The first-filed rule of comity states that “the court which first acquires jurisdiction has precedence” over another court later acquiring jurisdiction absent “special equities,” Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978). The first-filed rule generally requires that a court with jurisdiction over a matter should defer to the court that first acquired jurisdiction over the dispute. Yancoskie, supra, 78 N.J. at 324. The rule, however, is “not . . . inflexible,” and “the presence of special equities may lead a court to disregard the traditional deference paid to the first-filed action.” Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 387 (2008).

The public policy in favor of arbitration invoked often in our courts, see, e.g., Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), is not just a policy of this State. The Supreme Court of the United States recognized in Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858, 79 L. Ed. 2d 1, 12 (1984), that, in enacting the Federal Arbitration Act, 9 U.S.C.A. §§ 1 to 16, “Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” See also Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002).

In light of this weighty public policy, there is no principled reason for viewing a demand for mediation or arbitration, contractually stipulated as a means for resolving disputes, as something that has no value or less value in this analysis than a complaint filed in a civil court.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A demand for mediation or arbitration, contractually stipulated as a means for resolving disputes, is comparable to a filing of a complaint in a civil court originally appeared on NJ Family Issues on February 6, 2012.

N.J.S.A. 2C:12-10(a)(1) defines a “course of conduct” necessary to constitute “stalking” to include, among other things, “directly, indirectly, or . . . by any action, method or device, or means, following, monitoring, observing, surveilling . . . a person[.]”

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A course of conduct necessary to constitute stalking includes, among other things, directly, indirectly, or by any action, method or device, or means, following, monitoring, observing, surveilling a person originally appeared on NJ Family Issues on February 6, 2012.

Ordinary due process protections apply in the domestic violence context. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). “At a minimum, due process requires that a party in a judicial hearing receive ‘notice defining the issues and an adequate opportunity to prepare and respond.’” Ibid. (quoting McKeown Brand v. Trumph Castle Hotel and Casino, 132 N.J. 546, 559 (1993)). In L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999), we explained that “it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint.”

However, in J.D. v. M.D.F., 207 N.J. 458, 479-80 (2011), the Supreme Court observed:

Plaintiffs seeking protection under the [PDVA] often file complaints that reveal limited information about the prior history between the parties, only to expand upon that history of prior disputes when appearing in open court. And it is frequently the case that the trial court will attempt to illicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, if any, of domestic violence, see N.J.S.A. 2C:25-29(a)(1) or to be certain of the relevant facts that may give content to otherwise ambiguous communication or behavior . . . ensuring that defendants are not deprived of their due process rights requires the trial courts to recognize both what those rights are and how they can be protected consistent with the protected goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, avoiding the sort of questions that induce plaintiff in this appeal to abandon the history revealed in the complaint in favor of entirely new accusations. That does not mean that trial courts must limit plaintiffs to the precise prior history revealed in the complaint, because the testimony might reveal that there are additional prior events that are significant to the court’s evaluation, particularly if the events are ambiguous. Rather, the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly.

The Court added that some defendants know the history that the plaintiff recites and some parties will be well prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Id. at 480. Some others will not and, “[i]n all cases the trial court must ensure that the defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare.” Ibid.

J.D. teaches that if the trial court permits a plaintiff to amend a complaint, the court should also liberally grant adjournments requested by the defense in order to meet those allegations.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

It is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint originally appeared on NJ Family Issues on February 6, 2012.

The doctrine of judicial estoppel forecloses a party from making a factual assertion when: (1) the party made a contrary assertion in an earlier proceeding, and (2) that tribunal relied upon or accepted that contrary assertion. Kimball Inter’l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606-07 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001); see Ali v. Rutgers, The State Univ. of N.J., 166 N.J. 280, 287-88 (2000) (citing Kimball Inter’l with approval). “[A] party to litigation will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits.” Scarano v. Cent. R.R. Co. of N.J., 203 F.2d 510, 513 (3d Cir. 1953).

Judicial estoppel, however, does not “bar every conceivable inconsistency” in a party’s present and past assertions. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996). A “good explanation” for inconsistent positions may refute judicial estoppel. See Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996).

