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Demetro v. National Association of Bunco Investigations

United States District Court, D. New Jersey

June 25, 2019

CLARK DEMETRO, Union County, New Jersey, and CLARK & SONS CONSTRUCTION, LLC, Union County, New Jersey, Plaintiffs,
NATIONAL ASSOCIATION OF BUNCO INVESTIGATIONS, Baltimore County, Maryland, and ROBERT POCHEK, individual capacity, Middlesex County, New Jersey, and TOWNSHIP OF WOODBRIDGE, NEW JERSEY, and JOHN DOE, Defendants.


          HON. KEVIN MCNULTY, U.S.D.J.

         The plaintiffs, Clark Demetro ("Demetro") and Clark & Sons Construction, LLC ("Clark & Sons") brought this action against Defendants National Association of Bunco Investigators ("NABI"), [1] Robert Pochek ("Pochek"), and the Township of Woodbridge, NJ, ("Woodbridge") based on allegedly defamatory statements and violations of Demetro's rights under the constitutions and laws of the United States and New Jersey. In short, Demetro asserts that NABI has targeted and defamed him due to his Romani ethnicity by cataloguing him in its online database and sharing allegedly unsubstantiated accusations of criminal conduct.

         After my dismissal of some of plaintiffs claims (DE 61, 62), the remaining causes of action are as follows: (i) common law defamation (Count 1); (ii) violation of plaintiffs right to equal protection of the law under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act ("NJCRA"), N.J. Stat. Ann. § 10:6-1 et seq. (Count 5); (iii) violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-12(f) based on discrimination in a place of public accommodation (Count 6); and (iv) civil conspiracy to violate plaintiffs right to equal protection of the law under 42 U.S.C. § 1985 and the NJLAD (Count 7).

         Theories of defamation and selective prosecution I must reject for lack of evidence. The website, fairly read, reported that Demetro had been criminally charged, which is a true statement and therefore not defamatory. The record also demonstrates that the website did not catalyze any discriminatory prosecution or official mistreatment of Demetro, who was charged locally based on an independent civilian complaint.

         Equal protection claims, however, remain in play. There is evidence from which a fact finder need not, but could, conclude that information was published on this website on a discriminatory basis. Some of the language on this website is appalling, and the citizens have a right to expect better of the police.

         I say "the police" because the members in question are police officers. They do not necessarily lose that status because they are acting under the auspices of an antifraud organization, which occupies a sort of queasy middle status between official and unofficial.

         I say "appalling" because the website at times speaks in broad ethnic categories, attributing fraudulent practices and motives to the Romani people generally (who are referred to as "gypsies," a charged and at least potentially derogatory term). Of course law enforcement may, when appropriate, use race or ethnicity (or height, or weight, or eye color) to identify suspects. Of course law enforcement may focus its attention on gangs or criminal organizations that associate along ethnic lines. And of course this court does not sit as a general arbiter of the language on websites. But police-published statements attributing criminality to ethnic groups-as opposed to factual statements about particular persons or criminal organizations-can undermine public confidence that the laws are being administered fairly.

         Now before the Court are NABI's motion for summary judgment (DE 83), and the motion of Pochek and Woodbridge for summary judgment (DE 84), pursuant to Fed.R.Civ.P. 56. For the reasons stated in this Opinion, the motions are denied in part and granted in part. Defendants' motions for summary judgment are granted as to the defamation claim (Count 1) and the NJLAD claim for discrimination in a place of public accommodation (Count 6). Defendants' motions are denied as to the equal protection claims, both the direct claim under 42 U.S.C. § 1983 and the NJCRA (Count 5) and the conspiracy claim under 42 U.S.C. § 1985 (Count 7).

         I. BACKGROUND [2]

         A. Factual Background

         i. The Parties

         Plaintiff Clark Demetro is a man of Romani ethnic descent who resides in Elizabeth, New Jersey.[3] (DE 97 ¶ 1; DE 83-10 at 4; Pl.CS ¶ 1). The Romani people (also referred to as "Roma" or "Rom") are a distinct ethnic group originally of Asian origin. Historically and colloquially they have been described with the epithet "Gypsy," which can carry a derogatory connotation. (DE 21 at pp.4-5, ¶¶ 1, 5). The Roma have historically suffered from discrimination based on their origin and an assumed connection with criminality. (Id.).

