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Vsg Acquisition Corp., D/B/A Zolon Corp v. Sm & Sp

July 9, 2012

VSG ACQUISITION CORP., D/B/A ZOLON CORP., PLAINTIFF-APPELLANT,
v.
SM & SP, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2651-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2012

Before Judges Sapp-Peterson and Ostrer.

Plaintiff VSG Acquisition Corp. (VSG), a temporary help service firm, N.J.S.A. 34:8-43, sued defendant SM & SP, Inc. (SMSP), also a temporary help service firm, for services rendered by VSG's employee. VSG appeals from Judge Heidi Currier's order granting SMSP's motion for summary judgment, dismissing VSG's complaint. Judge Currier held that because VSG was then unregistered, it was barred from maintaining its collection action, N.J.S.A. 34:8-45b, and not entitled to equitable relief in lieu of a contractual remedy. We affirm.

I.

The facts are undisputed. VSG and SMSP are in the business of providing computer training, analysis, and management consulting to clients. VSG was formed in 2010 to acquire Vision Systems Group. Although VSG applied in March 2010 to register with the New Jersey Division of Consumer Affairs as a consulting and temporary help services firm, VSG did not timely respond to the agency's request for additional information. As a result, VSG was not registered until May 2011, after completing the services that are at issue.

In May 2010, VSG and SMSP entered into an agreement for one of VSG's employees to be placed temporarily with one of SMSP's end clients. The agreement stated that VSG would provide SMSP with the services of qualified consultants, employed by VSG. VSG agreed not to compete with SMSP or solicit its customers, and agreed that it would obtain a signed non-compete, non-solicitation agreement from its employee. SMSP agreed to pay VSG an hourly rate for the consultant's services as provided in an attached purchase order, with payment due within thirty days of invoicing. According to the purchase order, VSG provided Subhash Chand, a software architect, at the rate of $70 an hour, starting March 15, 2010.

The project ended October 15, 2010 and VSG sent an invoice to SMSP for a total of $76,160 for Chand's services. After SMSP refused to pay, VSG filed it complaint for collection in April 2011; SMSP filed its answer in May; and then, before the production of discovery (although mutual requests were served), SMSP moved for summary judgment on June 14, 2011 on the basis that VSG was not registered as a temporary help services firm.

After oral argument on August 5, 2011, Judge Currier issued an oral opinion granting the motion. Judge Currier first considered VSG's argument that it was exempt from the registration requirement under N.J.S.A. 34:8-46h, which provides that the act shall not apply to:

h. Any temporary help service firm which does not:

(1) Charge a fee or liquidated charge to any individual employed by the firm or in connection with employment by the firm;

(2) Prevent or inhibit, by contract, any of the individuals it employs from becoming employed by any other person;

(3) Knowingly send individuals it employs . . . for the purpose of replacing individuals who are striking or who are locked ...


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