NJ Family Issues Information and Opinions 2017-06-22T18:06:48Z http://www.kostrolaw.com/NJFamilyIssues/feed/atom/ WordPress PaulKostro <![CDATA[Federal question jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30093 2017-06-18T11:17:38Z 2017-06-15T11:08:23Z ]]>
Law Lessons from Demase Warehouse Sys., Inc. v. Demase, D.N.J. (Linares, U.S.D.J.), Civil Action No.: 17-3074 (JLL), June 12, 2017:

Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the . . . defendants, to the district court . . . .“ Federal questions are one way that federal courts can have original jurisdiction over a case. 28 U.S.C. § 1331 (“arising under the Constitution, laws, or treaties of the United States.”). Federal question jurisdiction exists “only when a federal question is presented on the face of the plaintiffs properly pleaded complaint,” pursuant to “well-pleaded complaint rule.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A plaintiffs complaint must establish that the case arises from federal law. See Franchise Tax 3d. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983); cf Pascack Valley Hosp. v, Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393 (3d. Cir. 2004) (holding that removal was improper because the plaintiffs complaint did not present a federal question).

The “well-pleaded complaint rule” establishes that Federal Courts do not have original jurisdiction over cases where the complaint sets forth a state law cause of action, even if the defendant could raise a federal defense. Franchise Tax 3d., 463 U.S. at 9-11.

A case could “still arise under the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law … “ Franchise Tax Bd., 463 U.S. at 13 (emphasis added).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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Federal question jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint originally appeared on NJ Family Issues on June 15, 2017.

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PaulKostro <![CDATA[In determining whether an implied contract exists in the context of a special employment relationship, the focus is on the relationship between plaintiff and each of his potential employers]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30085 2017-06-18T10:58:29Z 2017-06-15T10:48:47Z ]]>
Law Lessons from Innarella v. Wedgewood Condominium Association, Inc., N.J. Super. App. Div., No. A-2542-15T2, June 14, 2017:

An employment contract “may be express or implied.” White v. Atlantic City Press, 64 N.J. 128, 133 (1973). A contract for hire does “not require formality.” Gomez v. Federal Stevedoring Co., Inc., 5 N.J. Super. 100, 103 (App. Div. 1949). While agreement to the offer of employment “must be manifested in order to be legally effective, it need not be expressed in words.” Ibid. The assent can be “implied from conduct without words.” Ibid. In determining whether an implied contract exists in the context of a special employment relationship, the focus is on the relationship between plaintiff and each of his potential employers. Pacenti v. Hoffman-La Roche, Inc., 245 N.J. Super. 188, 193 (App. Div. 1991).

The Workers’ Compensation Act, N.J.S.A. 34: 15-1 to-69.3, provides an employee with an “exclusive remedy” against the employer for injuries “arising out of and in the course of the employment.” Gore v. Hepworth, 316 N.J. Super. 234, 240 (App. Div. 1998); N.J.S.A. 34:15-1, -7, -8. In exchange for receiving workers’ compensation benefits, the employee surrenders common law tort remedies against his or her employer and co-employees, except for intentional wrongs. N.J.S.A. 34:15-8.

However, in a situation where an employee of one entity is borrowed by another employer, that employee may prevail in a common law action against the borrowing employer depending on whether the employer is detrmined to be a “special employer.” Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 430 (App. Div. 1967). If the borrowing employer is determined to be a special employer, then the borrowed employee is precluded from bringing an action against the special employer. Ibid. A special employment relationship exists where “(a) [t]he employee has made a contract of hire, express or implied, with the special employer; (b) [t]he work being done is essentially that of the special employer; and (c) [t]he special employer has the right to control the details of the work.” Volb v. Gen. Elec. Capital Corp., 139 N.J. 110, 116 (1995).

