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Menoken v. McNamara

April 11, 2008


The opinion of the court was delivered by: Simandle, District Judge



This matter is before the Court on the motion to dismiss by Defendants John J. Murphy, III and Stradley, Ronon, Stevens & Young, LLP [Docket Item 10], in which Defendants Kaufman & Canoles, PC, Workflow Management, Inc., Robert J. Barry [Docket Item 11] and Nicholas C. Bozzi [Docket Item 20] join; and the motion for summary judgment by Defendants Geringer & Dolan, LLC and John T. McNamara [Docket Item 12].*fn1 Plaintiff's opposition consists of a cover letter and the brief his attorney filed in an earlier related action, which does not address the arguments raised in these motions [Docket Item 15]. Thus, the motions are essentially unopposed.*fn2 Nevertheless, the Court has analyzed the legal bases for the requested relief and, for the reasons explained below, the Court shall grant the motions to dismiss and for summary judgment.


This case has an extensive history stretching back more than twelve years. The issues alleged in the present action are integrally related to a federal proceeding filed in this Court in 1996, captioned Menoken v. Standard Forms, Inc., et al., Civil Number 96-1774 (JBS) ("Menoken I") and a second action filed in New Jersey Superior Court in 2002 that was removed to this Court, Menoken v. McNamara, Civil Number 02-3341 (JBS) ("Menoken II").

A. Menoken I

In 1993, Girard Menoken was employed by Delaware Valley Business Forms, Inc. ,("DVBF"), when he suffered severe injuries during a street mugging. During his long rehabilitation, DVBF was acquired by Standard Business Forms, Inc., ("Standard Forms") in a purchase of assets on April 18, 1994. When Menoken's therapist approved his return to work in May 1994, Standard Forms did not permit him to return because it claimed that DVBF had not identified him as an employee in the due diligence process that had preceded the sale of the assets and had not listed him as a DVBF employee who would become a Standard Forms employee on an exhibit to the Asset Purchase Agreement.

On May 26, 1994, Menoken's sister, Cassandra Menoken, who was an Equal Employment Opportunity Commission (EEOC) staff attorney, wrote a letter to Standard Forms demanding that it allow Menoken to return to work. After some negotiation, Menoken returned to work on May 30, 1995. Until August 1995, Menoken's work was satisfactory. Then, his attendance deteriorated. Standard Forms first warned Menoken of the effect of his absences, later suspended him for them, then hired a doctor to assess his condition, then offered him a modified work schedule that he refused, and finally terminated him on May 10, 1996.

On May 15, 1996, Menoken filed suit in the United States District Court for the District of New Jersey. With the amendments to his Complaint from April 1997, Menoken's action in Menoken I was against Standard Forms, DVBF, Nicolas C. Bozzi, president of DVBF, and Pemcor, Inc., asserting claims under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

There was extensive discovery and motion practice. Mr. Menoken was originally pro se but was represented by different attorneys at various stages of the litigation. Eventually this Court granted leave for his sister, Cassandra Menoken, Esquire, to represent him, whereby this Court took the highly unusual step of waiving the rule requiring local counsel under Local Civ. R. 101.1(c)(3). The Court also permitted Ms. Menoken to reargue any issues that had been decided prior to her entry into the case, again relieving plaintiff from the constraints of the reconsideration rule, Local Civ. R. 7.1(g) (requiring motions for reargument to be filed within 10 days after entry of the order at issue). All of Menoken's claims except one were eventually dismissed on summary judgment. The remaining claim was against Standard Forms for breach of the FMLA.

After a bench trial, this Court found that Standard Forms had breached the FMLA, but that its breach was in good faith. Therefore, Menoken was not awarded liquidated damages, reinstatement, or front pay, but he was awarded $27,200 in lost wages and benefits for the period between May 26, 1994 when he demanded reinstatement and May 30, 1995 when he was hired by Standard Forms.

Menoken filed an appeal with the United States Court of Appeals for the Third Circuit on July 13, 2000 and Standard Forms filed a cross-appeal on July 24, 2000. On August 30, 2001, the Third Circuit affirmed all rulings of this Court in Menoken I that Menoken appealed but reversed this Court's finding of FMLA liability against Standard Forms. See Menoken v. Standard Forms Inc., 275 F.3d 36 (3d Cir. 2001) (decision without published opinion). Thus, Plaintiff prevailed on none of his claims and the final judgment was entered after remand on November 2, 2001.

B. Menoken II

On June 10, 2002, Plaintiff Menoken filed a second action in New Jersey Superior Court, Law Division, in Bergen County, ("Menoken II"), alleging tortious interference with prospective economic advantage and fraudulent concealment of material evidence.

All defendants in Menoken II were involved in Menoken I as either defendants or defense counsel. Pemcor, Inc. was the only defendant from Menoken I who was not included as a defendant in Menoken II. Pemcor, Inc. however, had become DVBF before the events of Menoken I.

In Menoken's complaint in Menoken II, he alleged tortious interference with prospective economic advantage and fraudulent concealment of material evidence based on events that allegedly occurred during the proceeding in Menoken I. Menoken claimed that the defendants "maliciously pursued and/or permitted a pattern of misconduct designed to thwart plaintiff's efforts to get to trial." The pattern included alleged fraudulent concealment of evidence during discovery requests and opposition to a motion for his sister to appear pro hac vice. Menoken claimed that the defendants knew that it was probable that Plaintiff would be awarded damages if he proceeded to trial, so they undertook their actions in an attempt to interfere with such prospective economic advantage. He claimed that if he "had successfully tried his employment claims to a jury, he would have been entitled to lost wages, compensatory damages and punitive damages that would have exceeded $300,000."

Defendants filed a Notice of Removal with this Court on July 12, 2002, stating that this Court had subject matter jurisdiction in the form of federal question jurisdiction under 28 U.S.C. § 1331 because plaintiff's claims would require "substantial interpretation and application of federal law."

This Court requested briefing on the issue of subject matter jurisdiction, heard argument from the parties, and ruled that it had removal jurisdiction over the case because it had federal question jurisdiction under 28 U.S.C. § 1331. On October 9, 2002, despite this Court's finding of subject matter jurisdiction, plaintiff filed a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41, stating that he did "not have the financial resources to prosecute this matter through an appeal."

On January 16, 2003, Plaintiff filed a motion in the closed case, pursuant to Fed. R. Civ. P. 60(b)(4), (5) and (6), for relief from the September 26, 2002 order, arguing that an intervening decision from the U.S. Supreme Court rendered invalid the Court's assertion of jurisdiction under the removal statute. On February 26, 2003, this Court held the motion to be procedurally flawed but found, nevertheless, that this Court's earlier decision on federal subject matter jurisdiction over Plaintiff's case remained valid. Menoken v. McNamara, 213 F.R.D. 193 (D.N.J. 2003). Plaintiff filed an appeal, which the Third Circuit dismissed for lack of appellate jurisdiction. Menoken v. McNamara, 88 Fed. Appx. 550 (3d Cir. 2004) (unpublished).

More than two years later, Plaintiff moved this Court on March 7, 2005 to vacate his voluntary dismissal in Menoken II. The Court received briefing from the parties on this issue and on October ...

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