Opinion
Civil No. 02-4929 (JBS).
February 22, 2005.
Matthew J. Jeon, MATTHEW JEON, P.C., Palisades Park, New Jersey, Attorney for Plaintiff.
Mario Joseph D'Alfonso, D'ALFONSO CAMACHO, P.A., Cherry Hill, New Jersey, Attorney for Defendant Morales.
OPINION
Plaintiff, Young Pil Park, claims Defendants forcibly removed her from, and took possession of, her massage therapy business located in Deptford, New Jersey. Park brought this action seeking damages as well as injunctive relief ordering the return of her property. Defendant Morales ("Defendant") now seeks summary judgment in her favor.
The defendants named in the Amended Complaint are Timber Creek Plaza, LLC; Sun Morales; Shopping Center Associates; and Myung Ran Kim. Shopping Center Associates was allegedly served on December 10, 2002 [Docket Item 12] but no answer has been filed. Myung Ran Kim was never served, as the summons was returned unexecuted on December 18, 2002. [Docket item 14.] Plaintiff dismissed Timber Creek Plaza by stipulation filed March 26, 2003. [Docket Item 20.] Sun Morales thus appears to be the only viable Defendant remaining.
Additionally, on December 4, 2002 Morales cross-claimed against Kim (though the pleading is improperly captioned as a third-party complaint) and filed a third-party complaint against Kim's husband Ryoo Jin Cheol, third-party Defendant, [Docket Item 9], neither of whom answered the pleading. Nothing on the docket indicates that Kim or Cheol were served with process or Defendant's Cross-Claim and Third-Party Complaint.
Finally, also on December 4, 2002, Morales counterclaimed against Park. [Docket Item 9.] There is no indication Plaintiff has responded to Morales' counterclaim, which seeks damages for Plaintiff's allegedly frivolous lawsuit, although reciting no statutory basis. [Docket Item 9.]
I. BACKGROUND
In February 2001, Myung Ran Kim purchased a massage therapy business located at 1135 Huffville Road in Deptford, New Jersey, from Defendant Sun Ok Morales. (Def. Ex. A, B.) The premises on which the business was located had been leased by Morales from Timber Creek Plaza, Shopping Center. Kim and Morales thereafter entered into a sublease agreement. (See Pl. Ex. 2.) The agreement was a term of years contract from Morales to Kim set to commence on February 1, 2001, and expire on December 30, 2002. (Id.) Though it is not clear from the record whether Morales' original lease required the permission of the lessor before a sublease agreement could be made, Defendant Morales represents in her Brief that Morales and Kim never "secure[d] a sublease from the Timber Creek Plaza, LLC." (Def. Br. at ¶ 3.)
On February 12, 2002, Timber Creek Plaza Shopping Center was sold to Timber Creek Plaza, LLC ("Timber Creek"). (Def. Ex. E.)
Though signed by Morales, the landlord on the agreement is listed as "Shopping Center Associates, Bernard Berkhoff." (Pl. Ex. 2.)
According to Plaintiff's Complaint, on or about January 22, 2002 Plaintiff Young Pil Park purchased the massage business from Kim for $70,000. (Am. Compl. ¶ 7.) On or about that same date, Plaintiff claims she took possession of the premises, began renovations and conducted business therein as "41 Accupressure Therapy." (Id. at ¶ 8; Park Cert. ¶ j.) Defendant Morales claims that Park took possession from Kim without Morales' knowledge. Ryoo Jin Cheol, Kim's husband, admits that without Morales' knowledge or consent, he did, in fact, sell the business to Park in January. (Cheol Aff. ¶¶ 4-5 at Def. Ex. A; Kim Aff. ¶¶ 3-4 at Def. Ex. B.)
Plaintiff claims that for the months of February through April of 2002, she paid rent directly to Timber Creek. (Am. Compl. at ¶ 9.) Meanwhile, on March 19, 2002, Morales and Kim entered into a second agreement to sublease the premises. That agreement was set to commence on April 1, 2002 and continue from month to month. (Def. Ex. C.) By letter addressed to Kim and Park, dated March 28, 2002, Defense Counsel Mario D'Alfonso sent notice of termination of the original Morales-Kim sublease to the premises. (Def. Ex. D.) Defendant Morales maintains that she had learned the previous month that Park was employed by Kim to run Kim's massage business. (Def. Br. at ¶ 7.)
