On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-17-06.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and LeWinn.
The primary issue presented by this appeal is whether, as applied to a deposition taken in connection with federal litigation, the Federal Rules of Civil Procedure pre-empt the New Jersey statute and administrative regulations governing shorthand reporting. We conclude that the Federal Rules preempt the statute and regulations, and therefore a deposition taken in connection with federal litigation may be transcribed by a reporter who is not certified by the New Jersey State Board of Court Reporting. However, we also conclude that the Federal Rules do not pre-empt a claim against a shorthand reporting company under the Consumer Fraud Act that is not dependent upon the statute and administrative regulations governing shorthand reporting.
Plaintiff Joseph Quigley was a party to litigation in the United States District Court for the District of New Jersey. During the course of that litigation, plaintiff's adversary took his deposition in New Jersey. Plaintiff's adversary contracted with defendant Esquire Deposition Service to transcribe the deposition. Since the Federal Rules of Civil Procedure do not require a reporter who transcribes a deposition to furnish a copy to the other parties, plaintiff through his attorney ordered a transcript of his two-day deposition from defendant, which charged him a total of $1,251.55. Plaintiff paid this amount and received the transcript. Subsequently, the federal litigation to which plaintiff had been a party was settled.
Plaintiff brought this action claiming that defendant violated the New Jersey statute and administrative regulations governing shorthand reporting and the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, in transcribing his deposition and charging him for a copy. Plaintiff claimed that defendant's use of a non-certified shorthand reporter to transcribe his deposition violated the statute and administrative regulations requiring use of a certified shorthand reporter to transcribe a deposition. Plaintiff also claimed that defendant violated the administrative regulation governing the number of lines per transcript page, the number of letters per line and the format of questions and answers. In addition to these alleged violations of the state statute and administrative regulations governing shorthand reporting, plaintiff claimed that defendant violated the Consumer Fraud Act by unconscionable and fraudulent practices in billing him for a copy of his deposition. Plaintiff sought class certification of the complaint.
Defendant moved to dismiss plaintiff's complaint for failure to state a claim. The motion judge concluded in a written opinion that the statute and administrative regulations requiring a deposition to be transcribed by a certified shorthand reporter and the regulations prescribing formatting standards for deposition transcripts do not apply to depositions taken in connection with federal litigation because they are pre-empted by the Federal Rules of Civil Procedure. Consequently, the judge dismissed plaintiff's claims predicated on the statute and regulations. In addition, the motion judge, apparently conceiving that plaintiff's Consumer Fraud Act claims were entirely dependent upon the applicability of the statute and regulations governing shorthand reporting, also dismissed those claims. Accordingly, the judge entered judgment dismissing plaintiff's complaint.
Plaintiff appeals from the dismissal. We granted motions by the State Board of Court Reporting and the Certified Shorthand Reporters Association of New Jersey to participate as amicus curiae in the appeal.
We agree with the motion judge's conclusion that, as applied to depositions taken in connection with federal litigation, the statute and regulations governing shorthand reporting are pre-empted by the Federal Rules of Civil Procedure. However, the judge erred in concluding that plaintiff's Consumer Fraud Act claims are entirely dependent upon the statute and regulations. Therefore, we affirm the dismissal of plaintiff's claims based on the statute and regulations governing shorthand reporting but reverse the dismissal of plaintiff's Consumer Fraud Act claims that are not dependent on the statute and regulations.
Pre-emption under the Supremacy Clause of the United States Constitution occurs  when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law,  when there is outright or actual conflict between federal and state law,  where compliance with both federal and state law is in effect physically impossible,  where there is implicit in federal law a barrier to state regulation,  where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or  where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. [Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed. 2d 369, 381-82 (1986) (citations omitted).]
Pre-emption may result not only from Congress's enactment of a statute but also from the Supreme Court's adoption of rules governing practice and procedure in the federal courts. See Baylson v. Disciplinary Bd. of the Supreme Court of Pa., 975 F.2d 102, 107, 111-12 (3d Cir. 1992), cert. denied, 507 U.S. 984, 113 S.Ct. 1578, 123 L.Ed. 2d 147 (1993); see also Sibbach v. Wilson & Co., 312 U.S. 1, 9-16, 61 S.Ct. 422, 424-27, 85 L.Ed. 479, 483-86 ...