On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. DC-905-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Koblitz.
Plaintiff Robert J. Triffin appeals from two orders issued after our prior remand. He appeals a November 12, 2008 order granting the application of defendant Wal-Mart Stores, Inc. (Wal-Mart) to file an amended answer to Triffin's amended complaint and to respond to Triffin's request for admissions out of time. He also appeals a March 13, 2009 order granting WalMart's motion for summary judgment and dismissing Triffin's complaint with prejudice. Triffin maintains that the motion judge erroneously considered a Wal-Mart employee's certification, as it was not based on first-hand knowledge. Triffin further asserts the motion judge abused his discretion by allowing defendant to belatedly amend its answer and respond to requests for admission. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Triffin is in the business of purchasing dishonored negotiable instruments and then suing pro se on either the notes or a variety of contractual or statutory theories. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 241 (App. Div. 2007). He has obtained notoriety for filing over 15,000 lawsuits as an assignee of dishonored checks. Triffin v. Am. Intern. Grp., Inc., 372 N.J. Super. 517, 521 n.2 (App. Div. 2004).
This matter stems from Triffin's purchase of nine dishonored checks purportedly issued by Wal-Mart. On November 15, 2006, he filed a ten count complaint against Wal-Mart and several individual defendants whose names appear on the checks as payees, seeking to recover payment on the checks plus prejudgment interest. Copies of the dishonored checks were not attached to the complaint, and Triffin did not furnish the checks when asked to do so by Wal-Mart. In the first nine counts, Triffin alleges that he is a holder in due course and that Wal-Mart is liable to him pursuant to two provisions of the Uniform Commercial Code, N.J.S.A. 12A:3-414 and N.J.S.A. 12A:4-403. In the tenth count, Triffin alleges Wal-Mart's liability under either one of two other provisions of the Code, N.J.S.A. 12A:3-405, which holds an employer responsible for fraudulent endorsement by an employee, or N.J.S.A. 12A:3-406, which holds an employer liable for a failure to safeguard the instrument, thereby substantially contributing to its fraudulent endorsement.
On April 12, 2007, the motion judge granted Triffin's motion for leave to amend his complaint to include JP Morgan Chase Bank, N.A., (Chase) as an additional defendant. Also on April 12, 2007, Triffin served on Wal-Mart's counsel of record a Request for Admissions.
On April 19, 2007, Triffin filed his amended complaint, which added Chase as an additional defendant and asserted an equitable claim of unjust enrichment or, alternatively, wrongful conversion. After conducting an investigation, Chase notified Triffin by letter dated May 23, 2007, that eight of the checks were counterfeit and the ninth "item's payment amount had been altered." On June 18, 2007, Triffin voluntarily dismissed his claim against Chase with prejudice.
By order dated September 4, 2007, the judge entered summary judgment in Wal-Mart's favor and denied Triffin's motion for reconsideration on September 25, 2007. In October 2007, Triffin appealed the September 2007 orders, asserting in his notice of appeal that no issues were pending against any party.
On January 16, 2008, Triffin voluntarily dismissed his claims against Wal-Mart's remaining co-defendants with prejudice. We remanded the matter for a determination on whether the checks in question were clearly counterfeit.*fn1 Robert J. Triffin v. Wal-Mart Stores, Inc., A-0831-07T3, (App. Div. July 3, 2008).
On or about August 28, 2008, Wal-Mart filed a renewed motion for summary judgment with the motion judge. In support of its motion, Wal-Mart attached the certifications of Megan Easley, an employee of Wal-Mart, and Nicole L. Bricker, a Chase employee. The certifications of both Easley and Bricker explain the mechanics of Chase's Positive Pay system, which is used to verify the validity of checks issued by participating companies.*fn2
On or about September 15, 2008, Triffin filed an opposition to Wal-Mart's motion, in which he requested oral argument. On September 24, 2008, Wal-Mart filed a motion for leave to file an amended answer to Triffin's amended complaint and for leave to respond to Triffin's request for admissions. By order dated November 12, 2008, after oral argument, the judge granted these requests. On November 24, 2008, the judge granted Triffin one hundred days to conduct discovery based on Triffin's representation that these rulings "completely chang[ed] the scope of the defense."
On March 13, 2009, without any discovery requests from Triffin and with no further submissions from either party, the motion judge granted Wal-Mart's renewed motion for summary judgment and dismissed Triffin's ...