prior civilian complaints deserved discipline and that those prior instances were analogous to any alleged deprivation of Suchocki’s constitutional rights and the number of civilian complaints against Gilcrest alone cannot sustain municipal liability. [Filed Dec. 30, 2013.]
 
COMMUNICATIONS AND MEDIA LAW
57-7-2624 City Select Auto Sales Inc. v. David Randall Associates, U.S. Dist. Ct. (Simandle, U.S.D.J.) (62 pp.) In this putative class action brought under the Telephone Consumer Protection Act on behalf of persons who have received unsolicited fax advertisements from defendant, a Pennsylvania-based roofing contractor that had contracted with B2B to send advertisements on rainy days to persons and entities located in specific zip codes, plaintiff has filed a renewed motion for class certification. The principal issues are whether plaintiff’s counsel has behaved unethically such that they are inadequate class counsel and whether plaintiff is an adequate class representative. The court finds that the B2B transmission reports for the faxes at issue can be used to identify the fax machines to which the advertisements were successfully sent and the fact that plaintiff’s machine is on the listing of successful transmissions is strong evidence that plaintiff received, and thus was harmed by, the unsolicited faxes, which is sufficient to confer standing, and that plaintiff has satisfied the numerosity, typicality, commonality and predominance requirements, and it grants the certification motion. The court then holds that plaintiff is an adequate class representative, finding no conflict of interest between plaintiff and other class members and that plaintiff possesses the minimum degree of knowledge necessary to meet the adequacy standard. The court also finds that plaintiff’s proposed class counsel are experienced lawyers who will adequately represent the class; the provision in the retainer agreement whereby plaintiffs agree not to contest a one-third contingency fee request by counsel does not preclude class certification; and that while the solicitation letter sent to plaintiff did not fully comply with the New Jersey Rules of Professional Conduct, it was not deceptive and the court should not penalize the proposed class by denying certification on the basis of an attorney who is not proposed as class counsel. [Filed Dec. 20, 2013.]
 
CONTRACTS
11-7-2637 American Financial Resources Inc. v. Countrywide Home Loans Servicing, U.S. Dist. Ct. (Salas, U.S.D.J.) (18 pp.) Plaintiff, which originates mortgage loans, pools them, and either sells them to investors or services them, subcontracted with defendant to service some of its loan pools. Plaintiff alleges that defendant breached the contract and the acceptable standard servicing procedures and after being notified of the deficiencies, did not renew the contract, leaving plaintiff unable to immediately find an alternative servicer, causing its loan ratio to become much higher, which hindered it from making additional loans, increased the cost to borrow money, and caused $10 million in damages. Determining that it will apply New Jersey law to decide the breach-of-contract claim and the applicability of the economic-loss doctrine, the court grants in part and denies in part defendant’s motion to dismiss. Regarding the breach-of-contract claim, the court finds that plaintiff has met its liberal burden at this stage by alleging a litany of losses, has sufficiently pleaded that it performed its own contractual obligations, and that plaintiff did not waive its breach-of-contract claim and thus has pleaded enough facts to create a plausible inference that it is entitled to relief for its breach-of-contract claim. Its claims for indemnification and attorney fees and for alter ego and successor liability also survive the motion to dismiss since they depend on and are derivative of the breach-of-contract claim. The claims for breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, gross negligence, punitive damages and fraud are barred by the economic-loss doctrine and are dismissed with prejudice. [Filed Dec. 23, 2013.]
 
CREDITORS’ AND DEBTORS’ RIGHTS
15-8-2651 44A Trump International Inc. v. Russell, Third Cir. (Smith, U.S.C.J.) (5 pp.) 44A Trump International Inc. filed this action against Jesse Russell alleging that he defaulted on a loan. The parties negotiated a settlement agreement that consisted of three documents executed between Trump International and IncNetworks, a company owned in whole or in part by Russell. An escrow agreement provided for an escrow agent, Eric Magnelli, to hold the stock, “other collateral,” and the agreements in escrow. Russell was not named in any of these documents. Shortly thereafter IncNetworks defaulted. 44A Trump International filed a second lawsuit against IncNetworks and Magnelli, seeking to recover the balance of the promissory note and the release of collateral held in escrow. 44A Trump International then filed a motion to reopen this action against Russell and to consolidate it with the case against IncNetworks. The district court denied the motion. The circuit panel affirms, holding that the district court did not abuse its discretion in denying 44A Trump International’s motion. As the district court explained, Trump International deliberately and voluntarily entered into the settlement agreement that resulted in the dismissal of this action. 44A Trump International was, or should have been, aware that the terms of that agreement did not provide for recourse directly against Russell in the event of IncNetworks’ default. [Filed Nov. 21, 2013.]
 
