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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Refer(ral) Madness: Court Nixes Fee Sharing For Lawyer Who Referred Case To Lawyer Who Referred Case To Lawyer Who Handled Case

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

Ripped dollar (pd)
Under New Jersey law, lawyers can, in some instances, share fees with lawyers at a different firm to whom they refer a case. But what happens when Lawyer A refers a case to Lawyer B who then refers the case to Lawyer C? Can Lawyers A and B share in the recovery that Lawyer C achieves for the client? This was the question the Appellate Division faced in Weiner & Mazzei, P.C. v. The Sattiraju Law Firm, PC. The answer, in that case, was "no," but there are instances where this type of three-way sharing would be appropriate.

In Weiner & Mazzei, a lawyer was contacted by a family friend in need of advice on a possible workplace injury/change of employment case. The lawyer advised the family friend that he appeared to have a valid claim and referred the family friend to an attorney who specialized in that area of law. The first lawyer claimed that he told the family friend that the second lawyer would take the case on contingency and that the first lawyer would be paid a referral fee. The family friend denied ever being told about the referral fee.

After speaking with the first lawyer, however, the second lawyer also refused the case but agreed to refer it to defendant, a law firm with at least one certified civil trial attorney. The second lawyer had a standing referral agreement with defendant and defendant agreed to abide by the usual one-third referral fee contained in that agreement.

Defendant prosecuted the client's employment case and eventually reached a confidential settlement with the client's former employer. Plaintiffs — the first and second lawyers — sued, claiming they were jointly entitled to one-third of defendant's fee. Defendant moved for summary judgment, which was originally denied, but was later granted upon reconsideration. Plaintiffs appealed.

 

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Are Exceptions Starting To Swallow The “American Rule” In New Jersey?

Constitution (pd)The answer to that question would appear to be: it depends who you ask. In a pair of decisions released on April 26, 2016, Innes v. Marzano-Lesnevich and In Re Estate of Folcher, the New Jersey Supreme Court addressed the “American Rule” — the idea that each party to a lawsuit is responsible for its own attorney’s fees — and specifically whether to narrow or expand certain common-law exceptions to that rule. At the center of the two decisions was Justice LaVecchia, who authored the majority opinion in Folcher and the dissent in Innes. These decisions leave little doubt that this is not the last we have heard from the Supreme Court on the parameters of the American Rule.

First, a brief history of the American Rule in New Jersey. In 1948, New Jersey adopted a new Constitution and re-organized its court system. As part of this re-organization, and as it relates to the awarding of prevailing party attorney’s fees, New Jersey could have adopted either the English Rule, which allows for the liberal awarding of such fees, or the American Rule, which does not. New Jersey chose the latter. This decision is currently embodied in Rule 4:42-9, which only allows for eight exceptions to the general rule.

Over the years, however, New Jersey courts have created common law exceptions to the American Rule. These cases have followed two, independent tracks, one arising in the context of the attorney-client relationship and one arising in the context of estate administration.

 

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Court Adopts Low Tech Solution to High Tech Evidence Problem

Smart phone(PD)
Litigation has been transformed over the past decade or so by e-discovery. An entire industry has developed around the collection and presentation of emails, text messages, social networking posts, etc. In large commercial cases, it is not unusual to have an outside vendor handling this evidence from discovery through trial. But what about a different kind of case, for example, a contested domestic violence hearing, where the victim, often acting pro se, comes to court with a smart phone containing allegedly threatening text messages, and seeks to introduce those messages into evidence.  They only exist on the phone, so there is nothing that the victim can physically introduce into evidence, and therefore no documentary evidence of the messages that can be reviewed on appeal. How then does a court accept evidence from a plaintiff's cell phone into the court record?

This was precisely the question facing the court in E.C. v. R.H., a recent unpublished Law Division decision. In that case, plaintiff alleged that defendant harassed her through unwanted texts, social media posts, and voice mails. She asked the court to enter a restraining order against defendant. At the start of the hearing on her application, plaintiff sought to introduce evidence of several allegedly harassing communications that were stored on her cell phone. The court observed that the court rules, which were designed to handle tangible evidence, were not designed to handle a request like this: "[S]ome of the more traditional methods of introducing evidence into court do not address the specialized needs and practical problems which may arise when parties come into court and seek to introduce information stored on their cell phones directly into evidence." The Court further observed that this problem was exacerbated in the domestic violence context, which involves "expedited summary proceedings [and] self-represented litigants who have little or no legal training at all." 

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Oops?!? Failure To Include Transcript In Appellate Record Results In Harsh Sanction

by:  Peter J. Gallagher (@pjsgallagher)

It's not quite "deflategate" but the U.S. Circuit Court of Appeals for the Second Circuit recently reminded all of us that rules are rules and they need to be followed whether they involve the air in a football or the contents of an appellate record.

In Lehman Brothers Holdings, Inc. v. Gateway Funding Diversified Mortgage Services, L.P.,  plaintiff alleged that defendant was required to "make good on four mortgage loans" that plaintiff's subsidiary had purchased from defendant's predecessor ten years earlier. The district court eventually granted plaintiff's summary judgment motion, and held that defendant was liable to plaintiff for an amount totaling around $450,000 plus interest. The reasons for the district court's decision are not as interesting as what happened to defendant when it appealed that decision.

 

 

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Even in Texas It Is Not OK For A Judge To Share Details Of A Pending Trial Over Facebook

 by:  Peter J. Gallagher (@pjsgallagher)

I recently wrote an article for law360.com about when, if ever, it is appropriate for active judges to become “friends” with lawyers on Facebook and other social media. Courts and ethics authorities in several states have weighed in on the issue, with some banning judges from “friending” lawyers who regularly appear before the judge and others permitting all such “friending” unless it violates one of the canons of the Code of Judicial Conduct (e.g., the prohibition against ex parte communications between a judge and counsel).

According to a recent article from the Texas Lawyer (h/t Above the Law), Judge Michelle Slaughter, a judge on the Texas state district court, got herself into some hot water, not for the “friends” she kept on social media, but for broadcasting details of a pending trial to those “friends” over Facebook, including the following:

On the first day of testimony, Slaughter posted the following comments on her Facebook page: "Opening statements this morning at 9:30 a.m. in the trial called by the press 'the boy in the box' case"; "After we finished day 1 of the case called the 'boy in the box' case [the defendant was charged with unlawful restraint for allegedly keeping a 9-year-old boy in a 6 feet by 8 feet wooden enclosure that had been used as the child's bedroom], trustees from the jail came in and assembled the actual 6'x8' 'box' inside the courtroom!"; and "This is the case currently pending in the 405th!" The post included a link to a Reuters article about the case.

The "actual box" comment referenced evidence that had not yet been presented in the trial, and the Reuters article contained extraneous information that had also not been presented in the case.

Somewhat ironically, Judge Slaughter’s Facebook posts came after she warned the empaneled jury not to discuss the case with anyone, including over Facebook and other social media.

 

 

 

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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.