January 2, 2009
CAMO TECHNOLOGIES, INC., PLAINTIFF-APPELLANT,
SAMIR PATHAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5596-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 9, 2008
Before Judges Skillman, Graves and Grall.
Plaintiff appeals from an order entered January 4, 2008, which granted defendant's motion to dismiss its complaint, and an order entered February 1, 2008, which denied plaintiff's motion for reconsideration.
Plaintiff is a New Jersey corporation that recruits and places computer consultants with its clients to work on projects on a temporary basis. These consultants are generally recruited from outside the United States.
Plaintiff recruited defendant, a computer software consultant, in this manner, and in May 2006, plaintiff entered into an employment agreement with defendant that required him to maintain employment with plaintiff for a term of eighteen months. Almost immediately after being placed by plaintiff with a company in Boston, Massachusetts, defendant left the job, in violation of the terms of the employment agreement.
Plaintiff was not registered as a temporary help service firm with the Attorney General, as required by N.J.S.A. 56:8-1.1, either when defendant entered into the employment agreement or when he left his job.
Plaintiff brought this action against defendant, asserting claims for not only breach of the employment agreement but also breach of the duty of good faith and fair dealing, unjust enrichment, misrepresentation, fraud, and tortious interference with plaintiff's contractual relations with its clients. All of plaintiff's claims were based on defendant's termination of his employment before the end of the eighteen-month period provided under the employment agreement.
The trial court granted defendant's motion for summary judgment on the ground that plaintiff's failure either to be licensed under the Private Employment Agency Act, N.J.S.A. 34:8-43 to -79, or to be registered with the Attorney General as a "temporary help service firm" under N.J.S.A. 56:8-1.1, barred plaintiff from maintaining any claim against defendant based on the employment agreement entered into in violation of these statutes.*fn1 The court rejected plaintiff's argument that even if it was barred from maintaining a claim for breach of contract, it could pursue its other claims against defendant, such as its claim for tortious interference with the contractual relations with its clients. The court also rejected plaintiff's arguments that its failure to register with the Attorney General did not bar the claims against defendant because he was placed with a client outside of New Jersey and that its registration after defendant terminated his employment authorized plaintiff to maintain this action because defendant's conduct constituted a "continuing wrong" that was still ongoing when plaintiff became registered.
On appeal, plaintiff presents the following arguments:
Point I: TRIAL COURT ERRED BY DISMISSING COMPLAINT IN ENTIRETY WHERE PLAINTIFF'S COMPLAINT INCLUDED A CLAIM FOR FRAUD AND DAMAGES FOR INJURY CAUSED TO ITS BUSINESS REPUTATION WHICH IS NOT AN ACTION TO COLLECT A "FEE, CHARGE OR COMMISSION" AND THEREFORE IS NOT PROHIBITED BY THE EMPLOYMENT ACT.
Point II: TRIAL COURT ERRED IN FINDING THAT THE NEW JERSEY EMPLOYMENT ACT WAS APPLICABLE AS THE PLAINTIFF DID NOT OFFER, PROMISE OR ATTEMPT TO PROCURE EMPLOYMENT PERSONNEL SERVICES OR PRODUCTS INSIDE THE STATE OF NEW JERSEY.
Point III: PLAINTIFF'S CLAIMS WERE NOT PRECLUDED WHERE THE DEFENDANT'S BREACH AND TORTIOUS CONDUCT ARE ONGOING AND CAUSES OF ACTION ARISE WITH EACH CONTINUED BREACH.
Point IV: TRIAL COURT'S RULING WAS ERRONEOUS BECAUSE PLAINTIFF IS NOW A REGISTERED TEMPORARY HELP SERVICE FIRM AND IS THEREBY IN FULL COMPLIANCE WITH THE EMPLOYMENT ACT AND IS THUS ABLE TO MAINTAIN THE WITHIN CAUSE OF ACTION PER N.J.S.A. 34:8-45.
Point V: TRIAL COURT RULING FOR SUMMARY JUDGMENT WAS PREMATURE WHERE DISCOVERY WAS NOT YET COMPLETE.
We reject these arguments and affirm the dismissal of plaintiff's complaint substantially for the reasons set forth in Judge Mecca's January 4, 2008 and February 1, 2008 oral opinions. We are satisfied that this case is fully controlled by the principles set forth in Data Informatics, Inc. v. Amerisource Partners, 338 N.J. 61, 78-80 (App. Div. 2001), even though the employer involved in that case was required to be licensed under the Private Employment Agency Act, while plaintiff was required to be registered under N.J.S.A. 56:8-1.1.