15-7-2652 Dyer v. Stanislaus, U.S. Dist. Ct. (Salas, U.S.D.J.) (9 pp.) In this action arising out of a home equity loan that was allegedly obtained by plaintiffs’ stepgrandson using plaintiffs’ forged signatures on the loan documents, the court grants defendant Bank of America’s motion to dismiss the claims against it for negligence and violation of the Fair Debt Collection Practices Act. The negligence claim fails because plaintiffs have failed to plead a specific obligation that the bank owed them, merely reciting that it has an obligation, and thus they fail to properly plead the element of duty required for a negligence claim. The FDCPA claim fails because the act excludes originators from the definition of “debt collectors” and plaintiffs’ complaint explicitly identified the bank as the originator of the mortgage. [Filed Dec. 30, 2013.]
 
15-7-2684 Capital One National Association v. Khan, U.S. Dist. Ct. (Clark, U.S.M.J.) (8 pp.) In this action to enforce a guaranty for indebtedness on overdrawn business accounts serviced by plaintiff, the court grants plaintiff’s motion for interest and attorney fees and expenses against defendant, finding that Khan is liable for the interest accrued on the judgment and for all collection costs and legal expense related thereto permitted by law and attorney fees arising from all debts under the terms of the guaranty that he executed as a condition of obtaining a line of credit for the company of which he is president. [Filed Dec. 30, 2013.]
 
15-7-2685 Mason v. Chase Home Finance L.L.C., U.S. Dist. Ct. (Chesler, U.S.D.J.) (17 pp.) In this action alleging that defendant CHF’s action in reporting a state foreclosure action against plaintiffs to defendant major credit-reporting agencies and then verifying that such an action had been filed without supplementing its report to indicate the disputed nature of the action or that it had been dismissed violated the Fair Credit Reporting Act and the New Jersey Consumer Fraud Act and constituted the intentional infliction of emotional distress, the court denies CHF’s motion for summary judgment on the FCRA claim, finding that, drawing all justifiable inferences in plaintiffs’ favor, the record is sufficient for a trier of fact to find that CHF’s decision to verify the foreclosure without mentioning the other material facts was misleading in such a way and to such an extent that it could be expected to have an adverse effect on plaintiffs and thus that it violated the FCRA and, therefore, it would be inappropriate for the court to decide as a matter of law that CHF did not violate the FCRA. The court grants CHF’s motion for summary judgment on the CFA claim because plaintiffs fail to submit any proof that CHF engaged in any unconscionable, deceptive or fraudulent conduct, as opposed to a misguided effort to force plaintiffs to pay their taxes and insurance into escrow as they were required to do by their mortgage agreement, rather than paying them directly to the town and insurer as they had been doing. Summary judgment is also granted on the IIED claim because, despite plaintiffs’ conclusory and unsubstantiated statements to the contrary, nothing in the record indicates impermissible behavior on the part of CHF with a level of outrageousness sufficient to create a triable IIED claim. [Filed Jan. 6, 2014.]
 
ENVIRONMENTAL LAW
17-7-2670 Raritan Baykeeper Inc. v. NJ Industries Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (3 pp.) The court denies plaintiff’s motion for reconsideration of the court’s case management order entered July 15, 2013, finding that it lacks merit because there has been no intervening change in controlling law or any newly available evidence and, when entering the order, the court reviewed both parties’ proposed case management orders and considered plaintiff’s arguments, and plaintiff is merely asking the court to rethink what it already thought through, which does not meet the requirements for reconsideration under Local Civil Rule 7.1(i). [Filed Jan. 2, 2014.]
 
ENVIRONMENTAL LAW—BANKRUPTCY
17-7-2686 United States v. Alsol Corp., U.S. Dist. Ct. (Hayden, U.S.D.J.) (14 pp.) In this CERCLA action seeking to recover the costs of an environmental cleanup, in which two of the corporate defendants filed for bankruptcy after the suit began but before any defendants were served, the court grants plaintiff’s motion for an order declaring that the in personam portion of the suit—in which the government demands the reimbursement of response costs, contending that defendants are jointly and severally liable to the United States for all costs incurred in connection with the sites under 42 U.S.C. § 9607(a)(1)—is not subject to the automatic stay provision of the U.S. Bankruptcy Code, holding that under United States v. Nicolet Inc., the in personam claim falls within the 11 U.S.C. § 362(b)(4) exception to the automatic stay for actions brought by a government unit to enforce its police and regulatory power. The court also grants defendants’ motion to overturn the default entered against them, finding that given the complex statutory scheme at work and the government’s concession that the monies assessed and the actions taken by the EPA are subject to challenge, it cannot conclude that the proposed defenses are categorically without merit and it is unwilling to characterize defendants’ actions as manifesting willfulness as opposed to negligence. However, defendants are required to submit their proposed answer within 10 days. [Filed Jan. 2, 2014.]
 
