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.

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.

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.

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt. The exercise of a valid testimonial privilege constitutes an adequate excuse. Privileges protect interests that have been determined to be of sufficient importance to justify some sacrifice of sources of facts needed in the administration of justice. Pursuant to N.J.R.E. 530, waiver of a privilege occurs if the holder enters into a contract not to claim the privilege or discloses part of the privileged matter or consents to disclosure. Courts also recognize that a privilege may be waived implicitly by placing a confidential communication in issue in the litigation.

The rules of evidence recognize two marital privileges that protect the tranquility and sanctity of marriage. The marital-communications privilege, N.J.R.E. 509, protects confidential communications made during a marriage. It is not at issue in this case. The spousal privilege, N.J.R.E. 501(2), provides that the spouse or civil union partner of the accused in a criminal action shall not testify in such action, except to provide the fact of the marriage or civil union, “unless (a) such spouse or partner consents, or (b) the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent, or (c) such spouse or partner is the complainant.” Unless one of the exceptions applies, all testimony is barred except that bearing on the fact of the marriage.

In In re Kozlov, 79 N.J. 232 (1979), the Court required that, aside from the express exceptions contained in the rules, a party seeking to pierce a privilege must advance a legitimate need for the evidence, show that it is relevant and material to the issue before the court, and establish that it cannot be secured from a less-intrusive source. Only in the most narrow of circumstances can the “need” prong be satisfied: (1) where a constitutional right is at stake, such as a defendant’s right to a fair trial, or (2) where a party has waived the privilege either expressly, as provided by statute, or implicitly by placing an otherwise protected matter in issue.

Pursuant to N.J.R.E. 530, waiver is only possible when it is exercised by a person while he or she is the holder of a privilege.

The “no less intrusive source” prong cannot be satisfied where other witnesses can testify about the events at issue.

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

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt — the exercise of a valid testimonial privilege constitutes an adequate excuse originally appeared on NJ Family Issues on January 30, 2012.

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360.

The Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705 — post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring — do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

The Government’s alternative argument — that if the attachment and use of the device was a search, it was a reasonable one — was forfeited because it was not raised below.

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

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment originally appeared on NJ Family Issues on January 23, 2012.

It is well-established that the main objective of the two tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008); Pressler and Verniero, supra, comment 1.1 on R. 4:23-5(a). To this end, Rule 4:23-5 imposes certain obligations upon the attorney for the delinquent party that are explicitly designed to ensure that a party whose pleadings are subject to dismissal is aware of the delinquency and of the consequences of failing to cure such deficiency. See id., comment 1.2 to R.4:23-5(a)(1). The first obligation is triggered when the attorney for the delinquent party is served with an order of dismissal or suppression without prejudice. Rule 4:23-5(a)(1) states in pertinent part:

[C]ounsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore.

Additional obligations are triggered by a motion to dismiss or suppress with prejudice:

The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client’s whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party.

[R. 4:23-5(a)(2).]

The rule thus imposes two additional obligations upon the attorney for the delinquent party when a motion to dismiss with prejudice has been filed: (1) to inform the court no later than seven days prior to the return date that the client has been duly informed of the motion and its consequences or, in the alternative, to certify that the client could not be so informed because his or her whereabouts could not be determined; and (2) to appear in court on the return date of the motion. Each of these requirements performs the valuable function of establishing a record for the benefit of court and counsel that a party has had requisite notice.

In Zimmerman v. United Servs. Auto. Ass’n., 260 N.J. Super.368, 376-77 (App. Div. 1992), the court noted that “achievement of the salutary scheme of [Rule 4:23-5] requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause.” See also Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 60 (App. Div. 1996).

Effective September 1, 1998, Rule 4:23-5(a)(3) imposed the following obligation upon the motion judge:

If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule.

Our courts recognize the importance of requiring communication from counsel for the delinquent party to ensure the party has had appropriate notice of the sanction sought. See, e.g., Zimmerman, supra, 260 N.J. Super. at 376 (“[I]t is clear that if the client is afforded an opportunity to appear and if the attorney is mandated to appear, the motion is not subject to waiver of oral argument and consequent decision on the papers.”); Suarez v. Sumitomo Chem. Co., 256 N.J. Super. 683, 688 (Law Div. 1991) (“[I]f on the return date of the ‘with prejudice’ motion counsel fails to appear, or does so, but has failed to properly notice the client, the court must adjourn the motion to a date when a proper hearing may occur.”).

