Marsellis-Warner v. Rabens, No. 98-4384 (AJL).

CourtU.S. District Court — District of New Jersey
Writing for the CourtLechner
Citation51 F.Supp.2d 508
PartiesMARSELLIS-WARNER CORP., Plaintiff, v. Charles RABENS, et al., Defendants.
Docket NumberNo. 98-4384 (AJL).
Decision Date24 February 1999
51 F.Supp.2d 508
MARSELLIS-WARNER CORP., Plaintiff,
v.
Charles RABENS, et al., Defendants.
No. 98-4384 (AJL).
United States District Court, D. New Jersey.
February 24, 1999.

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Michael M. Rosenbaum, Brian E. Bragg, Budd Larner Gross Rosenbaum, Greenberg & Sade, Short Hills, NJ, for plaintiff Marsellis-Warner Corp.

James M. McGovern, Jr., Keith B. Bannach, Lomurro, Davison, Eastman & Munoz, P.A., Paragon Corporate Park, Freehold, NJ, for defendant Jack Fernandez.

Robert S. Bonney, Evans Osborne Kreizman & Bonney, Ocean, NJ, for defendants Patricia Fernandez and Paul and Marc Construction, Inc.

Henry First, West Orange, NJ, for Charles Rabens.

OPINION

LECHNER, District Judge.


This is an action brought by plaintiff, Marsellis-Warner Corp. ("Marsellis-Warner"), against Charles Rabens ("Rabens"), Jack Fernandez ("Jack Fernandez"), Patricia Fernandez ("Patricia Fernandez"), Paul and Marc Construction, Inc. ("PAM Co."), and John Does # 1-20 and ABC Corp.-XYZ Corp. (collectively, the "Defendants").1 In a verified complaint filed 21 September 1998, (the "Complaint"), Marsellis-Warner seeks money damages and equitable relief for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1964(c) and 1962(c), and for various state law violations, including fraud, breach of contract, fraudulent misrepresentation, conversion, conspiracy, unjust enrichment, breach of fiduciary duty and state RICO violations. Jurisdiction is alleged pursuant to 18 U.S.C. § 1964(c), 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

Currently before the court is an application by Marsellis-Warner for a preliminary injunction (the "Preliminary Injunction Application") to enjoin the Defendants from dissipating or disposing of any assets. The Preliminary Injunction Application is brought pursuant to the New Jersey Racketeering Act, N.J.S.A. 2C:41-4 ("Section 2C:41-4") and Fed.R.Civ.P. 65 ("Rule 65"). Marsellis-Warner also requests a writ of attachment (the "Attachment Request") against the assets of the Defendants which are located in New Jersey, pursuant to Fed.R.Civ.P. 64 ("Rule 64") and N.J.S.A. 2A:26-2 ("Section 2A:26-2").2

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Also pending is a motion by the Defendants to stay the instant civil action pending completion of a Federal criminal investigation into the conduct of the Defendants (the "Motion to Stay").3

For the reasons set forth below, the Preliminary Injunction Application is granted; the Attachment Request is denied; the Motion to Stay is denied without prejudice.4

Background

A. Procedural History

As mentioned, Marsellis-Warner filed the Complaint commencing this action on 21 September 1998. See Complaint. On the same date, Marsellis-Warner, seeking temporary restraints against the Defendants, applied ex parte for an order to show cause (the "Ex Parte Application"). On 22 September 1998, Judge William Bassler issued an order to show cause (the

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"Order to Show Cause") granting the Ex Parte Application. See Order to Show Cause. The Order to Show Cause set 25 September 1998 as the date on which to hear the parties on the application of Marsellis-Warner for temporary restraints against the Defendants. See Order to Show Cause. The Defendants were directed to submit opposition, if any, by 25 September 1998. See id.

The Order to Show Cause directed the Defendants not to convert, transfer, sell or dispose of or dissipate any property or rights in property in which they possess a legal or ownership interest pending the 25 September 1998 return date. The Defendants also were directed to preserve all documents relating to the allegations set forth in the Complaint. See Order to Show Cause.

On 25 September 1998, Judge Bassler signed a consent order (the "25 September 1998 Consent Order"), pursuant to which the Defendants consented to the terms and provisions set forth in the Order to Show Cause. The 25 September 1998 Consent Order directed the continuance of the temporary restraints granted in the Order to Show Cause until further court order. See 25 September 1998 Consent Order.

Judge Bassler, thereafter, recused himself; that recusal resulted in the transfer of the instant action to the undersigned. On 6 October 1998, an order of reassignment was entered.

