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Goldman v. Critter Control of New Jersey

Superior Court of New Jersey, Appellate Division

May 7, 2018

STUART GOLDMAN, Plaintiff-Appellant,
v.
CRITTER CONTROL OF NEW JERSEY, KEWIN, INC., d/b/a CRITTER CONTROL OF NEW JERSEY, ROBERT MCDONOUGH and EVAN WINDHOLZ, Defendants-Respondents. STUART GOLDMAN, Plaintiff-Appellant,
v.
MADISON CARLSTROM, MATTHEW HILL and SIMPLICITY FARMS, Defendants-Respondents.

          Argued April 11, 2018

          On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-1852-16 and L-1173-16.

          Albert J. Rescinio argued the cause for appellant (Law Offices of Albert J. Rescinio, LLC, attorneys; Jeff Thakker, of counsel and on the brief; Albert J. Rescinio, on the brief).

          Harry J. Levin argued the cause for respondents Critter Control of New Jersey, Kerwin, Inc. d/b/a Critter Control of New Jersey, Robert McDonough and Evan Windholz (Levin Cyphers, attorneys; Harry J. Levin, on the brief).

          Respondents Madison Carlstrom, Matthew Hill and Simplicity Farms, have not filed a brief.

          Before Judges Fuentes, Manahan, and Suter.

          OPINION

          SUTER, J.A.D.

         We consolidate these two appeals for the purpose of this opinion. In Goldman v. Critter Control of New Jersey, A-1392-16 (Critter Control), plaintiff Stuart Goldman appeals from the September 6, 2016 order that dismissed with prejudice the complaint he filed against defendants Critter Control of New Jersey, Kewin, Inc. d/b/a Critter Control of New Jersey, Robert McDonough and Evan Windholz (Critter Control defendants). In this complaint, plaintiff sought civil penalties under the Prevention of Cruelty to Animals Act (PCAA), N.J.S.A. 4:22-11.1 to -60. Plaintiff also appeals from the November 4, 2016 order that denied reconsideration and his motion to amend the complaint.

         In Goldman v. Carlstrom, Hill, and Simplicity Farms, A-3906-16 (Simplicity Farms), plaintiff appeals from the April 19, 2017 order that dismissed his complaint with prejudice against defendants Madison Carlstrom, Matthew Hill and Simplicity Farms (Simplicity Farm defendants) and denied his motion to file a second amended complaint. We consolidate these appeals because plaintiff sought statutory penalties under N.J.S.A. 4:22-26 in both complaints based on allegations of animal cruelty against defendants and both complaints were dismissed for lack of standing. The factual allegations are based on plaintiff's complaints. We affirm the orders for reasons that follow.

         I

         Plaintiff is the former chief humane law enforcement officer for the Monmouth County Society for the Prevention of Cruelty to Animals (Monmouth SPCA). He also is a trustee for two non-profit animal welfare organizations.

         In Critter Control, plaintiff alleged that in May 2015, he learned from a resident of Matawan that Critter Control defendants trapped a female adult raccoon and removed it from the roof of a house. Although Critter Control defendants claimed the raccoon was not lactating, a few days later baby raccoons were discovered in the gutters of the same house. Plaintiff alleged the baby raccoons had gone without sustenance for a week.

         Plaintiff filed a complaint "by way of . . . qui tarn" against Critter Control defendants, seeking "damages and civil penalties" for violations of N.J.S.A. 4:22-26 for "animal cruelty, animal abuse, negligence, recklessness, [and] negligent infliction of emotional distress." He alleged that Critter Control defendants violated N.J.S.A. 4:22-26(a)(4) by failing, "as the owner or a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care, or otherwise cause or procure such an act to be done."

         A person who violates that statute "[s]hall forfeit and pay a sum" according to a schedule set forth in the statute,

to be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals or a county society for the prevention of cruelty to animals, as appropriate, or, in the name of the municipality if brought by a certified animal control officer or animal cruelty investigator.
[N.J.S.A. 4:22-26 (emphasis added).]

         Penalties for a violation of N.J.S.A. 4:22-26(a)(4) range from $500 to $2000. Plaintiff's complaint demanded compensatory and consequential damages, statutory civil penalties, punitive damages and attorney's fees.

         Critter Control defendants filed a motion to dismiss the complaint, asserting that plaintiff lacked standing. On September 6, 2016, the trial court granted their motion and dismissed the complaint with prejudice. The statute was "plain and unambiguous, " according to the trial court's rider to its order, providing that "only select organizations, not individuals, may pursue a civil remedy under the statute." Because plaintiff brought the complaint "in his individual name, not in the name of the [New Jersey] SPCA, a county society for the prevention of animals, or Monmouth County, " plaintiff lacked standing to proceed with the lawsuit.

         Plaintiff's reconsideration motion, captioned as "Stuart Goldman in the name of the Monmouth [SPCA], " also asked to amend the complaint to show that he was filing it in the name of the Monmouth SPCA. He certified that the Monmouth ...


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