The doctrine of judicial estoppel may be invoked when a prior inconsistent position was taken in bankruptcy proceedings. See Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419-20 (3d Cir.), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988). The party invoking the doctrine need not have been a creditor or otherwise involved in the bankruptcy proceedings. Ryan Operations, supra, 81 F.3d at 359-61. Federal bankruptcy law requires that a debtor’s “assets and liabilities” and “a statement of the debtor’s financial affairs” be listed in the petition. 11 U.S.C. § 521(1). “[F]ull and honest disclosure” of this information is very important to disposition of the petition, but judicial estoppel is not automatically applicable in a subsequent proceeding because a litigant failed to list a claim. Ryan Operations, supra, 81 F.3d at 362. Citing precedents, the United States Court of Appeals for the Third Circuit has stated that judicial estoppel requires at least an inference that the failure to list a claim was because of “intentional wrongdoing,” “deliberate inconsistencies,” “knowing misrepresentation,” or “a scheme to mislead the court.” Id. at 362-63.

The New Jersey Supreme Court has cautioned that: “Judicial estoppel . . . is an extraordinary remedy that courts invoke only when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.” State v. Jenkins, 178 N.J. 347, 359 (2004) (internal quotation marks omitted); see also Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990) (“Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.”). In Ali, supra, 166 N.J. at 288, the Supreme Court stated: “courts must analyze each case by considering the totality of circumstances to determine whether the extraordinary remedy of estoppel should be invoked.”

Similarly, the Appellate Division has observed that judicial estoppel is a harsh remedy and should only be used when the integrity of the judicial process is undermined. Kimball Inter’l, supra, 334 N.J. Super. at 608. Inconsistent assertions typically undermine the integrity of the judicial process when a party is “playing fast and loose with the courts” to gain an advantage in litigation. Cummings, supra, 295 N.J. Super. at 387; see alsoDelgrosso v. Spang & Co., 903 F.2d 234, 242 (3d Cir.) (because of the threat to judicial integrity, “judicial estoppel is particularly appropriate in situations . . . where the party benefited from its original position”), cert. denied, 498 U.S. 967, 111 S. Ct. 428, 112 L. Ed. 2d 412 (1990).

Courts and commentators have also considered whether proof must be presented that the adverse party has been prejudiced by the inconsistent factual assertions. See Kimball Inter’l, supra, 334 N.J. Super. at 608 n.4. Our former Supreme Court succinctly formulated the doctrine of judicial estoppel in the following words: “The general rule is that a party who, with knowledge of the facts, has assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party.” Brown v. Allied Plumbing & Heating Co., 129 N.J.L. 442, 446 (Sup. Ct.) (cited in Kimball Inter’l, supra, 334 N.J. Super. at 606), aff’d, 130 N.J.L. 487 (E. & A. 1943). Thus, application of the doctrine required a showing that the party against whom it was applied had “knowledge of the facts” and that the other party was prejudiced by the prior inconsistent position. While subsequent cases have not consistently applied both those requirements, the general admonition of our courts to apply the doctrine cautiously suggests that knowledge of the offending party and prejudice to the adverse party are relevant considerations.

Where the doctrine of judicial estoppel may benefit those who engaged in a fraud related to the same inconsistent assertions, “no compelling circumstances or injustice” warrant the court’s “invoking the doctrine.” Ali, supra, 166 N.J. at 288-89.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The doctrine of judicial estoppel may be invoked when a prior inconsistent position was taken in prior proceedings originally appeared on NJ Family Issues on February 6, 2012.

A trial judge’s authority to dismiss a cause of action at the close of a party’s case is found in Rules 4:37-2(b) and 4:40-1. Under those rules, the judge must determine whether the evidence and all reasonable inferences drawn from that evidence can sustain a judgment in favor of the claimant. See R. 4:37-2(b); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005).
If “reasonable minds could differ,” the motion to dismiss must be denied. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997); Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

On the other hand, “when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist[,]” the court may grant a motion to dismiss without further presentation of evidence. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 493 (1956); see City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 64-65 (2001); cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532-40 (1995) (similar standards apply to a motion for dismissal under Rule 4:37-2(b) and a motion for summary judgment under Rule 4:46-2(c), including whether the evidence “‘is so one-sided that one party must prevail as a matter of law’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986))). A trial court must take into consideration the entirety of testimony from a witness rather than isolated excerpts favorable to one party or the other on a motion to dismiss. See Ritondo v. Pekala, 275 N.J. Super. 109, 111 (App. Div.), certif. denied, 139 N.J. 186 (1994).