Courts also utilize two additional factors in determining special employment: “whether the special employer [d] pays the lent employee’s wages, and [e] has the power to hire, discharge or recall the employee.” Blessing, supra, 94 N.J. Super. at 430. No one factor is dispositive; all five are weighed to evaluate a special employment relationship. Walrond, supra, 382 N.J. Super. at 236 (citations omitted). Additionally, “not all five [factors] must be satisfied in order for a special employment relationship to exist.” Ibid. However, “it is believed that the most significant factor is the third: whether the special employer had the right to control the special employee.” Ibid. (citing Volb, supra, 139 N.J. at 116); see also, e.g., Mahoney v. Nitroform Co., 20 N.J. 499, 506 (1956) (stating that the right to control is an “essential” element of the employment relationship); Gore, supra, 316 N.J. Super. at 241; Santos v. Std. Havens, Inc., 225 N.J. Super. 16, 22 (App. Div. 1988) (recognizing the significance of an employer’s “right to exercise a higher degree of authority” over any actual discretion exercised by an employee).

The third factor of the special employment test, described as “the most significant factor,” is whether the special employer had the right to control the special employee. Walrond, supra, 382 N.J. Super. at 236. “[I]t is well-settled that `[u]nder the control test, the actual exercise of control is not as determinative as the right of control itself.'” Santos, supra, 225 N.J. Super. at 22 (citing Mahoney, supra, 20 N.J. at 506).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

In determining whether an implied contract exists in the context of a special employment relationship, the focus is on the relationship between plaintiff and each of his potential employers originally appeared on NJ Family Issues on June 15, 2017.

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PaulKostro <![CDATA[Collateral estoppel may apply even if the prior proceeding was an arbitration hearing]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30096 2017-06-18T11:26:14Z 2017-06-14T11:20:06Z ]]>
Law Lessons from Petrone v. Sabo, N.J. Super. App. Div., Docket No. A-0460-15T2, June 13, 2017:

The doctrine of collateral estoppel operates to preclude the relitigation of issues that have been previously decided. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006). For the doctrine to apply, the party asserting the bar must show:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[Id. at 521 (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]

This doctrine applies not only to issues raised in a prior action, but also to facts that were in dispute as well. Id. at 522. Moreover, collateral estoppel may apply even if the prior proceeding was an arbitration hearing. Habick v. Liberty Mut. Fire Ins. Co., 320 N.J. Super. 244, 257-58 (App. Div.), certif. denied, 161 N.J. 149 (1999).

“The dispositions reached by arbitrators are afforded collateral estoppel effect by reviewing courts.” Levine v. Wiss & Co., 97 N.J. 242, 250 (1984).

Even if the elements of collateral estoppel are met, a court may exercise its discretion to deny preclusion where its application would be unfair. “Even where these requirements are met, the doctrine [of collateral estoppel], which has its roots in equity, will not be applied when it is unfair to do so.” Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002).

Factors disfavoring preclusion include:

[T]he party against whom preclusion is sought could not have obtained review of the prior judgment; the quality or extent of the procedures in the two actions is different; it was not foreseeable at the time of the prior action that the issue would arise in subsequent litigation; and the precluded party did not have an adequate opportunity to obtain a full and fair adjudication in the prior action.

Pace, supra, 347 N.J. Super. at 216.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

Collateral estoppel may apply even if the prior proceeding was an arbitration hearing originally appeared on NJ Family Issues on June 14, 2017.

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PaulKostro <![CDATA[The New Jersey Law Against Discrimination (LAD) prohibits employment discrimination on the basis of a disability unless the nature and extent of the disability reasonably precludes the performance of the particular employment]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30042 2017-06-03T05:34:30Z 2017-05-26T05:26:04Z ]]>
Law Lessons from McLaurin v. General Nutrition Centers, Inc., N.J. Super. App. Div., Docket No. A-1637-15T4, May 25, 2017:

The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-49, prohibits employment discrimination on the basis of a disability “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1; see also Potente v. County of Hudson, 187 N.J. 103, 110 (2006). To establish a prima facie case of handicap discrimination, the plaintiff must show that: (1) he or she was handicapped or disabled within the meaning of the LAD; (2) he or she was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) he or she suffered an adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after plaintiff had been removed from the position. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391, 399 (2005).