         Demetro was engaged in the business of home renovations through his company, Clark & Sons, which was incorporated in New Jersey in 2013 and has since discontinued operations. (DE 97 ¶ 2; DE 83-10 at 9, 15; RP/W SMUF ¶ 31; Pl. SMUF re RP/W ¶ 31). Clark & Sons advertised in "Home Magazine" and similar publications in New Jersey, on, and in flyers handed out by Demetro. (RP/W SMUF ¶¶ 33-35; Pl.SMUF re RP/W ¶¶ 33-35). Demetro did not maintain any business records for Clark & Sons. (RP/W SMUF ¶ 37; Pl.SMUF re RP/W ¶ 37). He could only remember the names and addresses for two of the customers that Clark & Sons serviced. (RP/W SMUF ¶ 38; Pl.SMUF re RP/W ¶ 38).

         NABI is a non-profit organization that provides information to its members about suspected fraudulent activity involving 'transient' criminals. (NABI SMUF ¶ 2; Pl. SMUF re NABI ¶ 4; RP/W SMUF ¶ 39; Pl. SMUF re RP/W ¶ 39). NABI's members include law enforcement personnel and individuals employed in related fields who are involved in the detection and prosecution of criminal conduct, and the apprehension of defendants. (NABI SMUF ¶ 3).[4] It compiles and distributes materials regarding recent developments in fraud related crimes through electronic newsletters and bulletins. (NABI SMUF ¶ 4).

         NABI has a history of publishing articles that include racially charged generalizations about persons of Romani descent. (PL CS ¶¶ 23-24; DE 97 ¶¶ 23-24). For example, the following are excerpts from articles or text that appeared on NABI's website:

         "We've all heard tales about gypsies and their mysterious ways, though there's a good chance, many of those stories aren't true. But these people really do exist. . . . Their faces look like anybody else's here, but police say these individuals, all Romanian citizens, [5] are a modern take on notorious gypsies of old. . . . They'll look for checkbooks, jewelry. . . anything that they think they can convert to money." (DE 90-1 at 31).

"Ignorance is the Gypsies' weapon against the outside world." (DE 90-1 at 40).

(Pl. CS ¶¶ 23-24; DE 97 ¶¶ 23-24).

         Some of the NABI website postings include disclaimers of discrimination. For example, an article reporting on NABI's 2006 annual conference notes one speaker's generous concession that "[n]ot all Gypsies or Rom are criminals." (DE 90-1 at 37). Nonetheless, the participants' statements tiien largely cast such caution aside: the speaker goes on to explain that NABI's "main target was the thefts, swindles and frauds perpetrated by Gypsies." (Id.). The article also quotes a detective who presented at a NABI conference as follows:

In his presentation, Det. Gary Nolte of Skokie showed a painting of wagons passing through a bucolic countryside. "Most of America thinks this is what a Gypsy is, I kid you not," Nolte said. Americans "think it's fun. They think it's a joke. Tambourine-thumping, banjo-playing buffoons. That's what [Gypsies] want us to think. But they're not."

(Id.). The article again quotes Nolte: "The Gypsies, Nolte said, *have a common goal, and that's to get over on us. They're going to steal from the gaje [the non-Gypsy] every day of their life.*" (Id.). The remainder of the account of the NABI conference contains many other such descriptions, all pertaining to "Gypsies" (or suspected "Gypsies").

         The reporter who wrote the article also obtained the comments of a university scholar (not a guest at the conference, apparently) who pointed out that the NABI officers' attitudes "are especially egregious because of the long history of persecution of Gypsies." (Id.).

         NABI's database has included photographs of individuals recently arrested or suspected of criminal activity. (DE 90-1 at 23, 25, 43-47; Pl. CS ¶¶ 14, 15, 23, 24; DE 97 ¶¶ 14, 15, 23, 24). Beneath those headshots, NABI includes details about the individuals such as their height, weight, hair color, eye color, potential aliases, and a brief summary about their alleged misconduct. (Id.). Next to some of these individuals' names appears a notation "G/M" or "G/F", which perhaps stands for "Gypsy/Male" and "Gypsy/Female", although the parties have not explicitly said so. (Id.). Out of the sample provided to the Court, most of the images have either "G/M" or "G/F" next to the name, while a few names have "W/M" or "W/F", which ostensibly means "White/Male" and "White/Female." (Id.).[6]

