“Just Remember, When You Control The Mail, You Control . . . Information.”

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

 Mailbox

Whenever it snows, we shovel out a little area in front of our mailbox because we heard that if the mail carrier cannot easily get to your mailbox, then he won't deliver your mail. This has always annoyed me, but not so much that I ever thought of suing our mailman. The same cannot be said of the plaintiff in Finnemen v. Pollard, who filed a federal lawsuit against his mail carrier for refusing to deliver his mail because his mailbox was broken.
 
The facts in Finnemen are a little sketchy, as plaintiff appeared pro se. Plaintiff's mail carrier, Defendant Maurice Pollard, told plaintiff that he would no longer deliver mail to plaintiff because plaintiff's mailbox was broken. When plaintiff went to the post office, defendant, Jamar (no last name), allegedly told defendant, Janine (also no last name), that plaintiff's mail could not be delivered because of the broken mailbox. Plaintiff claims that this was "a lie" but does not contest that his mailbox was broken. Regardless, Plaintiff alleged that defendants tampered with his mail because, when he visited the post office, he was sometimes able to pick up his mail and sometimes there was no mail for him to pick up. Plaintiff sued under Section 1983, alleging that his civil rights had been infringed by the individual defendants.
 
Defendants moved to dismiss the complaint, and the motion was granted. The district court held that plaintiff "fundamentally alleged" who participated in the alleged scheme to tamper with his mail, but not "how it was done or even how it amounts to tampering with his mail." For example, the district court noted that plaintiff failed to allege that his mailbox was in working order and that the re-routing of his mail was therefore part of a scheme, or that any mail was not turned over to him, or that it was delayed in reaching him. The court relied on another mail tampering case (who knew there was more than one) to hold that the allegations in the complaint did not "nudge his claim . . . across the line from conceivable to plausible" as required under the Federal Rules of Civil Procedure. Although not immediately apparent from the complaint, the district court also held that, to the extent plaintiff was alleging discrimination — "that he has been required to pick up his mail where others have not — he failed to state a claim under this theory as well because he had not alleged that he was treated differently than others or that there was not a rational basis for that treatment.
 

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Havanese Day! Statements on duped dog buyer’s blog not defamatory

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

HavaneseIn Roberts v. Mintz, defendant bought what he believed was a "healthy, nine-month old, purebred Havanese," but what he got was a two-year old dog that was not a purebred Havanese, and was suffering from various health problems. Defendant complained and plaintiffs offered to refund his money in exchange for the dog. Defendant refused. He wanted the refund, but he wanted to keep the dog because he had already incurred $800 in veterinary fees and because he had become fond of the dog, which he named Moose.

One month after buying Moose, defendant began posting about his experience with plaintiffs on his blog. As you probably guessed, the posts were not positive. Eventually, plaintiffs sued in connection with six specific statements defendant made on his blog, which, among other things, accused plaintiffs of being members of a "notorious ring of South Jersey dog grifters," alleged that plaintiffs had been convicted of animal cruelty, claimed that plaintiffs' lived in a "run down farmhouse with 6 children," and described plaintiffs as "despicable human beings" who ran a "fraudulent puppy mill." Defendants also posted that they had heard from others who were "unwittingly scammed" by plaintiffs. Individuals who claimed to be plaintiffs responded to some of the posts in the comments sections of the blog, calling defendant a "liar" and a "jerk," and claiming that he "suffered from 'rage syndrome,' a behavioral condition that afflicts canines."

In lieu of answering plaintiffs' complaint, defendant moved for summary judgment, seeking to have the complaint dismissed. He also served plaintiffs with a frivolous litigation letter. Plaintiffs cross moved for summary judgment and also sought an injunction preventing defendant from defaming them. The trial court granted defendant's motion. It held that plaintiffs were barred from suing in connection with several of the statements because the one-year statute of limitations had expired. In doing so, it rejected plaintiff's claim that the statute of limitations should have been tolled because defendant had committed a continuous tort. The trial court found that the remaining statements were "opinions, epithets, and hyperbole," and were therefore "not sufficiently factual to be actionable."

Defendant then moved for sanctions, and the trial court granted the motion. Although it did no award defendant all of the sanctions he sought, it did award him $25,000 — assessed against both plaintiffs and their counsel — because plaintiffs filed their complaint without sufficient evidentiary support and because several claims were barred by the statute of limitations. 