In order to survive a motion for summary judgment arising out of a claim of disability discrimination, a plaintiff must establish a prima facie case of discrimination with proof, in the first instance, of a disability. Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 597 (1988). Failure to establish the existence of a disability is fatal to a claim of disability discrimination irrespective of proof of the remaining elements of a disability discrimination claim. See Viscik v. Fowler Equip. Co., 173 N.J. 1, 15 (2002) (noting “the threshold inquiry in a handicapped discrimination discharge case is whether the plaintiff in question fits the statutory definition of `handicapped'”).

Under N.J.S.A. 10:5-5(q), there are two specific categories of handicap: physical and non-physical. The physical and non-physical clauses of the statute are distinct from each other and provide separate ways of proving handicap. Ibid. To prove a physical handicap, a plaintiff must prove that he or she has a “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness . . . which prevents the normal exercise of any bodily . . . functions or is demonstrable, medically . . . by accepted clinical or laboratory diagnostic techniques.” N.J.S.A. 10:5-5(q) (emphasis added). To prove a non-physical handicap

a plaintiff must prove that he or she is suffering (1) from any mental, psychological or developmental disability (2) resulting from an anatomical, psychological, physiological or neurological condition that either (a) prevents the normal exercise of any bodily or mental functions or (b) is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.

[Viscik, supra, 173 N.J. at 16 (citations omitted).]

“A plaintiff claiming a mental disability has the burden to prove that disability. `Where the existence of a handicap is not readily apparent, expert medical evidence is required.'” Wojtkowiak v. N.J. Motor Vehicle Comm’n, 439 N.J. Super. 1, 15 (App. Div. 2015) (quoting Viscik, supra, 173 N.J. at 16); see also Clowes, supra, 109 N.J. at 597 (rejecting a plaintiff’s disability claim because there was no expert medical evidence he was an alcoholic). “Similarly, a plaintiff has the burden to show the extent of the mental disability if the extent is relevant to the accommodations requested or offered.” Wojtkowiak, supra, 439 N.J. Super. at 15.

“[I]n an appropriate setting, the testimony of a treating physician may be admitted to support a plaintiff’s LAD disability claim, provided that the proponent of the testimony provides notice and responds to discovery requests in accordance with the court rules, and the testimony satisfies N.J.R.E. 701 and other applicable Rules of Evidence.” Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 580 (2016) (emphasis added) (citations omitted).

Under the LAD, an employer has an obligation to attempt to reasonably accommodate an employee’s physical or mental disability. Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323, 339 (2007). This obligation is only triggered when the employer is made aware of the handicap and the employee requests an accommodation. Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div. 2002). The request need not be in writing and the employee is not required to utter the words “reasonable accommodation.” Id. at 400. However, the request must be sufficiently clear that it conveys to the employer the employee’s request that an accommodation be attempted to address the employee’s disability. Id. at 400. Once the employee has conveyed the accommodation request to the employer, “both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Ibid. (citation omitted).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

The New Jersey Law Against Discrimination (LAD) prohibits employment discrimination on the basis of a disability unless the nature and extent of the disability reasonably precludes the performance of the particular employment originally appeared on NJ Family Issues on May 26, 2017.

