New Jersey Division of Youth & Family Services v. S.H., ___ N.J. Super. ___ (App. Div. 2015).  Scott, a fifteen-year old with ADHD, was accused by his older sister, Sara, of stealing her possessions.  Scott’s mother, Susan, confronted Scott about that while he was watching television.  Scott responded by angrily saying “Why the fuck you always blaming me for something?”  Susan’s reaction to Scott’s outburst was to throw at Scott a shoe that had a heel.  Susan threw the other shoe, which Scott deflected.  Scott tried to walk away, but Susan restrained him.  Eventually, Susan grabbed a golf club and began hitting Scott’s legs with it.  When Scott took that golf club away, Susan got another golf club.  She also bit Scott multiple times.  Scott then left the home after kicking several windows, breaking two of them.  For two days, he “walked the streets” and did not eat or sleep. read more

Arias v. Elite Mortgage Group, Inc., ___ N.J. Super. ___ (App. Div. 2015).  This opinion by Judge Reisner affirmed a grant of summary judgment in favor of the defendant bank and against the plaintiff mortgagors, applying the de novo standard of review.  The parties had entered into a Trial Period Plan Agreement (“TPP”) under the federal Home Affordable Mortgage Program (“HAMP”).  The TPP stated that if plaintiffs made three trial period payments, in specified amounts on specified dates, the bank would provide plaintiffs with a mortgage modification agreement.  The TPP also made clear that if plaintiffs did not comply with their obligations under the TPP, “the Loan Documents will not be modified.” read more

Heffernan v. City of Paterson, ___ F.3d ___ (3d Cir. 2015).  [Disclosure:  Victor A. Afanador and Susana Cruz Hodge, my colleagues at Lite DePalma Greenberg, LLC, represented the successful appellees in this case]  Jeffrey Heffernan was a police officer in the City of Paterson.  In 2006, he was observed picking up a campaign sign for the opponent of Paterson’s incumbent mayor.  Heffernan was demoted after that, allegedly because of that incident.  The demotion occurred even though Heffernan protested that he had picked up the sign at the request of his mother, and that he himself “wasn’t politically involved,” was merely “picking up a sign for [his] mom,” and in fact, could not vote in the election because he did not live in Paterson.  Heffernan brought suit under the Civil Rights Act, 42 U.S.C. §1983, against the City, the mayor, and two high-ranking police officials for alleged violation of his First Amendment rights to freedom of speech and freedom of association.  read more

Myers v, Ocean City Bd. of Adj., ___ N.J. Super. ___ (App. Div. 2015).  This opinion by Judge Ostrer, issued last Friday, addresses N.J.S.A. 40:55D-62(a), a provision of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”).  The issue, a purely legal one that was subject to the de novo standard of review, was whether a governing body, when presented with a planning board’s reexamination report regarding the municipality’s master plan, must either adopt an ordinance consistent with the recommendations contained in that reexamination report or affirmatively reject the changes after a hearing.  Plaintiffs were homeowners who would have benefited from a zone change that was one of a number of proposals contained in a reexamination report that Ocean City’s planning board presented to the municipal governing body.  Ocean City’s governing body took no action in response to that proposed zone change and certain others, though it did adopt some other proposals contained in the report.  The Law Division agreed with plaintiffs that the governing body was required either to adopt an ordinance embodying the proposed zone change or reject the change after a public hearing.  The Appellate Division disagreed and reversed that ruling. read more

Jennings v. Stephens, ___ U.S. ___ (2015).  There is a settled principle that an appellate court may affirm on any basis, even if that basis was not relied on by the trial court, and respondents (or, in the federal system, appellees) are normally free to present such arguments on appeal without having to file a notice of cross-appeal.  But sometimes it is not easy for respondents/appellees to know whether they need to file a notice of cross-appeal in order to make certain arguments.   The sometimes indistinct line between when a notice of cross-appeal is necessary and when it is not was the subject of this habeas corpus decision by the Supreme Court of the United States yesterday.  By a 6-3 vote, the Court ruled that this habeas plaintiff, who had filed a brief in the Fifth Circuit defending the decision of the District Court on alternative grounds, need not have filed a notice of cross-appeal in order to make his arguments.  Justice Scalia wrote the majority opinion, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined.  Justice Thomas wrote the dissent, and was joined by Justices Kennedy and Alito. read more

Hargrove v. Sleepy’s, LLC, ___ N.J. ___ (2015).  Today, speaking through Judge Cuff, the Supreme Court issued an opinion on a certified question posed to the Court by the Third Circuit Court of Appeals.  The question posed was “Under New Jersey law, which test should a court apply to determine a plaintiff’s employment status for purposes of the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1, et seq., and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a, et seq.?”  The Supreme Court accepted that question as phrased.  By a 6-0 vote, the Court concluded that the “ABC” test, derived from the New Jersey Unemployment Compensation Act, N.J.S.A. 43:21-19(i)(6), governs the decision of whether a plaintiff’s status is that of an employee or an independent contractor.  Under the “ABC” test, an individual is to be considered an employee, rather than an independent contractor, unless the employer proves that (A) “it neither exercised control over the worker, nor had the ability to exercise control in terms of the completion of the work,” (B) “the services provided were either outside the usual course of the business … or that such service is performed outside of all the places of business of the enterprise,” and (C) the plaintiff “has a profession that will plainly persist despite the termination of the challenged relationship.”  read more

Costa v. Costa, ___ N.J. Super. ___ (App. Div. 2015).  This decision today by Judge Leone is a matrimonial appeal.  Plaintiff Sandra Costa and defendant Paulo Costa, having married in 1994, were divorced in 2006 after having had two children.  They agreed to joint legal custody over the children, with plaintiff having primary residential custody and defendant having visitation rights.  The parties also agreed to consult with each other about issues relating to the childrens’ health, education, and welfare.  In 2009, defendant moved to a small city in Brazil.  He maintains contact with his children by telephonic and electronic means, but he no longer visits them.  Thus, since 2009, plaintiff has effectively had full physical custody of the children. read more

Shelton v. Bledsoe, ___ F.3d ___ (3d Cir. 2015).  In Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), a damages class action under Federal Rule of Civil Procedure Rule 23(b)(3), the Third Circuit manufactured a wholly new and onerous requirement that the identities of class members be fully “ascertainable” in order to obtain class certification.  That was so even though the subject of the suit was a consumer product of which no sales records are normally kept by most retailers or by the defendant manufacturer, making it at best extremely difficult to certify many consumer class actions.  It appeared that Carrera might sweep all before it, as some courts elsewhere adopted its misguided viewpoint.  But some other courts rejected Carrera, and the fact that four experienced Third Circuit judges issued a compelling dissent from the denial of en banc review in Carrera gave reason to believe that the court might perceive that it had gone too far. read more