September 29, 2009
MICHAEL AZEEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SIDNEY AZEEZ, PLAINTIFFS-APPELLANTS,
BRYAN CAVE, LLP, DEFENDANT-RESPONDENT, AND ERNST & YOUNG, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-680-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2009
Before Judges Axelrad and Fisher.
In this appeal, we consider whether the trial judge abused his discretion by denying a motion for reconsideration of a dismissal based on the doctrine of forum non conveniens. Because, among other things, the newer legal authorities upon which plaintiff relied had no material impact on the judge's earlier decision, we affirm the judge's exercise of discretion in denying reconsideration.
Plaintiff, on his own behalf and as the personal representative of the estate of his late father, filed a complaint, on March 5, 2004, against defendant Bryan Cave, LLP, and Ernst & Young.*fn1 He alleged that Bryan Cave is a law firm organized as a Missouri limited partnership with its principal place of business in St. Louis, Missouri, with clients in New Jersey, and that Ernst & Young is an international accounting firm, which maintains an office in New Jersey.
In his complaint, plaintiff asserted that he and his late father had invested considerable sums of money with Reed Slatkin, a California resident, in what is alleged to have been an illegal Ponzi scheme. At some point in 1999, the Securities and Exchange Commission (SEC) began investigating Slatkin. In 2001, Slatkin filed a bankruptcy petition in the United States Bankruptcy Court for the Central District of California, and the SEC thereafter filed a civil action against Slatkin in the United States District Court for the Central District of California.
Plaintiff alleged that lawyers in Bryan Cave's California office engaged in a strategy that, in effect, was designed to delay the SEC's investigation, which allowed Slatkin to continue to bilk his clients. As summarized in his appeal brief, plaintiff alleged:
In furtherance of this strategy, Bryan Cave assured the SEC that it would assume responsibility for verifying that the investors' funds were safely deposited in Switzerland and retained Ernst & Young to perform audits on those accounts. Bryan Cave's strategy worked well and held the SEC "at bay" for well over a year, during which time Reed Slatkin was able to continue to bilk investors, including [p]laintiff, out of millions of dollars. It was later learned that Bryan Cave misrepresented to the SEC that investors' money was deposited in Swiss accounts and represented that these accounts were being verified by them and liquidated pursuant to the SEC's request when, in fact, Bryan Cave had no actual knowledge that the accounts even existed. Bryan Cave ignored obvious inconsistencies during its representation of Reed Slatkin and continued to assure the SEC that the process of liquidating investors' accounts in a non-existent Swiss company was in full swing without ever having attempted to verify the existence of this Swiss company and a single account. Although Bryan Cave was informed by Ernst & Young on many occasions that it was not verifying any accounts because it did not have the information to do so, Bryan Cave continued to assure the SEC that the audit on these non-existent accounts was proceeding without issue. After 18 months of representation by Bryan Cave and successfully holding the SEC "at bay" it was learned that the $400 Million alleged to be in Swiss bank accounts did not exist.
As a result of Bryan Cave's actions, [p]laintiff continued to invest money during the 18 months of Bryan Cave's representation that kept the SEC "at bay" and prevented the SEC from taking direct action during that time. By the time the SEC learned that there was no money in any Swiss accounts, Reed Slatkin had been able to swindle millions of additional dollars from investors, including more than $16 Million from [p]laintiffs.
Bryan Cave moved for dismissal based on the doctrine of forum non conveniens. On August 4, 2006, that motion was denied without prejudice in order to permit discovery relating to the propriety of continuing the action in New Jersey rather than California. After considerable discovery, Bryan Cave again moved for dismissal based on the doctrine of forum non conveniens.
By way of an order entered on April 11, 2008, Judge Nelson C. Johnson granted Bryan Cave's motion to dismiss for the reasons set forth in a written opinion. Plaintiff filed a motion for reconsideration on May 15, 2008, which Judge Johnson denied by way of an order entered on June 25, 2008, for the reasons set forth in another written opinion.
Plaintiff filed a notice of appeal on August 5, 2008, seeking to appeal the orders entered on April 11 and June 25, 2008. Cross-motions led to our determination that the appeal of the April 11, 2008 order was untimely. For that reason, we dismissed that aspect of the appeal, limiting plaintiff's appeal to his contention that the trial judge erred when he entered the order of June 25, 2008, which denied his motion for reconsideration.