HEALTH LAW
22-7-2638 Premier Health Center, P.C. v. UnitedHealth Group, U.S. Dist. Ct. (Debevoise, U.S.D.J.) (11 pp.) This matter arises out of the methods by which defendant UnitedHealth Group recoups benefit overpayments from health-care providers. Plaintiffs filed a complaint against United and several of its subsidiaries, asserting claims for benefits, failure to provide a full and fair review, and for equitable relief under the Employee Retirement Income Security Act (ERISA). Plaintiffs filed an amended complaint, adding an additional plaintiff as well as additional factual allegations. The amended complaint sets forth two proposed classes: the ERISA recoupment class and the ERISA chiropractor class. Plaintiffs moved to certify both. Defendants opposed the motion and moved for summary judgment against the named plaintiffs of the ERISA chiropractor class. The court issued an opinion and order granting defendants’ motion for summary judgment against the ERISA chiropractor class; and denying plaintiffs’ motion to certify the ERISA recoupment class. Plaintiffs filed a renewed motion for class certification, which proposed two new classes: the ONET repayment demand class and the ONET offset class. In response, defendants moved to strike plaintiffs’ renewed motion for class certification. Defendants’ motion to strike is granted with respect to the ONET offset class and denied with respect to the ONET repayment demand class. [Filed Nov. 20, 2013.]
 
22-7-2671 Guariglia v. Local 464A United Food and Commercial Workers Union Welfare Service Benefit Fund, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (13 pp.) Plaintiff was a participant in a health plan administered by defendant when she tripped and was injured due to a pothole in a public roadway. The plan is governed by the Employee Retirement Income Security Act (ERISA). Plaintiff filed a lawsuit against several defendants for personal injuries arising from her accident, which is pending in the Superior Court of New Jersey (liability action). Plaintiff also filed a claim against the plan for payment of medical expenses arising from the accident. The plan advised that any outstanding claims related to the accident “will be denied as non-covered medical expenses.” The plan advised that it would assert a lien against plaintiff’s recovery from the liability action regardless of whether reimbursed medical expenses are part of the claim for damages. The plan has not intervened in plaintiff’s liability action or brought an action against the tortfeasors to recover medical expenses. Here, the issue is whether there is a violation of the plan or ERISA. Plaintiff alleges the plan’s failure to pay her medical expenses is “arbitrary and contrary to law.” However, ERISA does not require the plan to pay for expenses that are the responsibility of a third party. Based on the summary plan description, the plan may but is not mandated to enter into an agreement to advance payment for medical expenses that are excluded from coverage because of third-party liability. Defendant’s motion to dismiss is granted. Plaintiff’s cross motion is denied. [Filed Nov. 25, 2013.]
 
INSURANCE LAW
23-7-2625 Westfield Ins. Co. v. Interline Brands Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (58 pp.) In this procedurally complex insurance subrogation action brought by plaintiff on behalf of four insureds in three states who suffered property damage due to allegedly faulty toilet supply lines manufactured and distributed by defendants, asserting claims for negligence, failure to warn, breach of warranty, strict liability, fraudulent concealment, and violations of the New Jersey Product Liability Act, and involving two distinct chains of manufacture and distribution, the court denies defendant Linx’s motion to compel arbitration because the relevant arbitration forum rules do not permit the court to compel arbitration where the claims implicate nonconsenting, nonsignatories. Exercising its discretionary power and finding no compelling reasons to do so in the interest of expediency or convenience, the court denies defendant Interline’s motion to sever and transfer. The court grants Watts Water Technology’s motion to dismiss for lack of personal jurisdiction because the nonmoving parties have failed to make a prima facie showing of personal jurisdiction over WWT in New Jersey based on independent contracts or an alter ego relationship with Watts Regulator. [Filed Dec. 19, 2013.]
 
23-7-2653 Shannon v. B.L. England Generating Station, U.S. Dist. Ct. (Kugler, U.S.D.J.) (38 pp.) This matter comes before the court on a motion by third-party defendant Industrial Process Solutions (IPS) for summary judgment, and on a motion by third-party defendant Travelers Insurance Company for summary judgment. Third-party plaintiffs B.L. England Generating Station, Rockland Capital, and R.C. Cape May Holdings, L.L.C., have filed a joint cross-motion for summary judgment. Plaintiff Kenneth Shannon was injured while working as an employee of IPS at the Marmora generating station plant of B.L. England. Shannon was at the B.L. England plant to perform work pursuant to a purchase order agreement between IPS and R.C. Cape May, which is evidently a corporate entity related to B.L. England. Shannon filed suit against B.L. England and the other defendants, seeking damages for his injuries that he alleges resulted from their negligence. Plaintiff does not allege that he was injured as a result of any negligence by IPS, and IPS was not named in plaintiff’s amended complaint. In the absence of controlling authority from the New Jersey state courts, the court believes that the New Jersey Supreme Court would find that a contractor’s undertaking to name a premises owner as an additional insured would be considered coextensive with the contractor’s own liability. The court finds that the New Jersey Supreme Court would find that the insurance clause in the agreement is essentially a backdoor attempt at the statutorily prohibited result of indemnification for its own sole negligence, and is thus void. The motions of IPS and Travelers are granted, and the motion of the third-party plaintiffs is denied. [Filed Nov. 27, 2103]
 
