United States District Court, D. New Jersey
HONORABLE JEROME B. SIMANDLE JUDGE
case comes before the Court on Defendants' motion for
judgment on the pleadings on Count IV of the Second Amended
Complaint [Docket Item 240] and Plaintiff's cross-motion
for sanctions. [Docket Item 242.] Count IV alleges a claim
under the New Jersey Uniform Fraudulent Transfer Act,
N.J.S.A. 25:2-27(b), which Defendants allege is untimely
under the one-year limitation of N.J.S.A. 25:2-31. For the
reasons that follow, the Court will grant Defendants'
motion and deny Plaintiff's cross-motion. The Court finds
purposes of the instant motion, it suffices to recount the
following. In this action, Plaintiff MSKP Oak Grove, LLC
(“MSKP”) asserts claims under the New Jersey
Uniform Fraudulent Transfer Act, N.J.S.A. § 25:2-20
et seq. (“NJUFTA”), arising from an
allegedly fraudulent transfer of assets through which
Defendants intended to avoid payment to certain creditors,
including Plaintiff. Plaintiff is a commercial landlord to
which Hollywood Tanning Systems, Inc. (“HTS”) is
indebted by a 2009 judgment in the amount of $411, 573.45.
Plaintiff alleges that following an asset purchase agreement
with another corporation, Tan Holdings, LLC, in 2007, HTS
fraudulently distributed $23 million to its shareholders,
Defendants Carol and Ralph A. Venuto, Sr.,  Ralph A. Venuto,
Jr., Carol Rebbecchi, and Richard P. Venuto (“the
Shareholders”) on June 22, 2007, and rendered HTS
without sufficient assets to satisfy future obligations to
creditors, including HTS's obligation to Plaintiff
relating to a defaulted lease agreement. After seven years
and voluminous motion practice, this case is scheduled for
trial on May 15, 2017.
Standard of Review.
defendant may move to dismiss a complaint before or after
filing an answer. Fed.R.Civ.P. 12(b)(6) and (c); see also
Borough of Sayreville v. Union Carbide Corp., 923
F.Supp. 671, 675 (D.N.J. 1996). A motion made before an
answer is filed is a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). A motion made after an answer is filed
is a motion for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c). See Fed.R.Civ.P. 12(h)(2)
(“Failure to state a claim upon which relief can be
granted . . . may be raised . . . by a motion under Rule
12(c).”). The differences between Rules 12(b)(6) and
12(c) are purely procedural, and the pleading standards of
Rule 12(b)(6) are applied for both. Turbe v. Gov't of
the Virgin Islands, 938 F.2d 427. 428 (3d Cir. 1991).
seek to dismiss Count IV of the Second Amended Complaint, a
claim for relief under N.J.S.A. 25:2-27(b), on the grounds
that it is untimely under the one-year period established by
N.J.S.A. 25:2-31 for such claims. Plaintiff opposes this
motion on the grounds that Defendants waived this defense by
not raising it before Judge Schneider in connection with the
motion to amend or before the deadline for dispositive
motions, and that this Court's September 5, 2014 Opinion
and Order [Docket Items 75 & 65] on Defendants' first
motion for judgment on the pleadings constitutes law of the
case barring this defense.
Whether or not Defendants should have raised this defense
earlier in the case, the NJUFTA's one-year limitation
period for 25:2-27(b) claims plainly precludes Plaintiff
litigating this claim for a transaction from 2007, even if,
as the undersigned previously found, the NJUFTA statute of
repose permits the relation back of amendments and the Second
Amended Complaint relates back to the original Complaint.
(See MSKP Oak Grove, LLC v. Venuto, Case. No.
10-6465, 2014 WL 4385979 (D.N.J. Sept. 5, 2014) [Docket Item
75] and MSKP Oak Grove, LLC v. Venuto, Case. No.
10-6465, 2016 WL 3566720 (D.N.J. June 29, 2015) [Docket Item
215].) By the plain language of the NJUFTA, a “cause of
action” under 25:2-27(b) is “extinguished”
unless it is brought “within one year after the
transfer was made or the obligation incurred.” N.J.S.A.
25:2-31(c). All parties agree, and it is otherwise
well-established, that this statute creates a statute of
repose, not an ordinary statute of limitations. “Unlike
statutes of limitations, statutes of repose are
self-executing.” Del Mastro v. Grimado, 2013
WL 4746486, at *8 (N.J. App. Div. Sept. 5, 2013) (citing
Notte v. Merchants Mut. Ins. Co., 888 A.2d 464 (N.J.
2006)). In other words, according to the New Jersey Supreme
Court, whereas a statute of limitations defense must be
timely raised as an affirmative defense or it is waived, a
statute of repose, which created substantive rights, need not
be. Rosenberg v. Town of North Bergen, 293 A.2d 662,
667 (N.J. 1972).
is undisputed that the allegedly fraudulent transfer occurred
on June 22, 2007; thus, Plaintiff's action under
25:2-27(b) would need to have been brought, or relate back to
an action brought, no later than June 22, 2008.
Plaintiff's original Complaint, filed December 13, 2010,
came too late. Any liability for harm arising from the
June 22, 2007 transaction that could have been remedied by
N.J.S.A. 25:2-27(b) was extinguished by the NJUFTA's
statute of repose on June 22, 2008, whether or not Defendants
raised that defense in a pleading or dismissal motion.
Defendants' motion for judgment on the pleadings will be
granted, and Plaintiff will not be permitted to pursue at
trial its cause of action under N.J.S.A.
accompanying Order will be entered.
 Because Ralph A. Venuto, Sr. died
prior to the initiation of this action, Plaintiff names his
estate as a defendant, represented by Defendant Carol ...