In Fusco v. Bd. of Educ., City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002), we held that the power to reconsider an earlier order rests within the trial judge's discretion, which should be limited to only two "very narrow circumstances." We defined those circumstances in the following way:
Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. [Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
We do not intervene when a trial judge refuses to reconsider an earlier order absent a showing of an abuse of discretion. After carefully reviewing the record on appeal, we conclude that plaintiff's arguments are insufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
In considering the judge's underlying decision to dismiss the action -- to the extent necessary in light of the limits of this appeal -- we must ultimately recognize that trial courts are broadly empowered to invoke the doctrine of forum non conveniens to dismiss an action "whenever the ends of justice indicate a trial in the forum selected by the plaintiff would be inappropriate." Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 164-65 (2000) (quoting D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 259 (App. Div. 1988), aff'd, 115 N.J. 491 (1989)). Describing the doctrine of forum non conveniens as "equitable in nature," the Kurzke Court emphasized that "decisions concerning its application ordinarily are left to the sound discretion of the trial court." Id. at 165. Accordingly, "[a]n appellate court should not substitute its judgment for that of the trial judge unless there is a showing of clear abuse of that discretion." Ibid. (quoting Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974)). We are, thus, asked to consider whether the judge abused his discretion in refusing to grant reconsideration of his earlier discretionary ruling.
Plaintiff contends, among other things, that Judge Johnson expressed far too much concern for the fact that a determination of Bryan Cave's liability would, in essence, put a New Jersey factfinder in the undesirable and unwarranted position of determining whether Bryan Cave conformed to California attorney disciplinary rules. To be sure, this particular aspect of the judge's holding was novel. Regardless, we find no error in the judge's consideration of this factor, as it fell within the applicable factors outlined in Kurzke, supra, 164 N.J. at 165-66, and because we have no cause to second guess the weight Judge Johnson gave that circumstance in his analysis of all the other relevant factors.
In addition, we find no abuse of discretion in the judge's refusal to vacate the prior order in light of legal authorities arising both shortly before and after the judge's April 11, 2008 decision to dismiss the action -- Greely v. Greely, 194 N.J. 168 (2008), and Varo v. Owens-Illinois, Inc., 400 N.J. Super. 508 (App. Div. 2008).*fn2 In Greely, the Court considered the unique circumstance of a plaintiff, who: commenced a matrimonial action in New Jersey; engaged in considerable litigation over the matrimonial issues in New Jersey; then moved to and filed the same action in Nebraska; and thereafter sought dismissal of the New Jersey action on forum non conveniens grounds. 194 N.J. at 171-73. The Court found that plaintiff engaged in "crass forum shopping." Id. at 177. In Varo, plaintiffs were Spanish nationals who brought a products liability suit in New Jersey based upon a contention that defendant manufactured and sold the offending products in New Jersey. 400 N.J. Super. at 515. We concluded in Varo that the movant failed to demonstrate that Spain represented an available adequate alternative forum and, also, that the movant failed to show that New Jersey was an inappropriate forum. Id. at 528. In both cases, the same factors outlined in Kurzke were applied to circumstances significantly different from those considered by Judge Johnson in this case. In short, these authorities did not alter the fundamental principles of the doctrine of forum non conveniens nor did they impose a new rule of law such that it could, in their wake, be colorably argued the judge's initial decision was palpably incorrect or irrational. On this point, the judge acted well within his discretion in refusing to reconsider his earlier decision.
And we lastly mention that it was quite appropriate for the judge to dismiss this matter considering that the only link between this suit and New Jersey -- plaintiff's maintenance of a residence here -- was entitled to less weight than plaintiff has asserted because plaintiff, during the course of these proceedings, ceased to be a full-time resident of New Jersey. That fact more than amply demonstrated that a denial of Bryan Cave's motion would likely impose undue burdens on our congested courts, on our citizens who may be called upon to act as jurors, and on our taxpayers. The interests of justice amply supported the judge's conclusion that our courts should have no further involvement in this action since the dispute now has little if any nexus to this State.
In short, we are satisfied, substantially for the reasons set forth in Judge Johnson's two thorough and well-reasoned decisions, that correct legal principles were applied to the facts. As a result, we find the judge did not abuse his discretion when he refused to reconsider an order that was based on his exercise of equitable discretion.