Spoliation of Evidence & Sanctions

"'Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J.Super. 358, 364 (App.Div.1998) (quoting Hirsch v. General Motors Corp., 266 N.J.Super. 222, 234 (Law Div.1993)).

A duty to preserve evidence is a question of law to be determined by the court, and said duty, independent from an Order to preserve evidence, arises when there is: (1) pending or probable litigation; (2) knowledge by the party of the existence or likelihood of litigation; (3) foreseeability of harm to the other party, or in other words, discarding the evidence would be prejudicial; and (4) the evidence is relevant to the litigation. Aetna, supra, 309 N.J. Super. at 366-67.

" 'The spoliator's level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it is a factor to be considered when determining the appropriate remedy for the spoliation.' "  

Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 368 (App. Div. 1998) (quoting Hirsch, supra, 266 N.J. Super. at 256).

The New Jersey Supreme Court held that if spoliation of evidence is discovered during the course of litigation, the offended party can receive an adverse inference jury charge in its case in chief and still assert a separate cause of action for fraudulent concealment of evidence. Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J. 81 (2008); also see Rosenblit v. Zimmerman, 166 N.J. 391, 400-06 (2001).

Adverse inference instruction(s) and relief may include a designation from the Court that certain facts be taken as established, preclude defendant from supporting its defense or opposing Plaintiff’s claims (e.g., liability), prohibiting the introduction of designated matters into evidence, or entry of judgment by default.  Swick v. The New York Times Co., 357 N.J. Super. 371 (App. Div. 2003), certif. denied, 176 N.J. 428 (2003).

Jury Selection and the Use of the Internet during Voir Dire

Trial attorneys are permitted to conduct internet searches (e.g., “Google”) on potential jurors during jury selection.  Carino v. Muenzen, M.D., DOCKET NO. A-5491-08T15491-08T1 (Aug. 30, 2010).  Attorneys are not required to “notify the court or opposing counsel in advance of their intention to take advantage of the internet access made available by the Judiciary." Id.

Despite its ruling, the Appellate Court found that Plaintiff failed to demonstrate any prejudice as a result of the trial court’s ruling, because counsel did not point to a single unqualified juror on whom he would have exercised a peremptory challenge.

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Face of Opportunity Entry: Lawyers Without Borders Entry

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Fraudulent Joinder & Subject Matter Jurisdiction in Federal District Courts

The following is a basic approach to opposing an allegation of Fraudulent Joinder by the defendant(s) after the Plaintiff(s) has moved (or via Order to Show Cause) the Fed. District Court to remand for lack of subject matter jurisdiction:

28 U.S.C. § 1332 provides that the district courts shall have original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States. If this jurisdictional requirement is met, a party to a State action may move pursuant to 28 U.S.C. § 1442 to have the matter transferred to Federal District Court. "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). A corporation is considered a citizen “of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. §1332(c).

Jurisdiction under 28 U.S.C. § 1332(a)(1) requires complete diversity of the parties. That is, no plaintiff can be a citizen of the same state as any of the defendants. Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990).
Removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985)), cert. dismissed sub nom. American Standard v. Steel Valley Auth., 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988).
The Third Circuit summarized the standards to be applied in a fraudulent joinder analysis as follows:

A district court must consider a number of settled precepts in ruling on a petition to remand a case to state court for lack of diversity jurisdiction. When a nondiverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined. But the removing party carries a heavy burden of persuasion in making this showing. It is logical that it should have this burden, for removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.

Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment. But, if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court. . . .

In evaluating the alleged fraud, the district court must focus on the plaintiff's complaint at the time the petition for removal was filed. In so ruling, the district court must assume as true all factual allegations of the complaint. It also must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff.

In Re Briscoe, 448 F.3d at 217, (citing to Batoff v. State Farm Ins. Co., 977 F.2d 848, 851-52 (3d Cir. 1992) ).


Pleadings are grounded in colorable claims In assessing whether a plaintiff has fraudulently joined a defendant, the Court must focus on the factual allegation in the Complaint. Briscoe, 448 F.3d 201, 217 (3d Cir. 2006). Unless the claims against the non-diverse defendant is “wholly insubstantial and frivolous,” joinder cannot be considered fraudulent. Id. at 218. When the district court reviews the Plaintiffs pleadings, it “must assume as true all factual allegations of the complaint. It also must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff.” Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 851-52 (punctuation and citations omitted).

In evaluating the alleged fraud, the district court must focus on the plaintiff's complaint at the time the petition for removal was filed. Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 851-52 (punctuation and citations omitted). The District Court, "[i]n conducting its analysis…is not limited to the pleadings; rather, it may look beyond the pleadings `to identify indicia of fraudulent joinder.'" Pinnacle Choice, Inc. v. Silverstein, No. 07-5857, 2008 U.S. Dist. LEXIS 36786, at *18,19 (D.N.J. May 6, 2008), quoting In re Briscoe, 448 F.3d 201, 219 (3d Cir. 2006). However, "[i]n so doing, `a district court must not step `from the threshold jurisdictional issue into a decision on the merits.'" Pinnacle, 2008 U.S. Dist. LEXIS 36786, at *19, quoting Briscoe, 448 F.3d at 219. In Briscoe, the Court stated that “[a]ssuming a district can ‘pierce the pleadings’ to determine whether a plaintiff has asserted a colorable claim against the non-diverse defendant, ‘that inquiry is far different from the summary judgment type inquiry made by the district court here.’” Briscoe, 448 F.3d at 218. In other words, it is impermissible for the district court to reach the merits of the claims in deciding fraudulent joinder questions; these determinations are best left to the state courts. Thus, "[a] district court must resolve all contested issues of substantive fact in favor of the plaintiff and must interpret any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Winged Lion, 2005 U.S. Dist. LEXIS 26347, at *7, citing Boyer v. Snap-on Tools Corporation, 913 F.2d 108, 111 (3d Cir. 1990).
"If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." See Briscoe, 448 F.3d at 217 and Gil v. Related Mgmt. Co., No. 06-2174, 2006 U.S. Dist. LEXIS 56757, at *5-6 (D.N.J. Aug. 14, 2006), citing Boyer v. Snap-on-Tools, Corp., 913 F.2d 108, 111 (3d Cir. 1990).

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Immigration: Relief from Removal Proceedings

There are two (2) types of removal proceedings for people who are not legal permanent residents:

• The first type of Cancellation of Removal is for certain people who have been in the United States for at least ten years, even illegally. This type of Cancellation of Removal is termed the"Ten Year Cancellation."
• The other type of Cancellation of Removal is for certain people who have lived in the United States at least three years, even illegally. This type of Cancellation of Removal is termed the "Three Year Cancellation."

The first step to determining whether removal proceedings apply is to identify the charging documents filed by the Department of Homeland Security:

• If the document is labeled “Notice to Appear,” (Form I-862) you are in removal proceedings.

• If the document is labeled “Order to Show Cause,” (Form I-221) you are in deportation proceedings.

• If the document is numbered at the bottom, “Form I-110” and “Form I-122” you are in exclusion proceedings.

To qualify for 10-year cancellation, the following requirement must be met:

1. You have lived in the U.S. for at least 10 years in a row;
2. You have been a person of "good moral character" for at least those 10 years;
3. You have not been convicted of certain types of crimes (explained below);
4. Your removal from the U.S. would be exceptionally and extremely hard on your U.S. citizen or legal permanent resident husband, wife, parent, or unmarried child/children under age 21;