INTELLECTUAL PROPERTY
53-7-2639 Shire, L.L.C. v. Amneal Pharmaceuticals, L.L.C., U.S. Dist. Ct. (Waldor, U.S.M.J.) (9 pp.) The court denies defendants’ motion for leave to amend its Local Patent Rule 3.7 Initial Invalidity and Non-Infringement Contentions, finding that defendants’ application is not timely where the summary of documents produced by plaintiff indicates that defendants had access to the information or documentation that should have led them to it earlier than they claim and they provide no explanation for the delay in filing their motion; defendants have failed to illustrate that they conducted a diligent search for prior art and thus they have not shown good cause to amend their contentions; and granting defendants’ motion will likely unduly prejudice plaintiff by requiring additional discovery and experts and by forcing plaintiff to abandon the strategy it has been developing for the past year. [Filed Dec. 26, 2013.]
 
53-7-2687 Malibu Media, L.L.C. v. Tsanko, U.S. Dist. Ct. (Shipp, U.S.D.J.) (17 pp.) This litigation stems from Malibu Media’s crackdown on the alleged infringement of its pornographic films. Plaintiff’s investigation resulted in this lawsuit against defendant, a corporation that wishes to remain anonymous. Plaintiff alleges that defendant is liable for direct and contributory copyright infringement for illegally copying and distributing a website containing plaintiff’s copyrighted movies. Plaintiff’s allegations all hinge on defendant’s—a corporation—alleged subscription to the IP address listed in plaintiff’s exhibits. The court defers its ruling on defendant’s motion to dismiss pursuant to Rule 12(b)(6) pending further briefing addressing the following issue: whether plaintiff can plausibly allege a prima facie claim of copyright infringement stemming from the use of peer-to-peer file-sharing systems where defendant-corporation is connected to the alleged infringement solely based on an IP address. [Filed Nov. 30, 2013.]
 
53-7-2688 Noven Pharmaceuticals Inc. v. Watson Laboratories Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (15 pp.) These motions stem from claims arising from two patents that are owned by plaintiff Noven Pharmaceuticals Inc.—U.S. Patent No. 6,210,705 and U.S. Patent No. 6,348,211. Defendants Watson Laboratories Inc. and Actavis Inc. move for summary judgment of invalidity of the ’705 claims, arguing that the claims are invalid for lack of adequate written description. The court finds that defendants have adequately shown that the ’705 claims are broader than the disclosure in the specification. Defendants’ motion for summary judgment of invalidity of asserted claims of U.S. Patent No. 6,210,705 is granted. Plaintiff’s cross-motion for summary judgment of no invalidity of the claims is denied. Defendants seek partial summary judgment of noninfringement of the ’211 claims, arguing that the Watson ANDA product does not literally infringe these claims. Defendants’ motion for partial summary judgment of noninfringement of U.S. Patent No. 6,348,211 is granted. Plaintiffs’ cross-motion for leave to file amended infringement contentions and for additional claim construction is denied. [Filed Nov. 26, 2013.]
 
LABOR AND EMPLOYMENT
25-7-2640 Al-Farook v. Marina District Development Company, L.L.C., U.S. Dist. Ct. (Shipp, U.S.D.J.) (7 pp.) Defendant, d/b/a the Borgata Casino & Spa in New Jersey, filed a motion for judgment on the pleadings in this age discrimination lawsuit. On being laid off, each plaintiff entered into an “employee separation agreement” with Borgata, waiving all potential claims against Borgata in exchange for a severance payment. Nevertheless, plaintiffs commenced this action under the Age Discrimination in Employment Act (ADEA). Count one seeks a declaratory judgment invalidating the separation agreements insofar as they waive plaintiffs’ claims under the ADEA. Plaintiffs assert that Borgata failed to comply with requirements of the Older Workers Benefit Protection Act (OWBPA). In its answer, Borgata attempts to plead around the OWBPA issue with a waiver of its own by declaring that it “will not assert the waivers executed by the plaintiffs in this matter as a defense to their claims under the ADEA.” Borgata contends that its decision not to assert the agreements executed by plaintiffs as a defense to their claims under the ADEA strips count one of a justiciable case or controversy, depriving the court of jurisdiction. The court rejects that argument and finds that count one presents a ripe controversy. In the wake of Borgata’s answer, plaintiffs can no longer assert a legitimate interest in obtaining declaratory relief. Defendant’s motion for judgment on the pleadings as to count one is granted. Count one is dismissed as moot. [Filed Nov. 25, 2013.]
 
