On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4411-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.S. Fisher and C.L. Miniman.
Plaintiff commenced this action in 1998, alleging that defendants Douglas Broadcasting, Inc. (Douglas), WNJR Radio, Inc. (WNJR), and two individuals, discriminated against her based on race between May 1994 and April 1996, and wrongfully discharged her on April 24, 1996. Final judgment by way of default was entered against Douglas and WNJR, on September 13, 2001, in the amount of $1,149,556.62.
Unable to collect payment from the judgment debtors, plaintiff filed an amended complaint on July 11, 2003 to add claims against, among others, Darryl B. Thompson (Thompson), TSG Capital Group, LLC (TSG), and Multi-Cultural Radio Broadcasting, Inc. (Multi-Cultural). Plaintiff asserted that these defendants were either successors to Douglas or WNJR, and thus should be held responsible for the 2001 money judgment entered in her favor, or that they had engaged in acts or conspired to frustrate her collection efforts against the judgment debtors or other responsible parties.
In this appeal, plaintiff seeks the reversal of two orders, both entered on August 4, 2006, which resolved all remaining issues as to all parties and dismissed her claims against TSG, Thompson and Multi-Cultural. But for one modification, we find no merit in plaintiff's arguments and affirm.
TSG and Thompson moved for dismissal, claiming they were not susceptible to personal jurisdiction in New Jersey. TSG provided sworn evidential material that it was a Delaware limited liability company, which provides investment consulting services to private equity funds from its place of business in Connecticut. It asserted, among other things, that it had never registered to do business in New Jersey, that none of its clients were located in New Jersey, that it had not maintained an office, telephone, telephone listing or post office box in New Jersey, that it had never owned property in New Jersey, and that it had never employed plaintiff. Thompson asserted that he was an officer of TSG engaged in TSG's business in Connecticut, not New Jersey.
In its supporting certification, TSG acknowledged that a different entity -- TSG Associates II, Inc. (Associates) -- had acquired control of Douglas and other related entities, including WNJR, and later sold assets of Douglas to Multi-Cultural. Specifically, TSG revealed that Associates had owned all of the voting stock of PAR Holdings, Inc. (PAR), which had purchased the stock of Douglas for nearly $30 million. PAR subsequently sold some of Douglas's assets to Multi-Cultural for $54 million by way of an asset purchase agreement executed on January 26, 1998. Thompson acknowledged he was once an officer of Douglas, but that he did not assume that office until June 1996, after the incidents upon which plaintiff's claim of racial discrimination had occurred and after plaintiff had been terminated. Thompson also stated that he was an officer of Associates when PAR acquired Douglas's stock, but that he personally held none of PAR's voting stock, and that neither TSG nor Thompson were parties to the asset purchase agreement.
On October 27, 2005, the trial judge denied without prejudice the motion of TSG and Thompson for dismissal based upon the lack of personal jurisdiction. Rather than attempt to reach the merits regarding the contacts, if any, of TSG and Thompson with New Jersey, the judge correctly allowed plaintiff to take discovery on these issues. The judge defined the scope of this "limited discovery" as permitting plaintiff ninety days to serve "[r]equests for the production of documents and [to take the] deposition of Darryl B. Thompson on issues confined to in-personam jurisdiction, the relationship among and between Mr. Thompson and the various defendants and any other person or entity involved with him and the ultimate disposition of the $54,000,000 from the sale of Douglas Broadcasting and WNJR."
Plaintiff failed to serve any discovery requests on TSG and Thompson. The trial judge later granted, on January 4, 2006, plaintiff's request for an extension of the discovery period until February 28, 2006. Notwithstanding, plaintiff failed to serve any discovery requests on TSG or Thompson at any time.
However, contrary to the express terms of the October 27, 2005 order -- which authorized only plaintiff to seek jurisdictional discovery -- Multi-Cultural served interrogatories and noticed the deposition of Thompson, and later moved to compel responses to its discovery demands, which TSG and Thompson resisted. By way of an order entered on April 12, 2006, the trial judge denied Multi-Cultural's motion. We discern from the judge's handwritten comment in the April 12, 2006 order -- "[d]iscovery at this time is limited to that set forth in the [o]rder entered on Oct[ober] 27, 2005" -- that the judge denied Multi-Cultural's motion because she had determined that the October 27, 2005 order was limited to authorizing only plaintiff to take jurisdictional discovery.
As we have observed, plaintiff served no discovery requests on TSG or Thompson during the authorized period, nor did plaintiff serve any requests in the months that followed. As a result, on June 6, 2006, TSG and Thompson renewed their motion to dismiss for lack of personal jurisdiction. Despite having failed to seek jurisdictional discovery since being permitted to do so eight months earlier, on July 12, 2006, plaintiff cross-moved to compel responses from TSG and Thompson to the discovery demands served by Multi-Cultural. In her oral decision of August 4, 2006, the trial judge determined that plaintiff had failed to serve any ...