On appeal, the appellate court applyes the same standard as the trial judge in considering dismissal of claims. RSB Lab. Servs., Inc. v. BSI Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). That is, the appellate court conducts a plenary review of the record and consider de novo whether a claim should have been dismissed under Rules 4:37-2(b) or 4:40-1.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

When the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist, the court may grant a motion to dismiss without further presentation of evidence originally appeared on NJ Family Issues on February 6, 2012.

Although the PDVA does not define “household member,” several cases had addressed the meaning of this term. In South v. North, 304 N.J. Super. 104, 116 (Ch. Div. 1997), the father of the plaintiff’s grandson was considered a household member. The plaintiff lived with her adult daughter and grandson; the father of the child and the daughter were engaged. Id. at 107. In Storch v. Sauerhoff, 334 N.J. Super. 226, 233, 235 (Ch. Div. 2000), a stepchild and stepfather, who lived on the same block were considered household members, even though they had not resided in the same house for nineteen years. In Hamilton v. Ali, 350 N.J. Super. 479, 480 (Ch. Div. 2001), college students living in a nine-person dormitory suite were considered household members. The court noted that sharing four bedrooms, a bathroom, and a common area constituted a “family-like setting.” Id. at 486.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Who is a household member originally appeared on NJ Family Issues on February 2, 2012.

A trial judge may grant prejudgment interest at his or her discretion. Cnty. of Essex v. First Union Nat’l Bank, 186 N.J. 46, 61 (2006); see also Meshinsky v. Nicholas Yacht Sales, Inc., 110 N.J. 464, 478 (l988). An appellate court should not interfere with such award unless the award represents a manifest denial of justice. Cnty. of Essex, supra, 186 N.J. at 61. Prejudgment interest in contract actions are not subject to the mandates of Rule 4:42-ll, which apply only to tort actions, but rather are “assessed on a discretionary basis as the result of the application of equitable principles.” DialAmerica Mktg., Inc. v. KeySpan Energy Corp., 374 N.J. Super. 502, 508 (App. Div.), certif. denied, 184 N.J. 212 (2005).

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Prejudgment interest in contract actions are assessed on a discretionary basis as the result of the application of equitable principles originally appeared on NJ Family Issues on February 2, 2012.

A spouse cannot convert or diminish marital assets so as to diminish the other spouse’s distributable share. Vander Weert v. Vander Weert, 304 N.J. Super. 339, 349 (App. Div. 1997).

“Public policy concerns require divorcing spouses to deal fairly with each other.” Tannen v. Tannen, 416 N.J. Super. 248, 262 (App. Div. 2010), aff’d, 208 N.J. 409 (2011).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Public policy concerns require divorcing spouses to deal fairly with each other originally appeared on NJ Family Issues on February 2, 2012.

The mechanisms for awarding attorneys’ fees, including contingency enhancements, adopted in Rendine v. Pantzer, 141 N.J. 292 (1995) remain in full force and effect as the governing principles for awards made pursuant to New Jersey fee-shifting statutes.

Statutory fee-shifting provisions address the problem of unequal access to the courts; provide the individuals, whose rights are being protected by the statutes, with the resources to enforce those rights in court; operate to encourage adequate representation which is essential to ensuring that those laws will be enforced; and promote respect for the underlying law.

Pursuant to Rendine, calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar. The lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.

Rendine, and its companion case Szczepanski v. Newcomb Medical Ctr., 141 N.J. 346 (1995), included specific guidance that informs both aspects of the lodestar equation. In addition, under Rendine, after the lodestar has been established, the trial court may increase the fee to reflect the risk of nonpayment in all cases in which the attorney’s compensation entirely or substantially is contingent on a successful outcome. The Court’s authorization of contingency enhancements arose from its conclusion that a fee award cannot be “reasonable” unless the lodestar is adjusted to reflect the actual risk that the attorney would not receive payment if the suit did not succeed.

See related Blog Post: Contingency Fee Enhancements in NJ, posted by Matthew Stoloff, Esq.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar; the lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate originally appeared on NJ Family Issues on January 31, 2012.

Under the Prevention of Domestic Violence Act, “acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2).” Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not “automatically mandate[] the issuance of a domestic violence restraining order.” Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence.” Id. at 128.

Appellate review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence originally appeared on NJ Family Issues on January 30, 2012.