25-7-2641 Robinson v. CRS Facility Services, L.L.C., U.S. Dist. Ct. (Cecchi, U.S.D.J.) (9 pp.) This matter comes before the court on defendants’ objections to Magistrate Judge Dickson’s report and recommendation regarding defendant’s motion to dismiss. Plaintiff, pro se, alleges discrimination by his former employer, defendant CRS Facility Services, L.L.C., under Title VII of the Civil Rights Act of 1964. Magistrate Judge Dickson issued his report and recommendation recommending that defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) be denied, finding that subject-matter jurisdiction existed under 28 U.S.C. § 1331. Despite his denial of the Rule 12(b)(1) motion, he recommended dismissal of the amended complaint sua sponte under Fed. R. Civ. P. 12(b)(6). Defendant’s central argument, in both its motion to dismiss and the objection, is that plaintiff failed to exhaust his administrative remedies, which precludes him from filing suit in federal court and, at the same time deprives this court of subject-matter jurisdiction. Defendant is correct that the failure to exhaust administrative remedies under Title VII precludes relief in federal court. However, plaintiff properly invoked federal-question jurisdiction under 28 U.S.C. § 1331 when he pleaded a cause of action under Title VII. The court adopts the report and recommendation. Defendant’s motion to dismiss for lack of subject-matter jurisdiction is denied. The court dismisses plaintiff’s amended complaint sua sponte for failure to state a claim under Fed. R. Civ, P. 12(b)(6). Plaintiff’s amended complaint fails to provide facts sufficient to support an inference of a Title VII violation by defendant. The court grants plaintiff leave to submit an amended complaint. [Filed Nov. 25, 2013.]
 
25-7-2642 Antiskay v. Contemporary Graphics and Bindery Inc., U.S. Dist. Ct. (Hillman, U.S.D.J.) (42 pp.) In this action alleging that defendant failed to pay overtime to plaintiff during his employment in violation of the Fair Labor Standards Act and that plaintiff was constructively discharged in violation of New Jersey’s Conscientious Employee Protection Act as a result of his repeated complaints to management about the failure to pay overtime compensation, the court grants defendant’s motion for summary judgment on the CEPA claim because plaintiff has explicitly abandoned it. The court also grants summary judgment on the FLSA claim, finding that under the specific circumstances of this case, the underlying purpose of Rule 8(c) was satisfied and defendant has not waived its ability to assert the administrative exemption under the FLSA as an affirmative defense to plaintiff’s claims although it did not plead this specific exemption in its answer; and that the administrative exemption is applicable to exempt plaintiff from the overtime requirements of the FLSA since plaintiff was compensated on a salary basis at a rate of no less that $455 per week, his primary duties constituted the type of nonmanual work that serviced and assisted in defendant’s core business operations, and his duties involved the exercise of discretion and independent judgment. [Filed Dec. 26, 2013.]
 
25-7-2654 Lin v. Lin, U.S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Plaintiffs, formerly employed at defendants’ restaurants, allege that defendants violated federal and state wage and hour laws by paying them far less than minimum wage and failing to pay overtime. The court denies defendants’ motion for summary judgment, finding defendants have failed to properly authenticate many of the exhibits they have submitted in support of their motion, making them inadmissible, and, moreover, even if all of the evidence were admissible, plaintiffs have raised genuine issues of material fact for trial such that summary judgment would be improper. [Filed Dec. 30, 2013.]
 
25-7-2655 Peter v. Vitran Express Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Plaintiff, a New Jersey resident, filed this action against defendant, a Pennsylvania corporation, after he was suspended without pay from his position as a truck driver as part of an investigation of missing cargo. The court grants in part and denies in part defendants’ motion to dismiss. Dismissed are the breach-of-contract claim, because plaintiff has not pointed to an employment manual, an oral promise, or any other specific conduct by defendants that would give rise to an implied contract; the breach of implied covenant of good faith and fair dealing, because plaintiff cannot allege such a claim in the absence of an underlying contract; the claim of wrongful discharge in violation of public policy, because plaintiff makes no allegation that he was fired in connection with a complaint he made concerning a clear mandate of public policy; and the claim of negligent termination, because New Jersey law does not allow claims for mere negligent wrongful discharge. The motion to dismiss is denied as to plaintiff’s defamation claim because he has adequately pleaded the elements of such a claim where he alleges that defendant-director of security stated that plaintiff was responsible for the missing freight, made these statements to plaintiff’s supervisors, with the intent to destroy plaintiff’s career, and plaintiff was damaged because he was terminated from his employment. [Filed Dec. 30, 2013.]
 
25-7-2656 Rodier v. Chico’s FAS Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (22 pp.) Plaintiff’s action arises out of her alleged treatment during the course of her employment with defendant Chico’s, and the circumstances surrounding her eventual, and allegedly involuntary, resignation. Plaintiff Madelyn Rodier asserts claims of age discrimination, hostile work environment, and retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (NJLAD), against her former employer, defendant Chico’s FAS Inc., and her former supervisors, defendants Heidi Marggraf and Lisa Schaffer. Currently before the court is the defendants’ motion for summary judgment. For the reasons stated herein, the court finds that plaintiff has failed to offer evidence in support of her claims of NJLAD age discrimination, hostile work environment, and retaliation that would create a genuine dispute of material fact for trial. Accordingly, the court will grant defendant’s motion for summary judgment on plaintiff’s claims of NJLAD age discrimination, hostile work environment, retaliation and punitive damages. [Filed Nov. 25, 2013.]
 