         Demetro appears in two NABI posts that have "G/M" next to his name and image. (DE 90-1 at 23, 25; Pl. CS ¶¶ 9, 14, 15; DE 97 ¶¶ 9, 14, 15). One of those posts, from April 12, 2002, includes a description of Demetro selling a watercraft at a pawnshop in Philadelphia. (DE 90-1 at 23). It also says that "Demetro has an extensive record for Assaulting Police and Resisting Arrest when police are called to domestic situations involving him." [Id.). "G/M" is directly next to his name. [Id.). The second post is from March 30, 2012, and also has "G/M" directly next to his name. (DE 90-1 at 25). This post describes a Georgia traffic stop in which Demetro was found to possess $20, 000 in cash. It also says that "Demetro is involved in several scams involving Auto body work and Psychic readings." (Id.). Demetro appears in a third NABI post from May 2014, which is discussed in further detail below, see subsection I.A.ii, although that third post does not refer to Demetro's ethnicity. (DE 90-1 at 6).[7]

         Access to the portion of NABI's website that includes information about fraud suspects is restricted to NABI's members. This section requires a username and password to log in. (NABI SMUF ¶ 12). NABI has two classes of membership with separate privileges: law enforcement ("LE") members and associate members. (NABI SMUF ¶ 7; Pl. SMUF re NABI ¶ 7).

         To qualify for LE membership, applicants must submit proof that they are sworn law enforcement officers or certified by their agency to access federal, state, and local databases involving criminals, suspects, and arrestees. (NABI SMUF ¶ 8; Pl. SMUF re NABI ¶ 8). According to NABI, only LE members receive NABI materials with private and sensitive information, such as a suspect's social security number, birthdate, or FBI number. (NABI SMUF ¶ 9).

         Associate members of NABI, who are generally in the fields of loss prevention, insurance, banking, or bail bonds, receive NABI materials with redacted personally identifiable information (Til") and do not have access to the unredacted materials available to LE members. (NABI SMUF ¶¶ 10, 11). The general public does not have access to the redacted or unredacted information accessible by associate members or LE members, as the website requires login credentials to view that material. (RP/W SMUF ¶ 50; Pl. SMUF re RP/W ¶ 50).

         Under NABI rules, LE members are not permitted to disclose information found on the unredacted version of the online database or bulletins outside of authorized LE channels. (RP/W SMUF ¶ 51; Pl. SMUF re RP/W ¶ 51). It is not entirely clear how this rule is enforced and whether NABI has any actual restrictions that prevent LE members from sharing the unredacted information with unauthorized third parties. (Id.).

         Demetro disputes the assertion that only NABI members can access the materials about fraud suspects on its website because he, although not a member, possesses copies of NABI's online materials that disclose his PH. (Pl. SMUF re NABI ¶ 9). During the course of discovery, however, Demetro has refused to explain with particularity how he obtained the NABI posts that would otherwise only be accessible to its members. See Subsection I.A.iii, infra.

         NABI itself has no authority to arrest or prosecute any criminal suspect. (NABI SMUF ¶ 15; Pl. SMUF re NABI ¶ 15). LE members who perform their LE duties do so pursuant to their LE roles and not on behalf of NABI. (NABI SMUF ¶ 16; Pl. SMUF re NABI ¶ 16).

         Defendant Woodbridge is a municipality organized under N.J. Stat. Ann. 40A:61-1. (RP/W SMUF ¶ 52; Pl. SMUF re RP/W ¶ 52). Woodbridge has a police department (the "Woodbridge PD") (Id., ).

         Defendant Pochek is a police officer who has been employed with the Woodbridge PD since 1995. (RP/W SMUF ¶ 54; Pl. SMUF re RP/W ¶ 54). Pochek became a LE member of NABI in 2004 and has served on NABI's Board of Directors intermittently from 2007 through the present. (RP/W SMUF ¶ 55; Pl.SMUF re RP/W ¶ 55; Pl. CS ¶ 13; DE 97 ¶ 13). Pochek served as NABI's Executive Secretary from 2009 through 2014. (Id.). Pochek's employer was aware of his activities with and membership in NABI. (Pl. CS ¶ 21; DE 97 ¶ 21).