Both sides then appealed — plaintiffs seeking to reverse the trial court's decision dismissing their complaint, and defendant seeking to reverse the trial court's decision to award him less in sanctions than what he requested

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Another New York Judge Approves Service Of Process Through Facebook

 by:  Peter J. Gallagher (@pjsgallagher)

On Monday, the Daily News reported on a "landmark" ruling by a Manhattan judge allowing a woman to serve her "elusive husband" with divorce papers via Facebook. The judge order that the divorce papers must be sent to the husband over Facebook "once a week for three consecutive weeks or until acknowledged." According to the article, the husband kept in touch with his wife by phone and through Facebook, but that he had no fixed address and refused to make himself available to be served. After all other conventional methods of service failed — he vacated his last known address in 2011, he had no job, the post office had no forwarding address for him, there was no billing address linked to his prepaid cell phone, and the DMV had no record of him — the judge allowed service through Facebook.

While interesting, this is not actually a landmark decision. Less than one year ago, a Staten Island judge permitted service via Facebook in a similar case. (Obviously, since this took place in my ancestral home, it went unnoticed — the latest proof that Staten Island truly is the "forgotten borough.") In that case, also involving a domestic dispute, a man was allowed to serve his ex-wife with "legal notice that he [did not] want to pay any more child support" via Facebook after more conventional methods of service failed.  The man's ex-wife had moved from her last known address and did not provide any forwarding information to the post office. However, she maintained "an active social media account with Facebook," therefore the judge allowed her to be served through that Facebook account.

In addition, several federal courts have also addressed this issue. For example, in one case, the U.S. District Court for the Southern District of New York held that service via Facebook might not, on its own, comport with due process, but it was acceptable as a supplemental method in conjunction with other, more conventional, methods of service. In a different case, a different judge in the U.S. District Court for the Southern District of New York refused to authorize service via Facebook where the plaintiff could not demonstrate that the Facebook profile that the plaintiff proposed to use for service was in fact maintained by the defendant or that the email address listed on the Facebook profile was accessed by the defendant. Although these cases are among the few to have considered the issue, they appear to describe the approach courts are likely to take when faced with a request to permit service via Facebook — if all other methods are exhausted, or service via Facebook is one of several methods to be employed, and if there is some showing that the individual to be served actually maintains and accesses the Facebook account, then service via Facebook would probably be acceptable.

NUB-ish! Arbitrator’s Preliminary Decision On Construction Lien Is Not Law Of The Case

by: Steve P. Gouin

 
In the recently decided Seavey Construction Inc. v. St. Peter, the Appellate Division reversed the Law Division and its construction of the New Jersey Construction Lien Law, N.J.S.A.  2A:44A-1, et. seq. (the Lien Law”).

Under the Lien Law, before a contractor may file a construction lien stemming from a residential project, he must file a Notice of Unpaid Balance and Right to File Lien (“NUB”) and Demand for Arbitration of the NUB with the AAA.  This added step is intended to prevent contractors from filing meritless lien claims against unsuspecting homeowners.  An arbitrator will be assigned to make certain determinations regarding the NUB, such as whether it was filed correctly and states a valid lien claim and whether the homeowner has any valid setoffs or counterclaims.  Once the arbitrator renders his decision, the contractor may file his lien, but may be required to post a bond, to the extent the arbitrator determines that the homeowner’s claims have merit.

In Seavey, the arbitrator ruled in favor of the contractor on the NUB arbitration.  In doing so, it found the homeowner’s counterclaims to be invalid.  Subsequently, the contractor filed a complaint in the Law Division seeking to foreclose on its lien.  The homeowner’s answered and asserted the same counterclaims that the arbitrator had found to be invalid.  The trial court dismissed these counterclaims, on the grounds that the arbitrator had already found them to be invalid.

On appeal, the Appellate Division held that the arbitrator’s determination merely established a “prejudgment lien” which still need to be confirmed in litigation brought pursuant to the lien law.  The arbitrator’s decision does not, as the trial division held, absolve the contractor of the burden of proving the validity of its lien claims at trial.  Moreover, it does not prevent the homeowner’s from raising the same counterclaims as were asserted during arbitration of the NUB.  The Court noted that, to do so, would require the parties “to have completed discovery for all non-lien causes of action within” the thirty day period provided by the Lien Law for the arbitrator to render a decision. 

The Appellate Division also reversed the trial court’s grant of summary judgment on the contractor’s breach of contract and unjust enrichment claims, which the trial court had granted based on the arbitrator’s decision.  The Appellate Court noted that the trial court improperly treated the arbitrator’s decision as one entitling the contractor to a money judgment.  Rather, pursuant to the Lien Law, the Appellate Division held that the arbitrator’s decision, while confirming the validity of the NUB and the underlying lien claim, is not to be used for res judicata or law of the case purposes.