25-7-2657 Saget v. Wells Fargo Bank, N.A., U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Plaintiff brings this action against defendant Wells Fargo Bank, N.A., alleging breach of an implied employment contract and tortious interference with prospective economic advantage. Plaintiff alleges that his discharge from employment was “without basis in fact or law” and “in derogation of [D]efendant’s policies.” Plaintiff also alleges that defendant filed an “EARLY WARNING REPORT” stating plaintiff was discharged for unfavorable employment. Plaintiff maintains this report has prevented him from pursuing his career in the banking and finance industry. Defendant moves to dismiss both counts. As to plaintiff’s claim of breach of an implied employment contract, defendant argues plaintiff was an at-will employee and has not identified any contract or contractual terms supporting his claim. The court agrees and dismisses that count. The complaint fails to provide any language from an employee handbook or similar document overriding the presumption of at-will employment. In fact, it doesn’t allege that any specific policy exists. As to plaintiff’s claim for tortious interference with prospective economic advantage, defendant argues the complaint does not contain sufficient factual allegations showing plaintiff had a protectable interest or that defendant acted with malice. The court also dismisses that claim, finding the complaint does not contain any facts indicating that plaintiff applied to a job in the banking and finance industry and was rejected. Also, the complaint does not contain any factual allegations showing that defendant acted without justification or excuse when filing the “EARLY WARNING REPORT.” [Filed Nov. 26, 2013.]
 
25-7-2672 Zas v. Canada Dry Bottling Company of New York, L.P., U.S. Dist. Ct. (Waldor, U.S.M.J.) (6 pp.) Plaintiffs filed a motion for leave to file a second amended complaint (SAC) to add two additional defendants: Kevin Walker and Patrick Burke. Plaintiffs, a group of current and former drivers for defendant Canada Dry Bottling Company of New York (CDNY), allege that they were improperly classified as independent contractors rather than nonexempt employees of CDNY and, as such, are owed overtime pay and other benefits under the FLSA, NJWHL and ERISA. Defendants challenge the SAC on several grounds. As to the addition of Walker and Burke, defendants assert that plaintiffs fail to sufficiently plead individual liability under the FLSA and the NJWHL. The court previously found that in order to assert individual liability, plaintiffs must allege specific facts connecting individual defendants with impermissible deductions from plaintiffs’ wages or denying them overtime benefits. Plaintiffs fail to allege the required nexus. Plaintiffs’ motion to add Walker and Burke is denied without prejudice. The court rejects defendants’ contention that the term “Chinese overtime” is offensive. The court does not find the phrase to be “immaterial, impertinent, or scandalous” when read in context of this litigation. “Chinese overtime” is a phrase that has appeared in federal cases across the country referencing an untoward relationship between hours and compensation. Plaintiffs need not remove the phrase from their pleadings. Plaintiffs’ motion is denied. [Filed Nov. 25, 2013.]
 
25-7-2689 Pero v. International Business Machines Corp., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (13 pp.) Plaintiff, formerly a software sales specialist for defendant, filed this action asserting numerous causes of action arising out of defendant’s alleged wrongful withholding of commissions owing to him. The court grants defendant’s motion to dismiss. The claims of breach of fiduciary duty and fraudulent concealment by fiduciary are dismissed because IBM was under no duty to plaintiff to act on his behalf or give him beneficial advice and it does not owe him an undivided loyalty as it inherently had its own benefits at stake. The breach of the covenant of good faith and fair dealing and breach of contract claims are dismissed because plaintiff provides no factual basis to establish the existence of an agreement and he fails to indicate whether the alleged agreement is a written document, an implied contract, or an oral statement. The claims of legal and equitable fraud are dismissed because plaintiff has failed to plead the circumstances of the fraud with any semblance of particularity. The claim of unjust enrichment is dismissed because plaintiff failed to establish his entitlement to the purported benefit—bringing in sales income for defendant’s benefit—conferred. The claims related to fiduciary duty are dismissed with prejudice; the remaining claims are dismissed without prejudice and leave to amend is granted with respect to them. [Filed Jan. 2, 2014.]
 