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PaulKostro <![CDATA[Counsel’s presentation of facts which are neither of record, judicially noticeable, nor stipulated, by way of statements in a supporting brief and oral argument do not constitute cognizable facts]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30040 2017-06-03T05:25:44Z 2017-05-26T05:19:35Z ]]>
Law Lessons from McLaurin v. General Nutrition Centers, Inc., N.J. Super. App. Div., Docket No. A-1637-15T4, May 25, 2017:

Appending documents to a brief with no affidavit or testimony properly authenticating them does not constitute compliance with Rule 1:6-6. Celino v. General Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986) (noting that critical documents which are alleged to support facts upon which a motion for summary judgment is based must be submitted “to the court by way of affidavit or testimony”). Moreover, counsel’s presentation of facts which are neither of record, judicially noticeable, nor stipulated, by way of statements in a supporting brief and oral argument do not constitute cognizable facts. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff’d, 184 N.J. 415 (2005).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

Counsel’s presentation of facts which are neither of record, judicially noticeable, nor stipulated, by way of statements in a supporting brief and oral argument do not constitute cognizable facts originally appeared on NJ Family Issues on May 26, 2017.

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PaulKostro <![CDATA[A child’s attendance in postsecondary education may be a basis to delay emancipation and continue support]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30037 2017-06-03T05:16:58Z 2017-05-26T05:10:11Z ]]>
Law Lessons from Clapper v. Clapper, N.J. Super. App. Div., No. A-1476-15T2, May 25, 2017:

In Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), the court summarized the controlling principles regarding emancipation:

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child’s marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.” Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).

[Filippone, supra, 304 N.J. Super. at 308.]

In making this determination, a court must engage in “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.” Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at 545). Thus, upon a showing the child has reached the age of majority, the proponent of emancipation satisfies the prima facie showing, shifting the burden to the opponent of emancipation to show there is a basis to continue support. Filippone, supra, 304 N.J. Super. at 308.

Courts have held that a child’s attendance in postsecondary education may be a basis to delay emancipation and continue support. See Patetta v. Patetta, 358 N.J. Super. 90, 93-94 (App. Div. 2003); Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999). In addition to child support, financially capable parents may be required to contribute to the higher education of children who are qualified students. In Newburgh, our Supreme Court identified twelve non-exhaustive factors a court should consider when deciding a claim by one parent for contribution to the costs of a child’s higher education, namely,

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to overall long-range goals of the child.

[Newburgh, supra, 88 N.J. at 545.]

No one factor is alone determinative. Ibid.

In a later opinion, our Supreme Court directed that courts “should balance the statutory criteria of N.J.S.A. 2A:34-23(a)[2] and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child’s educational expenses.” Gac v. Gac, supra, 186 N.J. at 543. Furthermore,

the factors set forth in Newburgh . . . contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred. As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application.

[Id. at 546-47.]

Because these issues are fact-sensitive, courts must be cautious when making these rulings without an evidentiary hearing where there are material facts in dispute. See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (indicating that where facts are disputed or depend on credibility evaluations, a plenary hearing is required); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (reversing an emancipation motion and requiring a plenary hearing because the court failed to recognize disputed material facts and “evidence beyond the motion papers necessary for resolution of the matter”) (citation omitted); Conforti, supra, 128 N.J. at 322 (holding that a plenary hearing is necessary when there remains “contested issues of material fact on the basis of conflicting affidavits”) (citation omitted).

A judge may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 128 N.J. 318, 322 (1992). When the evidence discloses genuine material issues of fact, a Family Court’s failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

A child’s attendance in postsecondary education may be a basis to delay emancipation and continue support originally appeared on NJ Family Issues on May 26, 2017.

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PaulKostro <![CDATA[An expert must give the why and wherefore supporting his or her opinions]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30032 2017-06-03T05:01:53Z 2017-05-26T04:57:23Z ]]>
Law Lessons from Suser v. Delavan Indus., Inc., N.J. Super. App. Div., Docket No. A-3996-15T3, May 25, 2017:

As the Supreme Court has reaffirmed in a recent line of cases, an expert may not present testimony that “constitutes `mere net opinion.'” Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). An expert must instead “give the why and wherefore” supporting his or her opinions, and not just “a mere conclusion.” Ibid. (quoting Pomerantz, supra, 207 N.J. at 372 (internal citations omitted)). If the expert “cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is `personal[,]'” such testimony is an inadmissible net opinion. Ibid. (quoting Pomerantz, supra, 207 N.J. at 373).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

An expert must give the why and wherefore supporting his or her opinions originally appeared on NJ Family Issues on May 26, 2017.