According to Plaintiff, on or about June 26, 2002 Defendant Morales and others arrived at the premises and forcibly removed Plaintiff from the store and discarded certain of her property. That alleged incident has given rise to this cause of action wherein Plaintiff seeks damages under N.J.S.A. 2A:39-8 and 2A:33-1 as well as injunctive relief ordering the return of her property. Defendant Morales now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
Though the Amended Complaint alleges this incident occurred on May 26, 2002, counsel at oral argument agreed that the date in question is June 26, 2002. The following month, in July, Morales sold the business to Peggy Cho. (Pl. Ex. E.) The record also contains a November 2002 sale agreement by which Kim sold the business to Morales. (Kim Aff. ¶ 5 at Def. Ex. B; Pl. Ex. 4.)
Plaintiff also seeks damages for conversion and trover under N.J.S.A. 2A:59-10. That statute was repealed in 1995 and, thus, provides no relief for Plaintiff here. To be sure, a party "seeking recovery of goods wrongly held by another" may bring an action for replevin under N.J.S.A. 2B:50-1. That cause of action, however, has not been pleaded here. Additionally, Plaintiff alleges in Count 1 a deprivation of her Due Process rights under the Fourteenth Amendment. (Am. Compl. ¶ 17.) This cause of action is more properly alleged in Count 2 in conjunction with the wrongful distraint claim as will be explained below.
This Court has diversity jurisdiction under 28 U.S.C. § 1332(a), as Plaintiff is a citizen of New York, the Defendants are alleged to be citizens of New Jersey, and the amount allegedly in dispute exceeds $75,000.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotingLiberty Lobby, 477 U.S. at 255).
Where the non-moving party bears the burden of persuasion at trial, as Plaintiffs do in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
III. DISCUSSION
A. Deprivation of Property Without Due Process of Law
Plaintiff alleges in the Amended Complaint ¶ 17 that the defendants deprived her of her property without due process of law in violation of the 14th Amendment of the Constitution, and she repeats this claim as a Legal Issue in the Final Pretrial Order at ¶ 17A. Deprivation of property without due process of law requires a showing of state action. See, e.g., West v. Atkins, 487 U.S. 42, 49 (1988); Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18 (1982); United States v. Classic, 313 U.S. 299, 326 (1941). Plaintiff has come forward with no evidence to demonstrate that Defendant Morales was exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law." West v. Atkins, 487 U.S. at 49 (quoting Classic, 313 U.S. 326). Thus, there is no disputed issue of material fact and Plaintiff's 14th Amendment claim must fail for lack of state action. This claim is incorporated in both Counts 1 and 2 and summary judgment will be entered in Morales' favor in the accompanying Order.
Similarly, to the extent Park is arguing that the alleged wrongful distraint under N.J.S.A. 2A:33-1 constitutes state action despite Morales' failure to seek the assistance of a state official, that claim is also insufficient as will be explained below.
B. Forcible Entry and Detainer — N.J.S.A. 2A:39-2
"The origin of an action for forcible entry and detainer is rooted in a recognition of the right, at common law, to protect one's property." 35A Am. Jur. 2D Forcible Entry and Detainer § 2 (2001). Presently, such actions "generally refer to proceedings having to do with a summary process for the prompt determination of the right to the possession of real property, and thus such proceedings are primarily dependent on the construction, scope, and application of the particular state statutes." Id. at § 3. New Jersey's forcible entry and detainer statute provides, in pertinent part:
If any person shall enter upon or into any real property and detain or hold the same with force, whether or not any person be in it, by any kind of violence whatsoever, or by threatening to kill, maim or beat the party in possession, or by such words, circumstances or action as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors, or carrying away the goods of the party in possession, or by entering peaceably and then, by force or frightening by threats, or by other circumstances of terror, turning the party out of possession, such person shall be guilty of a forcible entry and detainer within the meaning of this chapter.
