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Nikituk v. Lieze

December 22, 2009


The opinion of the court was delivered by: Simandle, District Judge




This matter is before the Court on motions for summary judgment by Defendants South Jersey Check Cashing, LLC (SJCC), Eugene McNelis, Michelle McNelis Lieze [Docket Item 31]; Anthony P. Lieze Trash Removal (ALTR) and Anthony P. Lieze [Docket Item 32]; and Timothy Lieze [Docket Item 33]. The principal issues to be decided are the preclusive effects of a state court summary judgment opinion related to this matter and the extent to which Plaintiffs have adduced support for their federal RICO claim. For the reasons described below, the Court will grant summary judgment for all Defendants on the federal RICO claims, deny Plaintiffs' request for a continuance to allow further discovery, and decline to exercise jurisdiction over the remaining state law claims.


This case involves a business relationship gone bad. Timothy Lieze's father, Anthony P. Lieze, owns a trash removal firm (ALTR), for which Timothy Lieze worked as a truck driver. During his employment with ALTR, Timothy Lieze discovered an opportunity to haul metal waste from Camden County Energy Recovery Corporation (CCERC), a firm with which ALTR had a long- running relationship. According to Timothy Lieze, his neighbor, Plaintiff John Nikituk, agreed to buy the appropriate truck and go into a metal hauling business together under the name East Coast Waste Services (ECWS). According to Nikituk, Timothy Lieze simply offered the opportunity to Nikituk without the expectation of an interest in ECWS. Nikituk invested significant resources in ECWS with the expectation of being employed as the exclusive remover of metal waste from CCERC.

ECWS hauled metal waste from CCERC for over a year. At some point, ALTR also began hauling metal waste from CCERC, an action that Plaintiffs allege violated their exclusive right to haul the waste. In 2005, Timothy Lieze discovered that John Nikituk did not consider him a partner in ECWS, and upon Timothy Lieze's urging, CCERC gave the hauling rights to ALTR. In this action, Plaintiffs allege that Timothy Lieze first induced Nikituk to invest resources in ECWS by telling Nikituk that he would be the exclusive hauler of metal waste from CCERC, and then Timothy and Anthony Lieze through ALTR usurped the role of ECWS in removing metal waste from CCERC.*fn1

Plaintiffs' arguments were initially brought as counterclaims in a state court action initiated by Timothy Lieze, Lieze v. East Coast Waste, Docket No. GLO-L-1590-05 (N.J. Sup. Ct. L. Div. 2008). In that action, Timothy Lieze contended that he was a fifty-fifty partner with Nikituk in ECWS, and demanded an accounting and damages in contract and quantum meruit.*fn2 The state court defendants countered that Timothy Lieze was not, and indeed legally could not be partner because of his criminal history, and brought the state law claims reiterated in the present case.

At some point during discovery in the state court case, Nikituk learned that checks belonging to ECWS had been cashed, allegedly without his authorization. The checks were cashed at SJCC, a business operated by Eugene McNelis, the father of Michele McNelis Lieze, who is the wife of Timothy Lieze and is also employed at SJCC. The state court defendants attempted to amend their counterclaims to include SJJC, McNelis, and Michele McNelis Lieze and to add a federal RICO count to the state RICO claim against the defendants already joined in the state court action. This amendment was denied by the state court because the state court defendants failed to show the basis for the new claim and because it was too late in the litigation. (Def. Timothy Lieze Br. Supp. Summ. J., Ex-C.)

Three weeks later, on August 13, 2007, Plaintiffs filed the present action, with a complaint that is nearly identical to the proposed amended complaint that had been rejected in the Superior Court action.

All of the claims in the state court action except the claim for conversion were decided on summary judgment in April 2008. In a letter opinion of April 30, 2008, the Superior Court, by the Honorable Anne McDonnell, found that Timothy Lieze did not have a partnership interest in ECWS. (Def. Timothy Lieze Br. Supp. Summ. J., Ex-G.) Judge McDonnell also found that the Nikituk's RICO and tortious interference claims were without merit, in part because "[t]here was no metal contract and there was no exclusivity." (Id.) The only remaining claim, Nikituk's allegation that Timothy Lieze unlawfully converted ECWS' funds by cashing checks and keeping the proceeds, is proceeding to trial in state court and has not yet been adjudicated.

In their summary judgment motions in this action, the defendants in the state court action (Anthony P. Lieze, ALTR, and Timothy Lieze) move for summary judgment on the merits, arguing that Plaintiffs have not adduced evidence to support the RICO claims, and assert claim and/or issue preclusion. The new defendants (SJCC, Eugene McNelis, and Michelle McNelis Lieze), argue that Plaintiffs have not provided facts sufficient to support their RICO, negligence, and conversion claims against these Defendants.


A. Subject Matter ...

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