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PaulKostro <![CDATA[It is the obligation of a trial court to state its factual findings and then connect those findings to the legal conclusions in support of the court’s ruling]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30024 2017-06-03T01:31:46Z 2017-05-25T01:24:15Z ]]>
Law Lessons from Stollsteimer v. Foulke Mgmt. Corp., N.J. Super. App. Div., Docket No. A-0833-16T2, May 23, 2017:

Rule 1:7-4 requires a trial court, “by opinion or memorandum of decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right.” The failure of a trial court to meet the requirements of the rule “constitutes a disservice to the litigants, the attorneys and the appellate court.” Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citations omitted).

It is the obligation of a trial court to state its factual findings and then connect those findings to the legal conclusions in support of the court’s ruling. See Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div. 1986). The failure to advance reasons in support of a judicial decision results in the reviewing court having to speculate as to the trial court’s thinking. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). “Neither the parties nor the appellate court is `well-served by an opinion devoid of analysis or citation to even a single case.'” Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009) (citing Great Atlantic & Pacific Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000)).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

It is the obligation of a trial court to state its factual findings and then connect those findings to the legal conclusions in support of the court’s ruling originally appeared on NJ Family Issues on May 24, 2017.

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PaulKostro <![CDATA[A motion for voluntary dismissal]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30027 2017-06-03T04:47:25Z 2017-05-24T04:40:12Z ]]>
Law Lessons from Williamson v. Daiichi Sankyo, Inc., D.N.J. (Kugler, U.S.D.J.) Civil Action No. 1:16-CV-05371, No. 15-2606 (RBK/JS), May 22, 2017:

The Third Circuit has established that the grant or denial of a motion for voluntary dismissal pursuant under Fed. R. Civ. Proc. 41(a)(2) lies firmly within the discretion of the district court. (In re Paoli R.R. Yard PCB Litig. 916 F.2d 829, 863 (3d Cir.1990); Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir.1974); Baldinger v. Cronin, No. 13-CV-01381, 435 Fed.Appx. 78 (NP) at *80, 2013 WL 4055395 (3d Cir.13 August 2013). See also Elsevier, Inc. v. Comprehensive Microfilm & Scanning Servs., Inc., No. 3:10-CV-02513, 2012 WL 727943, at *2 (M.D. Pa. 6 Mar. 2012); Dodge-Regupol, Inc. v. RB Rubber Prods., Inc., 585 F.Supp.2d 645, 652 (M.D. Pa 2008)) and “is primarily to prevent voluntary dismissals which unfairly affect the other side. . .” (Elsevier at *2 (citing Dodge-Regupol, 585 F.Supp.2d at 52 (citing Charles A. Wright & Arthur R. Miller, 9 Fed. Prac. & Proc. Civ.2d § 2364 n. 19)). Such a motion should be granted liberally (Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984)) “unless defendant will suffer some prejudice other than the mere prospect of a second lawsuit.” In re Paoli, 916 F.2d at 863, citing 5 J. Moore, Moore’s Federal Practice ¶ 41.05[1], at 41-62 (1988).

Specifically, in deciding a Rule 41(a)(2) motion, “a court must examine the prejudice to the defendant, both in terms of legal prejudice and litigation expense” (Dodge-Regupol, 585 F.Supp.2d at 652 (citing Schandelmeier v. Otis Div. of Baker-Material Handling Corp., 143 F.R.D. 102, 102-03 (W.D. Pa. 1992)) and consider: (1) the excessive and duplicative expense of a second litigation; (2) the effort and expense incurred by defendants in preparing for trial; (3) the extent to which the current suit has progressed; (4) plaintiffs’ diligence in bringing the motion to dismiss and the rationale for it; and (5) the pendency of a dispositive motion by the non-moving party.” Elsevier, Inc. at *2 (quoting Dodge-Regupol, 585 F.Supp.2d at 652).