N.J.S.A. 2A:39-2. The remedy for a violation of this statute is provided for by N.J.S.A. 2A:39-8, stating that a plaintiff who is successful under the act "shall be entitled to possession of the real property and shall recover all damages proximately caused by the unlawful entry and detainer including court costs and reasonable attorney's fees." In those instances where return to possession would not be appropriate, a successful plaintiff shall be awarded treble damages. N.J.S.A. 2A:39-8.
In most states, "it is immaterial in a suit for forcible entry and detainer whether plaintiff has the legal right of possession, and the action lies so long as the plaintiff had peaceful prior possession and was forcibly put out of that possession by the defendant, even if the plaintiff was devoid of any of the muniments of title or was a trespasser." 35A Am. Jur. 2DForcible Entry and Detainer § 18 (2001). See, e.g., Allen v. Harris, 755 S.W.2d 393, 395 (Mo.Ct.App. 1988) ("In an action of forcible entry and detainer, the sole issue is a question of possession, and not the right of possession, since one may be wrongfully in possession, yet he cannot be dispossessed against his will."); Floro v. Parker, 205 So. 2d 363, 365-66 (Fla.Dist.Ct.App. 1967) (holding legal right of possession "immaterial" in an action for forcible entry and detainer). In New Jersey, however, the plaintiff must make a showing of legal actual possession at the time of entry by the defendant as well as a showing of legal entitlement to actual possession. Seidman v. John Craven Sons, 143 A. 726 (N.J. 1928). To be sure, "title shall not be an issue in any [forcible entry and detainer] action. . . ." N.J.S.A. 2A:39-7. Nonetheless, it is settled in New Jersey in the context of such actions that "mere occupancy or personal presence upon the ground is not sufficient to constitute that possession which the law clothes with legal rights. . . ."Schwinn v. Perkins, 78 A. 19, 21 (N.J. 1910).
The court in Seidmen had before it section 96 of the District Court Act, 2 N.J. Comp. Stat. p. 1895. The language of that statute differs only slightly from the relevant provisions of N.J.S.A. 2A:39-2:
If any person shall enter upon or into any lands, tenements or other possession, and detain or hold the same with force or strong hand, or with weapons, or breaking open the doors, windows or other part of a house, whether any person be in it or not, or by any kind of violence whatsoever, or by threatening to kill, maim or beat the party in possession, or by such words, circumstances or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors, or carrying away the goods of the party in possession, or by entering peaceably and then turning by force or frightening by threats, or by other circumstances of terror, the party out of possession; in any such case every person so offending shall be guilty of a forcible entry and detainer within the meaning of this act.
Here, Defendant argues that there is an absence of evidence in the record indicating that Park was legally entitled to possession of the premises. Notably, Park is not a named party toany contractual agreement found in this record. To be sure, in a letter sent to Defense counsel on May 30, 2002 in response to the notice of termination sent to Kim and Park, Plaintiff's counsel at the time, In Yong Yi, Esq., refers to his client as the "tenant" of the premises at issue. (Pl. Ex. B.) Moreover, the March 28, 2002 notice of termination letter was addressed to Kimand Park. Despite this circumstantial evidence of legal possession, however, Defendant argues that any agreement by Park relating to the premises was done without her knowledge or consent, thereby violating the terms of the original sublease with Kim and, thus, voiding any such agreement. (Pl. Ex. 2, cl. 3.)
Defendant's assertion is flawed both as a matter of policy and law. In the first instance, the Court is reluctant to ignore a sublease made by Park by reason of her failure to obtain the original sublessor's consent, while Defendant herself admittedly was party to a sublease secured without the lessor's permission. In any event, Park's failure to secure the permission of Morales prior to subleasing the premises would not by itself void that agreement. "As a general rule the restriction against lease transfers contained in an express provision in the lease is viewed as a condition subsequent. The lessee may therefore transfer despite the restriction, and the transfer is effective until avoided [sic] by the lessor." Xerox Corp. v. Listmark Cmputer Systems, 361 A.2d 81, 85 (N.J.Super. App. Div. 1976). Indeed, "a covenant in a lease against . . . subletting is personal to the lessor; it is made for his benefit and may be availed of only by him or his successors in interest. He may waive or ignore a breach thereof." Stark v. Nat'l Research and Design Corp., 110 A.2d 143, 148 (N.J.Super. App. Div. 1954). Thus, contrary to Defendant's assertions, any sublease agreement entered into by Park was not void ab initio for failure to obtain Morales' consent.