         Demetro has been arrested on 26 separate occasions, including the "Del Rosso Incident" outlined below. (NABI SMUF ¶ 19; Pl. SMUF re NABI ¶ 19). None of those arrests involved officers who were working on behalf of NABI. (NABI SMUF ¶ 17; Pl. SMUF re NABI ¶ 17). At least three of those arrests resulted in criminal convictions for fraud or forgery-related offenses. (NABI SMUF ¶ 20; Pl. SMUF re NABI ¶ 20). Defendants attach various documents that describe some of those arrests. (See NABI SMUF ¶¶ 21-23, 25; Pl. SMUF re NABI ¶¶ 21-23, 25).

         ii. The Del Rosso Incident

         On April 25, 2014, Michael Del Rosso ("Del Rosso") filed an official incident report with the Woodbridge PD against Demetro alleging that Demetro and his company had committed theft by deception. (NABI SMUF ¶ 35; Pl. SMUF re NABI ¶ 35). On May 16, 2014, Detective Andrew Kondracki of the Woodbridge PD interviewed Del Rosso about the basis for the incident report. (NABI SMUF ¶ 36; Pl. SMUF re NABI ¶ 36).

         As alleged in Del Rosso's statement to Det. Kondracki, Del Rosso's mother's driveway needed repair work, so he contacted Clark & Sons around March 31, 2014, which his mother learned of from an advertisement in a local flyer. (NABI SMUF ¶ 37; Pl. SMUF re NABI ¶ 37). After "slicing" the concrete on the driveway, Demetro determined that the project would cost $7, 500. (NABI SMUF ¶ 38; Pl. SMUF re NABI ¶ 38). Del Rosso then signed an agreement with Clark 8s Sons to complete the work for $7, 500. (NABI SMUF ¶ 39; Pl. SMUF re NABI ¶ 39). Del Rosso paid Demetro an initial deposit of $4, 350. (Id.).

         According to what Del Rosso told the Woodbridge PD, Demetro never began work on the project, but instead returned two days later and claimed that he needed more money. (NABI SMUF ¶ 40). Del Rosso agreed to enter into another contract with Clark & Sons to also do some work on the house's gutters and gave Del Rosso an additional check of $600 for the gutter repairs. (Id. ¶ 41; RP/W SMUF ¶ 74; Pl. SMUF re RP/W ¶ 74). Clark 86 Sons did repair Del Rosso's mother's gutters, but the work was allegedly done so poorly that Del Rosso had to hire another contractor to properly repair it. (NABI SMUF ¶ 42). With respect to the driveway, Demetro told Del Rosso that Clark & Sons could no longer complete the renovations for the $7, 500 to which Del Rosso had initially agreed but instead required another $3, 000 to complete the job. (Id. ¶ 43).

         At this point, Demetro told Del Rosso that Del Rosso would lose die entirety of his deposit if he did not provide the additional $3, 000. (Id.). Del Rosso decided to give Sons & Clark a check for $2, 000, but after having second thoughts, Del Rosso cancelled the check before anyone cashed or deposited it. (DE 83-15 at 3). Then, on April 13, 2014, Demetro showed up in person at the house and demanded more money from Del Rosso. (Id.). Motivated by the concern that he would lose the money he already put down as a deposit, Del Rosso withdrew $2, 000 in cash from his bank and gave it to Demetro. (Id.; RP/W SMUF ¶ 83; Pl.SMUF re RP/W ¶ 83; NABI SMUF ¶ 42).

         This brought the total that Del Rosso gave Demetro / Clark & Sons to $6, 950. (DE 83-15 at 2). Driven by die large sums of money Demetro demanded upfront without performing more work on the driveway, around April 22, 2014 Del Rosso researched Clark & Sons online and found numerous complaints about the company, seemingly suspicious details about Demetro doing business under different names (such as Clark Signo), and details about one of his arrests in Florida. (NABI SMUF ¶ 45; DE 83-15 at 3; RP/W SMUF ¶¶ 84-86, 99; Pl.SMUF re RP/W ¶¶ 84-86, 99).