The Supreme Court has acknowledged the propriety of a district court’s sua sponte conversion of a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) to a summary judgment motion under Fed. R. Civ. Proc. 56 when the court has given prior notice and an opportunity to oppose summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) [stating (“d]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”] Further, the 1946 amendment to Fed. R. Civ. Proc. 56 (c) ensures that both parties are to be given a reasonable opportunity to submit affidavits and extraneous proofs in order to avoid prejudice to a party because of surprise. Federal Rules of Civil Procedure, Rule 56 Summary Judgment, Notes of Advisory Committee on Rules — 1946 Amendment, Subdivision (c). See also DL Resources, Inc. v. Firstenergy Solutions Corp., 506 F.3d 209, 223 (3d Cir.2007) (outlining Third Circuit guidance and citing Prusky v. Reliastar Life Ins. Co., 445 F.3d 695, 699 n. 6 (3d Cir.2006) and Chambers Dev. Co. v. Passaic County Util. Auth., 62 F.3d 582, 584 n. 5 (3d Cir.1995)).

A motion for summary judgment imposes specific burdens on the moving party and on the non-moving party. The moving party bears the burden of showing that no genuine dispute exists as to any material fact and that the movant is entitled to judgment as a matter of law. An issue is material when it can alter the judgment outcome; a dispute of a material fact is genuine if “a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine dispute of a material fact exists, a court shall not weigh evidence or resolve facts, (Id. at 248)— tasks for the jury—but must accept as true the evidence of the non-moving party and construe ambiguities in their favor. Id. at 255.

As to its burden in opposing summary judgment, the non-moving party must present more than mere allegations or denials, i.e., at least a minimum extent of probative evidence from which a jury could find in their favor. Id. at 256-257. Specifically, the non-moving party must “identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). It is the offering of contradictory, material facts that raises the question whether a genuine dispute of material facts may exist and undercuts a decision for summary judgment. When a party fails to meet its burden of proof—either to establish a genuine issue of material fact or show the contrary—the other party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. at 322.

The Third Circuit in the Fen-Fen diet pill litigation weighed whether to grant plaintiffs’ Rule 41(a)(2) voluntary dismissal motion or defendants’ summary judgment motion. The court found that, although granting a voluntary dismissal motion is within the district court’s discretion, “a district court considering a plaintiff’s motion for voluntarily dismissal must decide the presence or extent of any prejudice to the defendant by the draconian measure of dismissing plaintiff’s complaint.” In Re: Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, No. 03-CV-1601, 85 Fed.Appx. 845 (NP), (3d Cir. 14 January 2004) (quoting Ferguson, 491 F.2d at 29.) Thus, the decision to grant summary judgment versus a Rule 41(a)(2) dismissal depends on balancing the specific prejudice to each party resulting from dismissal of the complaint.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

A motion for voluntary dismissal originally appeared on NJ Family Issues on May 24, 2017.

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PaulKostro <![CDATA[The decision to deny a motion for reconsideration falls within the sound discretion of the trial judge]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30021 2017-06-03T01:21:02Z 2017-05-24T01:20:13Z ]]>
Law Lessons from Blumberg v. Blumberg, N.J. Super. App. Div., Docket Nos. A-5481-13T4, A-3416-14T4, A-4070-14T4, May 23, 2017:

Reconsideration should only be used “for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.” Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D’Atria v. D’Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). Additionally, the decision to deny a motion for reconsideration falls within the sound discretion of the trial judge, to be exercised in the interest of justice. Ibid.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

The decision to deny a motion for reconsideration falls within the sound discretion of the trial judge originally appeared on NJ Family Issues on May 23, 2017.

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