On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10232-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
This appeal questions whether an Illinois temporary help service firm will be denied access - as a plaintiff - to New Jersey's courts for enforcement capacity of an indebtedness if it has not registered pursuant to the Private Employment Agency Act (Act), N.J.S.A. 34:8-43 to -66.*fn1 Our answer to the question is yes. Hence, we reverse.
The Law Division granted partial summary judgment to plaintiff by striking defendant's affirmative defense that plaintiff's unregistered status deprived it of the right to "bring or maintain an action in any court of this State for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act." N.J.S.A. 34:8-45(b). At the same time, the court also denied defendant's cross-motion for summary judgment that sought to dismiss the complaint by actualizing the affirmative defense. In a subsequent motion, plaintiff sought summary judgment on the actual indebtedness, which defendant did not oppose; the court granted the motion and entered judgment. Finally, as part of a reconsideration motion by plaintiff, contractual attorneys fees were added in favor of plaintiff as the prevailing party. Defendant appealed all of these determinations.
Plaintiff Talented IT, Inc. (Talented) is a Delaware corporation with its principal place of business in Naperville, Illinois. It is a professional staffing firm, providing workforce solutions for high tech companies requiring personnel with esoteric or cutting edge skills in the information technology industry. For purposes of this litigation, Talented conceded that it is a temporary help service firm as defined by the Act. N.J.S.A. 34:8-43.
Defendant Data Group, Inc. (Data), is a New Jersey corporation with its principal place of business in Iselin. It too is engaged in the business of furnishing qualified computer/data processing professionals to other businesses for the purpose of performing computer consulting and programming services. Accordingly, Data recognizes that it also is a temporary help service firm as defined by the Act.
On September 12, 2006, Talented and Data executed a Subcontractor Agreement, nominally titled a "Non-Disclosure Agreement" (Agreement). The Agreement provided that Talented, as an independent subcontractor, would assist Data in performing services required by separate contracts between Data and its clients. Talented promised that it would provide specially skilled and trained individuals to perform services directly on Data's behalf for Data's clientele. The Agreement plainly noted that it was governed by the laws of the State of New Jersey.
The Agreement did not specifically identify or make provisions for any particular project or client. Instead, the Agreement would be implemented by future purchase orders that would be executed on an as-needed basis. At the time the Agreement was negotiated and signed, the identity of Data's clients, the identities of the employees supplied by Talented to perform the required services, and the locations where Talented's employees would be deployed were all unknown.
On October 30, 2006, the parties signed a purchase order that resulted in Talented providing one of its employees, Sujimol Chirayil, a resident of Illinois, to fill a projected six-month position in Tennessee on behalf of Data's client, the State of Tennessee Department of Labor and Work Force Development. Data agreed to pay Talented forty dollars per hour for Chirayil's services. Ultimately, Data was paid for the services it supplied to its Tennessee client.
About six months later, on April 25, 2007, the parties signed another purchase order that resulted in Talented supplying one of its employees, Pranev Patel, a resident of Illinois, to fill a projected three to six-month position on behalf of Data's client Latrobe Specialty Steel located in Pennsylvania. Data agreed to pay Talented sixty-seven dollars per hour for Patel's services. In due course, Data was paid for the services it supplied to Latrobe Specialty Steel.
Data claims that before Talented's employees began working on behalf of its clients, they signed agreements not to compete with Data. That is, the individuals agreed not to become employed by or consult with, either directly or indirectly, any customers or clients of Data during the term of their respective projects and for a period of one year after termination. We have not been provided with copies of those agreements with Chirayil and Patel. Apparently, those agreements were ...