         Del Rosso approached Demetro about the information he discovered from his online research but Demetro denied the accusations. (NABI SMUF ¶ 45; DE 83-15 at 3). Del Rosso never stated diat the information he found online was from NABI's website. (RP/W SMUF ¶ 87; Pl. SMUF re RP/W ¶ 87).

         After providing die $2, 000 in cash to Demetro, Del Rosso had trouble getting in contact with Demetro. (Id.). When tiiey finally did speak, Del Rosso informed Demetro that he wanted back the money he put down as a deposit. (Id.). Demetro did not return the money and Clark & Sons did not do any additional repair work for Del Rosso on the driveway or otherwise. (Id.).

         Del Rosso then filed the April 25, 2014 incident report with the Woodbridge PD describing these allegations. (NABI SMUF ¶ 35; Pl. SMUF re NABI ¶ 35). As a result of this incident report, several arrest warrants were issued for Demetro, and Woodbridge PD officers attempted to locate him. (NABI SMUF ¶ 46; Pl.SMUF re NABI ¶ 46).

         On May 27, 2014, Demetro was arrested by the Woodbridge PD as a consequence of the Del Grosso Incident. (RP/W SMUF ¶ 104; Pl. SMUF re RP/W ¶ 104). On November 20, 2014, Demetro was indicted on several criminal counts, which included charges for theft by deception and violations of die Contractor Registration Act, N.J. Stat. Ann. 56:8-136, et seq. (NABI SMUF ¶ 49; Pl. SMUF re NABI ¶ 49; RP/W SMUF ¶ 105; Pl. SMUF re RP/W ¶ 105).

         On January 7, 2015, Demetro pled guilty to one count of Failure to Display Registration Number, N.J. Stat. Ann. 56:8-144 (RP/W SMUF ¶ 106; Pl. SMUF re RP/W ¶ 106). On March 6, 2015, Demetro was sentenced to one year of probation and was ordered to pay restitution to Del Rosso in the amount of $6, 350-only $600 less than the total amount Del Rosso paid to Clark & Sons, seemingly taking into account the work performed on the gutters. (Id.; DE 83-16 at 4).

         iii. Online Posts About Demetro

         On May 22, 2014, six days after Det. Kondracki interviewed Del Rosso, and while detectives from the Woodbridge PD were actively attempting to locate Demetro, Pochek posted information on NABI's website (the "May 22 Post"). The May 22 Post stated that Demetro used Clark & Sons "to scam victims into paying for work that is never performed" and was "wanted for Theft by Deception among other offenses." (DE 90-1 at pp. 5-7; NABI SMUF ¶¶ 34, 50; Pl. SMUF re NABI ¶¶ 34, 50; Pl.CS ¶ 3; DE 97 ¶ 3; RP/W SMUF ¶ 95; Pl.SMUF re RP/W ¶ 95). The May 22 Post shows two photos of Demetro, lists his social security number, date of birth, height, address, driver's license number, and his arrest warrant number. (DE 90-1 at pp. 5-7). Pochek derived this information from the complaint that charged Demetro with Theft by Deception and violations of the Contractor Registration Act. (RP/W SMUF ¶ 96; Pl. SMUF re RP/W ¶ 96).

         On May 30, 2014 Pochek updated the entry about Demetro on NABI's website, explaining that Demetro was arrested by the Woodbridge PD, processed, and released after posting bail (the "May 30 Update"). (Id.). Pochek noted that the case was deemed "closed pending [a] court hearing." (Id.). Like the May 22 Post, the May 30 Update was only posted on the secure portion of NABI's website accessible only to LE and associate members. (RP/W SMUF ¶ 95; Pl. SMUF re RP/W ¶ 95).

         Nowhere in the May 22 Post or the May 30 Update is Demetro identified as Romani or a "Gypsy." (RP/W SMUF ¶ 98; Pl. SMUF re RP/W ¶ 98). There is no mention of Demetro's racial or ethnic background at all in those posts. (Id.).

         Demetro does not describe in detail how he obtained copies of NABI's online materials about him, which are ordinarily only accessible to NABI members. Demetro claimed that a law enforcement officer-whose name he could not recall during his deposition-showed him the content. (DE 83-10 at 43; RP/W SMUF ¶ 100; Pl. SMUF re RP/W ¶ 100). Demetro could not remember which police department this unnamed officer worked for, but could recall that the officer was no longer on the force. (DE 83-10 at 43). Ultimately, Demetro has refused to disclose this officer's name during the course of discovery. (RP/W SMUF ¶ 101; Pl.SMUF re RP/W ¶ 101) Demetro was evasive when questioned about the details of how the unnamed officer procured this information and shared it with him. (See DE 83-10 at pp. 43-44).