Regardless, there are genuine issues of disputed fact which require that the instant motion be denied as to the forcible entry and detainer claim. To begin with, a reasonable jury could conclude, based on the facts here, that Park was in actual legal possession of the premises on the date of the alleged incident. To be sure, as already noted, Park is not a named party to any contractual agreement found in this record. However, there is other evidence from which a reasonable jury could determine actual legal possession.
First, Plaintiff alleges she purchased the business in January 2002, a fact admitted by Kim and her husband. (Cheol Aff. ¶¶ 4-5 at Def. Ex. A; Kim Aff. ¶¶ 3-4 at Def. Ex. B.) The timing of the second Morales-Kim sublease only strengthens the likelihood that Park also agreed with Kim at that time to sublease the premises. Specifically, Kim purchased the business in February of 2001 and immediately entered into a sublease with Morales. That agreement was not set to expire until December 2002. According to Plaintiff, she bought the business from Kim in January 2002. Shortly thereafter, Morales entered into a second sublease with Kim even though their original agreement would remain in effect until December. A reasonable jury could extrapolate from that evidence that Morales became aware of a sublease agreement between Park and Kim and, in an attempt to circumvent Park's entitlement to the premises, entered into a second sublease with Kim. Indeed, the March 28, 2002 notice of termination letter sent by Defense counsel to Kim and Park refers only in general terms to "your lease." (Def. Ex. D.)
Defendant, without citing any case law or statutory authority, argues that this evidence is insufficient as a matter of law to prove that Park was in legal actual possession of the premises. Specifically, Defendant argues that an unwritten commercial sublease is void. Until 1994, Defendant would have been correct. Indeed, under N.J.S.A. 15:1-5(d) as it then existed, no action could be brought upon "[a] contract for sale of real estate, or any interest in or concerning the same" unless that agreement was in writing and signed by the party (or his authorized agent) to be charged therewith. That subsection, however, was deleted by amendment in 1995. Accordingly, Defendant's argument is in error.
To be sure, unwritten agreements to transfer an interest in real estate "are not effective against bona fide purchasers for valuable consideration without notice. . . ." N.J.S.A. 25:1-14. For present purposes, however, that provision is not relevant.
The second issue of material fact is whether there was any involvement by Morales in the alleged forcible removal of Park from the premises. Park's attorney represented at oral argument that Park will testify at trial that Morales, accompanied by two very large men, forcibly entered the premises and removed Park. Morales denies that such an incident occurred and that even if it did, she was not involved. These opposing accounts of the incident in question present factual issues bearing directly on whether N.J.S.A. 2A:29-2 has been violated. Resolution of such factual disputes is more properly left to the jury.
C. Wrongful Distraint — N.J.S.A. 2A:33-1
Plaintiff Park additionally seeks damages under N.J.S.A. 2A:33-1 et seq. for wrongful distraint. (Am. Compl. at 4.) "Distraint," or "distress," refers to the "seizure of another's property to secure the performance of a duty, such as the payment of overdue rent." Black's Law Dictionary 487 (7th ed. 1999). As its language makes clear, the distress statute governs landlordtenant relationships. See N.J.S.A. 2A:33-6. The New Jersey Supreme Court had the opportunity to examine the constitutionality of that statute in Callen v. Sherman's Inc., 455 A.2d 1102, 1114 (N.J. 1983). There, a municipal constable, at the defendant's request, had distrained the plaintiff's property for past rent due. The court initially made the following observations about the history of the law of distraint:
Distraint of a tenant's goods by a landlord may be the sole surviving relic of the early common law's tolerance of self-help. Nonetheless, since at least the thirteenth century, the common law has condoned the constraint as an exception to the principle that "selfhelp is an enemy of the law, a contempt of the king and his court." Other forms of self-help, such as replevin, generally have yielded to the contemporary belief that society is better off if adversaries who cannot otherwise settle their differences proceed before an impartial third party such as a mediator, arbitrator of judge. . . .