LABOR AND EMPLOYMENT—HEALTH BENEFITS
25-7-2643 Barriero v. NJ BAC Health Fund, U.S. Dist. Ct. (Kugler, U.S.D.J.) (8 pp.) In this action seeking benefits under § 502(a)(1)(B) of ERISA, the court grants defendant’s motion to dismiss plaintiff’s complaint as untimely. Noting that parties may contractually agree to a limitations period that may be shorter or longer than the applicable state provision and to one that starts to run before the cause of action accrues, so long as the period is reasonable, the court holds that here, where the summary of plan description for defendant-fund provides that no suit may be filed more than three years after the end of the year in which medical services were rendered, without reference to the fund’s mandatory internal appeal process, and where the services at issue were provided to plaintiff in 2009, she needed to have filed suit by Dec. 31, 2012, and her suit, filed Jan. 28, 2013, therefore, was untimely. [Filed Dec. 27, 2013.]
 
LAND USE AND PLANNING
26-7-2673 Lanin v. Borough of Tenafly, U.S. Dist. Ct. (McNulty, U.S.D.J.) (28 pp.) Plaintiffs filed this 32-count amended complaint against the borough and the board of education regarding local ordinances passed limiting access to Downey Drive, the road adjacent to their home to Smith School. The majority of the claims relate to the effects of the traffic patterns and parking practices established by Tenafly ordinances; the presence of students and vehicles on and around plaintiffs’ property; flooding on their property from the adjacent Smith School parking lot; and the construction of sidewalks on Lower Downey Drive. The motion to dismiss the claims against the board and Tenafly for violations of the Fourteenth Amendment procedural due process clause, conspiracy, breach of fiduciary duty and ultra vires action is denied because the counts set forth sufficient allegations to state a claim. The remaining counts against the board are dismissed for lack of subject-matter jurisdiction, failure to state a claim for relief, or both. [Filed Jan. 1, 2014.]
 
LEGAL PROFESSION
04-7-2626 O.R. v. Hutner, U.S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) This matter has come before the court on the motions for reconsideration filed by plaintiff O.R. In March 2004, plaintiff, then a minor student, was suspended for possession of a knife at school. Plaintiff initiated several state court actions challenging the suspension and seeking production of school records. On March 5, 2010, plaintiff filed a complaint in this court. Ultimately, the court dismissed the complaint. Plaintiff then made several motions to reopen the case, including a motion for reconsideration, a motion to set aside judgment, a motion for reconsideration or a stay, and a motion to stay and/or for additional factual finding. Each motion was denied. During this time, the court also found it necessary to sanction plaintiff’s attorney, Rotimi Owoh. Owoh contended that he should not be required to pay sanctions because, according to him, defendants’ counsel, Eric Harrison, had engaged in fraud. After reviewing Owoh’s arguments, the court held Owoh in civil contempt for failure to pay the sanctions. In his motions for reconsideration, plaintiff asks the court to address specific “points” related to the factual record, “hold this case in the District Court,” or “compel Harrison to answer interrogatories.” A motion for reconsideration cannot be brought on these grounds. The court denies the motions. [Filed Nov. 25, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE—ATTORNEY FEES
34-7-2690 Rhodes v. Marix Servicing, L.L.C., U.S. Dist. Ct. (Arpert, U.S.M.J.) (7 pp.) Plaintiffs filed suit against defendant EMC Mortgage Corporation (EMC), their residential mortgage lender, based on allegations that it breached the loan agreement and mortgage with plaintiffs and, further, that it allowed its agents, Marix Servicing L.L.C., Residential Credit Solutions Inc. (as its mortgage servicers) and defendant Zucker, Goldberg & Ackerman (ZGA) (as its counsel), to violate the Real Estate Settlement Procedure Act (RESPA), the Fair Debt Collection Practices Act (FDCPA), the Truth in Lending Act, and applicable federal bankruptcy code sections. Plaintiffs filed a motion seeking an award of attorney fees and costs in their case against ZGA and EMC pursuant to Federal Rule of Procedure 37(a)(5)(A). Plaintiffs assert they are entitled to attorney fees because the court granted their motion to compel discovery in part as to ZGA and in full as to EMC. Defendant ZGA was seeking to preserve the attorney-client privilege, which it could not voluntarily waive without its client’s consent. As such, an award of attorney fees would be inappropriate. Plaintiffs have not demonstrated that they made a good-faith effort to communicate with EMC’s counsel prior to seeking an order to compel discovery. Plaintiffs’ motion is denied with respect to both EMC and ZGA. [Filed Dec. 2, 2013.]
 