         At some point prior to the Del Rosso Incident, Demetro had searched his own name online and found unsavory descriptions of his prior business dealings and encounters with the criminal justice system. (RP/W SMUF ¶¶ 57-59; Pl. SMUF re RP/W ¶¶ 57-59).

         On March 22, 2014, nine days prior to Demetro's initial contact with Del Rosso, a former Clark & Sons customer, Lynn Solomon, complained about her engagement with Clark & Sons on a website called (RP/W SMUF ¶ 60; Pl.SMUF re RP/W ¶ 60). Solomon alleged in her post that Demetro performed substandard work, tried to get paid before the project was completed, walked off die job when she would not pay in advance of completion, and left a "major mess." (Id.; NABI SMUF ¶¶ 32-33; Pl. SMUF re NABI ¶¶ 32-33), On April 15, 2014, Solomon updated her previous post on to explain how Demetro had been arrested in Florida under a different name and that he had been using a separate name in New Jersey. (RP/W SMUF ¶ 61; Pl.SMUF re RP/W ¶ 61).

         B. Procedural Background

         About three years prior to the commencement of this action, Demetro was involved in another federal lawsuit against NABI that made claims similar to those asserted in this case. See Demetro v. Police Dep't, City of Cherry Hill, N.J., No. 11-cv-4377 (JLL), 2011 WL 5873063 (D.N.J. Nov. 22, 2011). In that case, Demetro was part of a group of plaintiffs suing NABI and various police departments and officers based on alleged constitutional violations due to the plaintiffs' Romani ethnic background. See id., 11-cv-4377 at ¶ 18.

         While named as a defendant, NABI was never served in that action and did not otherwise appear. Demetro, 2011 WL 5873063, at *3 f[T]here is no indication on the Court's docket that service of process on NABI has been properly effectuated, and NABI has not filed a responsive pleading or joined in the motions to dismiss currently pending before the Court."). Ultimately, the plaintiffs in that case stipulated to its dismissal without prejudice in August 2012 without NABI ever having appeared or been served. See id., No. 11-cv-4377 at ¶ 42.

         On October 21, 2014, Demetro and Clark & Sons filed their original complaint in this action. (DE 1). On November 24, 2015, Plaintiffs filed an amended complaint. (DE 21). On January 6, 2017, NABI filed a motion to dismiss all claims for lack of personal jurisdiction and for failure to state a claim. (DE 47). In an Opinion and Order dated September 7, 2017, I granted in part and denied in part NABI's motion to dismiss the amended complaint, dismissing some of the claims and allowing others to proceed. (DE 61, 62). Demetro v. Nat'l Ass'n of Bunco Investigations, No. 14-6521, 2017 WL 3923290, at *l (D.N.J. Sept. 7, 2017) ("MTD Opinion").

         Specifically, I granted the motion to dismiss with respect to the following claims: Count 2 for commercial disparagement because plaintiffs failed to plead special damages; Counts 3 and 4 for defamation and false light because the claims were untimely; and Counts 5 and 7 for violations of 42 U.S.C. § 1983 and the NJCRA only insofar as they asserted claims based on reputational stigma alone. Counts 5 and 7 survive, however, insofar as they assert equal protection claims. (DE 61, 62). See Demetro v. Nat'l Ass'n of Bunco Investigations, No. 14-6521, 2017 WL 3923290 (D.N.J. Sept. 7, 2017). Additionally, I denied the motion to dismiss with respect to Count 1, a timely claim for defamation, and Count 6, a claim for public accommodation discrimination under the NJLAD, both of which remain. Id.

         The September 7, 2017 dismissals were without prejudice to the filing of a motion for leave to amend the complaint within 30 days. (DE 61, 62). There having been no motion to amend, those dismissals have ripened into dismissals with prejudice. (DE 62, 66, 75, 81).

         Now before the Court are the motion of NABI (DE 83} and the motion of Pochek and Woodbridge (DE 84) for summary judgment on ...

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