In New Jersey, statutes have provided for distraint since 1795, and the current act, N.J.S.A. 2A:33-1 to -23, still exhibits its feudal origins. Although neither the statutes nor the common law has ever specified the form that distraint should take, padlocking of the tenant's premises has long existed as an accepted method of distraint.Id. at 1105 (internal citations omitted). The court ultimately determined the statute to be unconstitutional under the Fourteenth Amendment Due Process Clause, holding that "without judicial approval, a lessor cannot help himself to a tenant's goods" under N.J.S.A. 2A:33-1. Callen, 455 A.2d at 1113.
The court then proceeded to detail all of the technical aspects of the current rule relating to, for example, pre and post-distraint notice, participation of government officials, impoundment and sale of distrained goods, and damage recovery for wrongful distraint. Id. at 1105-06.
Here, according to Plaintiff, Defendant Morales did exactly that which the New Jersey Supreme Court proscribed in Callen. That Morales may have distrained Park's property without the aid of a state official will not affect the Court's analysis of Plaintiff's claim. Indeed, the court's holding in Callen was shaped as much by the fact that the landlord had requested the aid of a constable as it was by the framework of the statute itself. Id. at 1109. See N.J.S.A. 2A:33-14 ("All sheriffs and constables shall aid in the execution of the provisions of this chapter. . . ." (emphasis added)); Van Ness Indus., Inc. v. Claremont Painting Decorating Co., 324 A.2d 102, 106 (N.J.Super. Ch. Div. 1974) ("The procedural requirements of a New Jersey distraint reflect active or direct state action since a public official acts in concert or on behalf of an individual in performing the act.") For that reason, though the court limited its holding to a distraint by a constable or sheriff, it noted that distraint by a landlord is its "functional equivalent."Callen, 455 A.2d at 1112. As such, the court warned landlords to "be well advised not to rely on any assumed difference between distraint performed with or without the aid of a constable."Id.
Here, Defendant argues that there is no proof before the Court that Plaintiff owned any of the property distrained and, thus, is not entitled to seek the protections of N.J.S.A. 2A:33-1. Defendant is correct that Plaintiff's evidence of ownership is insufficient as a matter of law. Indeed, counsel for Plaintiff conceded at oral argument that Park is not able to produce evidence of ownership of any goods that she allegedly purchased for the business — not even a single receipt for goods purchased or services rendered — even though she claims to have put tens of thousands of dollars into the business and supposedly owned a credit card machine. As noted above, where the nonmoving party bears the burden of persuasion at trial, as Plaintiffs do here, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. Defendant Morales has successfully done so here. Because Plaintiff's evidence on the issue of ownership is a mere scintilla and is "not significantly probative," the court will grant summary judgment as to the wrongful distraint claim.Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
Because Plaintiff can not make out a claim for wrongful distraint under N.J.S.A. 2A:33-1, any claim of deprivation of due process as it relates thereto will also be dismissed. As N.J.S.A. 2A:33-1 cannot constitutionally be read to permit such distraint without judicial approval pursuant to Callen, supra, the State has not ratified such conduct by a private person such as Defendant Morales or her agents. In any event, that claim is meritless for the reasons already stated, supra, Section III(A).
Specifically, Plaintiff Park will be unable to prove that the distraint caused damage to any of her property. Her affidavit in opposition to this summary judgment motion is focused upon the alleged lawfulness of her possession, and not upon any loss of personal property used in her massage business. (Park's Cert. in Opp., undated, filed Jan. 28, 2005.) Discovery concluded long ago and the record is devoid of any listing of Park's allegedly damaged goods, since Park served no pretrial disclosure of damages information as required by Rule 26(a)(1)(C), Fed.R.Civ.P. This important rule provides that a party must make disclosure, within 14 days after the initial discovery conference, with exceptions not relevant here, of the following:
[A] computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered. . . .
Rule 26(a)(1)(C), Fed.R.Civ.P. Defense counsel has appropriately asserted that Plaintiff may not, in the absence of seasonable supplementation under Rule 26(e)(1) — which still has not been offered by Plaintiff's counsel — introduce proof of damages at trial which has not been provided by way of early disclosures or discovery. See Rule 37(c)(1), Fed.R.Civ.P.