By consent order, signed by the undersigned and filed 5 October 1998, (the "5 October 1998 Consent Order"), the temporary restraints granted in the Order to Show Cause were continued pending further court order. A return date of 25 November 1998 was set for the Order to Show Cause. The 5 October 1998 Consent Order further provided: "Any and all affidavits supporting [moving briefs and reply briefs] shall be based solely on firsthand knowledge and shall contain no legal argument." 5 October 1998 Consent Order at ¶ 6.

Following the 5 October 1998 Consent Order, numerous briefs and affidavits were received relating to the Preliminary Injunction Application and the Motion to Stay. Several of the affidavits contained argument of both fact and law in violation of Rule 7.2(a) of the Local Rules Governing the District of New Jersey (the "Local Rules") and the 5 October 1998 Consent Order. In particular, the Supplemental Amsterdam Affidavit originally submitted by Marsellis-Warner in conjunction with the Preliminary Application Reply Brief, attached more than forty documents spread through ten exhibits presenting novel issues.

In a letter, dated 19 November 1998, (the "Defendants' 19 November 1998 Letter"), the Defendants objected to consideration of the Preliminary Injunction Application Reply Brief and the Supplemental Amsterdam Affidavit which, they contended, "present new factual assertions and issues that were not presented in [Marsellis-Warner's] original moving papers[.]" Defendants' 19 November 1998 Letter. The Defendants requested a continuance of the 25 November 1998 return date for the Order to Show Cause and an opportunity to submit a factual response to the new factual allegations of Marsellis Warner (the "Defendants' Request to Respond"). Id. Marsellis-Warner objected to the Defendants' Request to Respond, in a letter, dated 19 November 1998, (the "Marsellis-Warner 19 November 1998 Letter"). See Marsellis-Warner 19 November 1998 Letter.

By order, dated 24 November 1998, (the "24 November 1998 Order"), the 25 November 1998 return date for the Order to Show Cause was continued pending the receipt in chambers of a revised Supplemental Amsterdam Affidavit and the Defendants' Rebuttal Brief responding to the new factual allegations of Marsellis-Warner. See 24 November 1998 Order. The 24 November 1998 Order also directed the parties not to file additional submissions in conjunction with the Preliminary Injunction

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Application. Id. A revised Supplemental Amsterdam Affidavit and the Defendants' Rebuttal Brief subsequently were received in chambers.

The provisions of the 24 November 1998 Order notwithstanding, counsel for Marsellis-Warner submitted a letter, dated 23 December 1998, (the "Marsellis-Warner 23 December 1998 Letter") objecting, inter alia, to the content of the Defendants' Rebuttal Brief and accompanying affidavits. On 4 January 1999, an order to show cause was issued sua sponte (the "4 January 1999 Order to Show Cause"), directing counsel for Marsellis-Warner to show cause why he should not be sanctioned for submission of the Marsellis-Warner 23 December 1998 Letter. See 4 January 1999 Order to Show Cause.

On 11 January 1999, counsel for Marsellis-Warner submitted a letter-brief stating its position in connection with the 4 January 1999 Order to Show Cause (the "Marsellis-Warner 11 January 1999 Letter"). See Marsellis-Warner 11 January 1999 Letter. In a detailed order, dated 27 January 1999, (the "27 January 1999 Order"), it was observed the Marsellis-Warner 23 December 1998 Letter and the Marsellis-Warner 11 January 1999 Letter violated the 24 November 1998 Order and the 5 October 1998 Consent Order, as well as Local Rule 7.1(f), Appendix N. See 27 January 1999 Order. Counsel for Marsellis-Warner was sanctioned in the amount of $250.00. Id.

By order, dated 11 January 1999, (the "11 January 1999 Order"), the return date on which to hear to Preliminary Injunction Application and Motion to Stay was extended. See 11 January 1999 Order. The 11 January 1999 Order also affirmed an order by Magistrate Judge Dennis M. Cavanaugh, dated 17 December 1998, which denied in part the application of Marsellis-Warner to compel discovery and imposed a stay of discovery (the "Discovery Stay") pending the resolution of the Motion to Stay. See 11 January 1999 Order.

As mentioned, a hearing was held on 23 February 1999 to address the Preliminary Injunction Application and the Motion to Stay. During the 23 February 1999 Hearing, Marsellis-Warner stated it had reached a settlement agreement-in-principal with Rabens. The parties subsequently were directed to re-brief the issues relevant to the Motion to Stay. Counsel for Jack Fernandez, Patricia Fernandez and PAM Co. also consented to the restraints proposed in the Preliminary Injunction Application.