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Obligations when a motion to dismiss with prejudice for discovery failures has been filed originally appeared on NJ Family Issues on January 23, 2012.

Laches arises from “‘the neglect for an unreasonable and unexplained length of time . . . to do what in law should have been done.’” Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 151 (1982) (quoting Atlantic City v. Civil Serv. Comm’n, 3 N.J. Super. 57, 60 (App. Div. 1949)). The doctrine bars relief when the delaying party had ample opportunity to bring a claim, and the party invoking the doctrine was acting in good faith in believing that the delaying party had given up on its claim. Knorr v. Smeal, 178 N.J. 169, 181 (2003); Lavin, supra, 90 N.J. at 152. The period of time during which laches can be raised as an equitable defense is flexible, not fixed. Lavin, 90 N.J. at 151.

When determining whether the doctrine of laches should be invoked, the court considers: (1) the length of the delay, (2) the reasons for the delay, and (3) how the circumstances of the parties have changed over the course of the delay. Knorr, supra, 178 N.J. at 181. As stated in Lavin:

The length of the delay alone or in conjunction with the other elements may result in laches. It is because the central issue is whether it is inequitable to permit the claim to be enforced, that generally the change in conditions or relations of the parties coupled with the passage of time becomes the primary determinant. That is why some courts have stated that the mere lapse of time is insufficient, though, as indicated above, that is an overstatement of the principle. Inequity, more often than not, will turn on whether a party has been misled to his harm by the delay.”

Id. at 152-53.

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.

Laches arises from the neglect for an unreasonable and unexplained length of time to do what in law should have been done originally appeared on NJ Family Issues on January 20, 2012.

The closing arguments of trial attorneys are to be confined to the facts shown by, or reasonably inferred from, the proofs admitted into evidence during the course of the trial. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Even so, in the heat of the moment, a zealous trial advocate may sometimes stray from this boundary. In light of that practical reality, the propriety of a lawyer’s summation must be evaluated as a whole, and individual comments should not be considered in isolation. Almog v. Israel Travel Advisory Serv., 298 N.J. Super. 145, 161 (1997), appeal dismissed, 152 N.J. 361, cert. denied, 528 U.S. 817, 119 S. Ct. 55, 142 L. Ed.2d 42 (1998).

A litigant is not entitled to a new trial arising from an improper closing argument unless “the comments are so prejudicial that ‘it clearly and convincingly appears that there was a miscarriage of justice under the law.’” Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)). The failure of opposing counsel to object to an improper comment made in summations raises a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention. Risko v. Thompson Miller Auto Grp. Inc., 206 N.J. 506, 523 (2011).

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

The failure of opposing counsel to object to an improper comment made in summations raises a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention originally appeared on NJ Family Issues on January 19, 2012.

Judicial estoppel is intended to protect the integrity of the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996) (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). It “operates to ‘bar a party to a legal proceeding from arguing a position inconsistent with one previously asserted.’” Id. at 385 (quoting N.M. v. J.G., 255 N.J. Super. 423, 429 (App. Div. 1992)). The doctrine “prevents litigants from ‘playing fast and loose’ with, or otherwise manipulating, the judicial process.” State v. Jenkins, 178 N.J. 347, 359 (2004) (quoting N.J. Dep’t. of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 632 (1995)). “Central to that concern is the principle that a litigant should not be allowed to mislead courts by having one tribunal rely on his or her initial position while a subsequent body is led in a different direction.” Ibid.

The applicability of judicial estoppel as a complete bar to a subsequent inconsistent claim arises “when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding.” Ali v. Rutgers, 166 N.J. 280, 287 (2000). A prior successful assertion of a contrary position is required because “[a] party is not bound to a position it unsuccessfully maintained” in a prior lawsuit. Id. at 288. As with most judicially crafted remedies, judicial estoppel should be invoked only to prevent a miscarriage of justice. Ibid.

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

Judicial estoppel operates to bar a party to a legal proceeding from arguing a position inconsistent with one previously asserted originally appeared on NJ Family Issues on January 17, 2012.