Rule 37(c)(1), Fed.R.Civ.P., states:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.
Likewise, Plaintiff's portion of the Joint Final Pretrial Order contains no proposed exhibits related to her alleged damages, such as business records, tax returns, contracts, receipts, photographs, inventories and the like. Plaintiff lists only four exhibits, consisting of the D'Alfonso notice of termination, a letter dated February 12, 2002 from Shopping Center Associates, a current proposed advertisement, and a copy of Defendant's business logo. (See Joint Final Pretrial Order, filed Oct. 15, 2004, at p. 3.) The Joint Final Pretrial Order, when entered, shall not be amended absent a showing of manifest injustice under Rule 16(e), Fed.R.Civ.P.
Plaintiff's counsel attempted no such showing in any event. To this day there are no documents or compilations regarding any sort of property for which Park seeks compensation in this trial.
Accordingly, Defendant Morales is entitled to summary judgment in her favor as to Count 2.
Finally, as noted in note 1, supra, process was not served on Defendant/Crossclaim Defendant Myung Ran Kim and Third-Party Defendant Ryoo Jin Cheol in the two-plus years since these pleadings were filed, and the pleadings against them will be dismissed for failure to serve process within 120 days pursuant to Rule 4(m), Fed.R.Civ.P. Similarly, it appears that Plaintiff has abandoned her claim against the former landlord, Defendant Shopping Center Associates, as the Joint Final Pretrial Order is silent as to any cause of action against Shopping Center Associates, which had apparently transferred ownership of the premises to former Defendant Timber Creek Plaza, LLC at least four months before the eviction and distraint complained of herein; accordingly, the Amended Complaint will also be dismissed as to Defendant Shopping Center Associates for failure to prosecute pursuant to Local Civil Rule 41.1(a), unless objection is received within three (3) calendar days hereof, at which time the dismissal will be deemed with prejudice, as set forth in the accompanying Order.
IV. CONCLUSION
Because there is a question of fact as to whether Park was legally entitled to possess the real property at issue, summary judgment is not appropriate at this time as to the claim of forcible entry and detainer. However, Plaintiff's failure to produce a shred of evidence of ownership of the personal property allegedly distrained necessitates that Defendant's motion be granted as to the distress claim. Finally, all claims of deprivation of due process in violation of the Fourteenth Amendment will be dismissed.
ORDER
This matter is before the Court upon motion by Defendant Sun Ok Morales for summary judgment [Docket Item 28]; andThe Court having considered the written submissions of Defendant and the sworn affidavit of Plaintiff in opposition thereto; and the Court having heard oral argument on February 10, 2005; and
For the reasons explained in the Opinion of today's date;
IT IS THIS 22nd day of February, 2005 hereby
ORDERED that the motion for summary judgment is GRANTED IN PART and DENIED IN PART ; and
IT IS FURTHER ORDERED that the claims for deprivation of property without due process of law contrary to the Fourteenth Amendment are DISMISSED ; and
IT IS FURTHER ORDERED that the claims for wrongful distraint under N.J.S.A. 2A:59-10 and for conversion and trover under N.J.S.A. 2A:59-10 as contained in Count 2 of the Amended Complaint are DISMISSED ; and
IT IS FURTHER ORDERED that the jury trial in this matter is scheduled to commence before the undersigned in Courtroom 4A on Monday, February 28, 2005, at 9:00 a.m., the sole claim remaining therefor being Plaintiff's claim for forcible entry and detainer under N.J.S.A. 2A:39-2, as contained in Count 1 of the Amended Complaint; and
IT IS FURTHER ORDERED that all claims and cross-claims against Defendant/Cross-Defendant Myung Ran Kim and Third-Party Defendant Ryoo Jin Cheol are DISMISSED for failure to serve process pursuant to Rule 4(m), Fed.R.Civ.P.; and
IT IS FURTHER ORDERED that all claims against Defendant Shopping Center Associates are DISMISSED WITHOUT PREJUDICE for failure to prosecute pursuant to L. Civ. R. 41.1(a), unless objection is filed within three (3) calendar days hereof.