B. Facts

1. The Parties

Marsellis-Warner is a paving and excavating contractor which performs work generally for governmental agencies and Fortune 500 companies. See Complaint at ¶ 1. Rabens and Jack Fernandez were employed by Marsellis-Warner as executive vice president and foreman for more than twenty years. See id. at ¶¶ 1, 5, 6. During the course of their employment, Rabens and Jack Fernandez were given full responsibility, authority and discretion to operate a satellite office of Marsellis-Warner located in Morganville, New Jersey (the "South Jersey Office"). See id. at ¶ 1. At the South Jersey Office, Rabens, as executive in charge, supervised the work of Jack Fernandez. Patricia Fernandez, the wife of Jack Fernandez, was at all relevant times the co-owner of PAM Co., a construction...

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18 practice notes
  • Automated Salvage Transport v. Nv Koninklijke Knp, No. CIV.A. 96-369.
    • United States
    • U.S. District Court — District of New Jersey
    • December 23, 1999
    ...Where, as here, "a plaintiff alleges fraud to recover money damages, the fraud is legal in nature." Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 521 n. 11 A. Knowing Misrepresentation Plaintiffs allege that defendants knowingly misrepresented their interest in the ONP — specifically,......
  • Lithuanian Commerce Corp. Ltd. v. Sara Lee Hosiery, Civil Action No. 96-1949.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 12, 2002
    ...of the evidence standard applies to claims of legal fraud. See e.g., Automated Salvage, supra; Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 521 (D.N.J.1999)(Lechner, J.); Italian Fisherman, Inc. v. Comm. Union Assur. Co., 215 N.J.Super. 278, 282, 521 A.2d 912 (App.Div.1987)(preponder......
  • 7-Eleven, Inc. v. Upadhyaya, Civil Action No. 12–5541.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 1, 2013
    ...or misappropriation, even that affecting only private entities, is in the general public interest”); Marsellis–Warner Corp. v. Rabens, 51 F.Supp.2d 508, 533 (D.N.J.1999) (finding that injunctive relief “clearly serves the public interest in preserving the strict fiduciary duty owed employer......
  • Carton v. Choice Point, Civil Action No. 05-5489.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 14, 2006
    ...any act of dominion in denial of another's title to ... chattels, or inconsistent with such title.'" Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 525 (D.N.J.1999) (quoting Mueller v. Technical Devices Corp., 8 N.J. 201, 207, 84 A.2d 620 (1951)). "Accordingly, the elements of common l......
  • Request a trial to view additional results
17 cases
  • Automated Salvage Transport v. Nv Koninklijke Knp, No. CIV.A. 96-369.
    • United States
    • U.S. District Court — District of New Jersey
    • December 23, 1999
    ...Where, as here, "a plaintiff alleges fraud to recover money damages, the fraud is legal in nature." Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 521 n. 11 A. Knowing Misrepresentation Plaintiffs allege that defendants knowingly misrepresented their interest in the ONP — specifically,......
  • Lithuanian Commerce Corp. Ltd. v. Sara Lee Hosiery, Civil Action No. 96-1949.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 12, 2002
    ...of the evidence standard applies to claims of legal fraud. See e.g., Automated Salvage, supra; Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 521 (D.N.J.1999)(Lechner, J.); Italian Fisherman, Inc. v. Comm. Union Assur. Co., 215 N.J.Super. 278, 282, 521 A.2d 912 (App.Div.1987)(preponder......
  • 7-Eleven, Inc. v. Upadhyaya, Civil Action No. 12–5541.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 1, 2013
    ...or misappropriation, even that affecting only private entities, is in the general public interest”); Marsellis–Warner Corp. v. Rabens, 51 F.Supp.2d 508, 533 (D.N.J.1999) (finding that injunctive relief “clearly serves the public interest in preserving the strict fiduciary duty owed employer......
  • Carton v. Choice Point, Civil Action No. 05-5489.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 14, 2006
    ...any act of dominion in denial of another's title to ... chattels, or inconsistent with such title.'" Marsellis-Warner Corp. v. Rabens, 51 F.Supp.2d 508, 525 (D.N.J.1999) (quoting Mueller v. Technical Devices Corp., 8 N.J. 201, 207, 84 A.2d 620 (1951)). "Accordingly, the elements of common l......
  • Request a trial to view additional results

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