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Quigley v. Esquire Deposition Services

August 12, 2009

JOSEPH QUIGLEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
ESQUIRE DEPOSITION SERVICES, LLC, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2238-08.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 2, 2009

Before Judges Skillman, Graves and Grall.

This case is before us for the second time. As recounted in our prior opinion, Quigley v. Esquire Deposition Service[s], LLC, 400 N.J. Super. 494, 498-99 (App. Div. 2008), plaintiff was a party to litigation in the United States District Court for the District of New Jersey. During that litigation, plaintiff's adversary took his deposition in New Jersey. Plaintiff's adversary contracted with defendant Esquire Deposition Services 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. 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 in transcribing his deposition and charging him for a copy. In addition, plaintiff claimed that defendant violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, 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 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. 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.

On the first appeal, we upheld the motion judge's conclusion that the Federal Rules, which allow a non-certified stenographic reporter to transcribe a deposition taken in connection with federal litigation, pre-empt the New Jersey statute and regulations governing shorthand reporting, which require a deposition to be transcribed either by a certified court reporter or a non-certified reporter under stringent limitations set forth in the New Jersey regulations. Quigley, supra, 400 N.J. Super. at 499-505. We also held that this federal pre-emption extends to any state regulation of the price a stenographic reporter may charge for a transcript taken in connection with federal litigation. Ibid. Accordingly, we affirmed the dismissal of plaintiff's claims that were based on the New Jersey statute and regulations governing shorthand reporting. Id. at 507.

However, we concluded that three counts of plaintiff's complaint "state[d] claims that rest partly on the statute and regulations governing shorthand reporting but also may be read to state [Consumer Fraud Act] claims that can stand independently of those statutes and regulations." Ibid. In addition, we held that "the Federal Rules of Civil Procedure were [not] intended to pre-empt application of state consumer fraud statutes to fraudulent or deceptive business practices of a shorthand reporting company." Id. at 406. Based on this holding, we concluded that "to the extent plaintiff's complaint may be read to state claims under the Consumer Fraud Act that are not dependent upon the New Jersey statutes and administrative regulations governing shorthand reporting, it is not subject to federal pre-emption." Ibid. Accordingly, we reversed the dismissal of the counts of plaintiff's complaint that could be read to state such claims. Id. at 507. We also granted plaintiff leave to file an amended complaint that would restate those claims in a form that was not dependent upon the New Jersey statute and regulations governing shorthand reporting. Ibid.

Upon remand, plaintiff filed an amended complaint, as authorized by our prior opinion. Defendant again moved to dismiss for failure to state a claim. The trial court granted the motion for the reasons set forth in an oral opinion, which stated in part:

Count One in my view, . . . restates the State regulations as an industry standard and alleges that anything that doesn't comply is an unconscionable commercial practice. It's dependent then on the Statute and regulations that the Appellate Division found to be preempted[.]

Is it expressly doing that, no. Is it doing it . . . under the term unconscionable commercial practice, yes, it is. I believe if I allow this to go forward like this that the defendant is just defending against the regulations . . . the same as if the Appellate Division had not ruled the way that they [did].

Same with Count Two; basically, the copying charges, what the plaintiff is saying copying charges are too high, so they say that they're unconscionable, and they arrive at that by comparing those charge costs to other photocopying costs from other sources, but . . . the reasonableness of rates is an issue that's preempted. Basically, if I allow this again . . . through this State Court action I'm setting a level that's reasonable or at ...


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