SECURITIES AND FEDERAL CORPORATE LAW—ATTORNEY FEES
50-7-2627 In re Johnson & Johnson Derivative Litigation, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (32 pp.) These derivative suits assert against J&J, inter alia, failure to comply with product recalls, lack of good manufacturing practices, off-label drug marketing and violating federal and state statutes. Plaintiffs allege that based on various wrongdoings, J&J breached its fiduciary duty to its shareholders. After the resolution of J&J’s motions to dismiss, the parties reached a settlement. The court previously approved the parties’ settlement. The remaining determination is the amount of attorney fees and costs to be awarded to plaintiffs’ counsel. Plaintiffs’ counsel seeks in excess of $6.5 million in attorney fees and approximately $450,000 in costs, as well as a multiplier of 1.5. Presented with a multitude of attorneys and voluminous time entries, the court appointed a special master to assist in making the lodestar calculations and determining compensable costs. The issue of whether a multiplier is appropriate and, if so, in what amount, was left for the court. In her 138-page report and recommendation, the special master recommends that the court award counsel $5,383,905.76 in fees, and $416,305.73 in costs. Objections were filed challenging various aspects of the report concerning the lodestar calculations. This opinion reflects the court’s final determination of the fee application. The court adopts in full the special master’s report as follows: counsel are awarded fees of $5,383,905.76, and expenses of $416,305.73. Furthermore, the court denies counsel’s request for a multiplier. [Filed Nov. 25, 2013.]
 
SECURITIES AND FEDERAL CORPORATE LAW—CIVIL PROCEDURE
50-7-2691 Sync Labs, L.L.C. v. Fusion Manufacturing, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (9 pp.) In this case arising from a dispute regarding defendant Ferchak’s role and stake in plaintiff Sync Labs, a business in which plaintiff Radulescu is the overwhelming majority owner, Radulescu moves for reconsideration of an order denying summary judgment in his favor on defendants’ counterclaim that plaintiff violated the New Jersey Uniform Securities Law. The panel denies the motion for reconsideration, holding that there is no new evidence that would justify reconsideration since the exhibits he submitted with his reply brief, including the Sync Labs operating agreement, were available at the time of the conversion of Radulescu’s motion for judgment on the pleadings to a motion for summary judgment; and the court did not make a clear error of law when it identified a genuine issue of material fact regarding whether Ferchak’s interest in Sync Labs may be “stock” and thus subject to the protection of the NJUSL as nothing in New Jersey’s LLC Act says explicitly that LLC membership interests can never be “stock” for purposes of the securities laws and no controlling decision of law says so and the court did not have before it evidence sufficient to conclude as a matter of law that the LLC interest is not stock. The court denies defendants’ cross-motion to dismiss the amended complaint because the cross-motion does not relate to Radulescu’s motion for reconsideration of the opinion regarding summary judgment on the counterclaims. [Filed Jan. 6, 2014.]
 
TAXATION
35-7-2674 United States v. Mingucci, U.S. Dist. Ct. (Salas, U.S.D.J.) (12 pp.) In this action arising out of defendants’ failure to pay income tax liabilities assessed against them for tax years 1997-2007 and the federal tax liens attached to all property and rights to property owned or acquired by them, including a beach house the title to which is currently held by the estate of Mingucci’s late mother, the court holds that there is no dispute that Mingucci and his sister, as heirs to their mother’s estate, each inherited one-half interest in the beach house, but because the estate has not yet been fully administered, title to the house remains in the name of the estate, and the house remains under the jurisdiction of the state probate court, the court does not have authority to order the sale of the property. The court therefore assigns Mingucci’s interest in the estate to the government, which may move the appropriate court to close the estate and distribute its assets according to state probate law. The court denies the motion of Mingucci’s sister to compel the private sale of the beach house since title remains with the estate. [Filed Dec. 30, 2013.]
 
TORTS—BUSINESS TORTS
36-7-2644 CHNJ Investors, L.L.C. v. Koger, U.S. Dist. Ct. (Simandle, U.S.D.J.) (11 pp.) Plaintiff CHNJ Investors filed a motion for default judgment against defendant Molinaro Koger Inc. seeking a judgment of $2 million on the first (fraud, intentional misrepresentation and concealment), second (negligent misrepresentation), third (unjust enrichment), fourth (conversion), sixth (breach of contract), seventh (malpractice), eighth (breach of duty of good faith and fair dealing) and ninth (New Jersey civil RICO) counts of the complaint. This action arises out of transactions in which defendants Robert Koger and Molinaro Koger Inc. acted as brokers on plaintiff’s behalf to coordinate the purchase and sale of a loan held by MTGLQ Investors. Robert Koger is the president of Molinaro Koger Inc. and had the power and authority to bind Molinaro Koger Inc. Plaintiff alleges that Robert Koger and Molinaro Koger Inc. made false statements, forged documents, fraudulently induced plaintiff to enter into certain agreements, and wrongfully kept plaintiff’s deposits and partial payments. Defendant Purcell NJ, L.L.C., was formed by Robert Koger and he also had the power and authority to bind Purcell. In plaintiff’s first amended complaint, “Robert T. Koger and Molinaro Koger are collectively referred to...as ‘Koger.’” The first amended complaint does not allege separate acts or wrongdoing. The court will, therefore, deny plaintiff’s motion for default judgment against defendant Molinaro Koger Inc. without prejudice. Plaintiff has leave to refile its motion, along with documentation showing Molinaro Koger Inc.’s liability specifically. [Filed Nov. 25, 2013.]
 
 

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