CROSSLINK TECHNOLOGIES, INC. VS. ATLANTA TRADING & ENGINEERING CONSULTING, LLC VS. AMIRIT TECHNOLOGIES, INC. (L-2348-15, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 3, 2019
• Docket: A-5548-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5548-16T2

CROSSLINK TECHNOLOGIES, INC.,

Plaintiff-Appellant,

v.

ATLANTA TRADING & ENGINEERING CONSULTING, LLC, TETRO SYSTEMS, LLC, and AHMED ABOGENDIA,

Defendants/Third-Party Plaintiffs-Respondents,

AMIRIT TECHNOLOGIES, INC., RAJEEV SHARMA, RITU SHARMA, AMITA MAHAJAN, and ASHEESH MAHAJAN,

Third-Party Defendants. _____________________________

Argued October 11, 2018 – Decided September 3, 2019

Before Judges Whipple and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2348-15.

Daniel Ginzburg argued the cause for appellant (The Ginzburg Law Firm, PC, attorneys; Daniel Ginzburg, on the briefs).

Denis F. Driscoll argued the cause for respondents (Inglesino, Webster, Wyciskala & Taylor, LLC, attorneys; Denis F. Driscoll and Owen T. Weaver, on the brief).

PER CURIAM

Plaintiff Crosslink Technologies, Inc. (Crosslink) appeals from the July

28, 2017 order of the Law Division granting summary judgment to defendants

and dismissing Crosslink's complaint for lack of jurisdiction. We affirm.

I.

The following facts are derived from the record. Crosslink provides

engineering-related and construction services to wireless communications

companies in New Jersey and elsewhere.1 A portion of its business involves the

placement of its employees in temporary positions with mobile telephone

service providers for the completion of discrete projects. Crosslink is an affiliate

of third-party defendant Amirit Technologies, Inc. (Amirit), which provides the

same services as Crosslink. Third-party defendants Rajeev Sharma and Asheesh

1 Crosslink was previously known as Crosslink Technologies, LLC. A-5548-16T2 2 Mahajan are owners and principals of both Amirit and Crosslink. At all relevant

times, neither Crosslink nor Amirit were licensed and/or registered as a private

employment agency pursuant to the Private Employment Agency Act (Act),

N.J.S.A. 34:8-43 to -66.

Prior to March 11, 2015, Amirit had a business relationship with T-

Mobile, Inc. (T-Mobile), a mobile telephone service provider, and would

provide its employees to perform services to T-Mobile for a fee. Although many

of Amirit's employees were assigned to T-Mobile for years, those employees

were never employees of T-Mobile.

Defendant Atlanta Trading & Engineering Consulting, LLC (Atlanta

Trading) provides engineering services to wireless communications companies.

On occasion, Atlanta Trading worked as a subcontractor for Amirit through

agreements in which Amirit outsourced a portion of its work for its clients,

including T-Mobile, to Atlanta Trading. Defendant Ahmed Abogendia is a

principal of Atlanta Trading.

On March 11, 2015, T-Mobile terminated its business relationship with

Amirit. T-Mobile, however, informed Amirit it wished to retain the twenty-

three Amirit employees then working on projects at T-Mobile. Amirit,

motivated by a desire to protect both its employees and its revenue source,

A-5548-16T2 3 sought to find a replacement for itself as the entity supplying the twenty-three

employees to T-Mobile.

On April 14, 2015, the principals of Amirit and Atlanta Trading met.

Crosslink alleges that at that meeting, Amirit and Atlanta Trading entered into

an oral agreement. According to Crosslink, Atlanta Trading agreed to hire the

twenty-three employees previously assigned to T-Mobile by Amirit and retain

five percent of the revenue it received from T-Mobile for the employees' work.

The remaining ninety-five percent of the revenue would be given to Amirit.

The parties agreed to, in effect, prevent T-Mobile from becoming aware

that Amirit, with which it had severed its business ties, was receiving any

revenue from the employees. Atlanta Trading alleges that Sharma and/or

Mahajan told Atlanta Trading to remit the ninety-five percent of revenue to

Crosslink and to make the payments through a subsidiary of Atlanta Trading,

Singular Tech, LLC (Singular).

Following the meeting between the principals, the twenty-three employees

switched their employment to Atlanta Trading and remained in their positions

at T-Mobile. Atlanta Trading began billing T-Mobile for the services provided

by the employees. Although Singular transferred some payments to Crosslink,

it later refused Crosslink's demands for ninety-five percent of the revenue it was

A-5548-16T2 4 receiving from T-Mobile. Ultimately, Atlanta Trading informed Crosslink that

it did not believe the parties had entered into a binding contract.

On October 5, 2015, Crosslink filed a complaint in the Law Division

alleging breach of contract, fraud in the inducement, quantum meruit, unjust

enrichment, theft of trade secrets, violations of the New Jersey Consumer Fraud

Act, N.J.S.A. 56:8-1 to -210, and violations of the Uniform Fraudulent Transfer

Act, N.J.S.A. 25:2-20 to -34. Crosslink sought compensatory damages of

$5,257,297.90, punitive damages, an accounting, interest, attorney's fees and

costs.

After a non-binding arbitration award in their favor and the scheduling of

a trial date, defendants moved for summary judgment, arguing a lack of

jurisdiction based on Crosslink's failure to register as a private employment

agency under the Act. Crosslink cross-moved to adjourn the trial date, arguing

a need to conduct discovery and unavailability of counsel, and that defendants'

motion was untimely.

On February 27, 2017, the trial court denied defendants' motion, finding

that it was untimely because it was not filed and returnable thirty days in

advance of the first trial date. In addition, the court denied Crosslink's cross-

motion and dismissed the complaint for lack of prosecution.

A-5548-16T2 5 On March 10, 2017, Crosslink moved for reconsideration of the order

dismissing its complaint. Defendants cross-moved to dismiss the complaint,

again arguing Crosslink's failure to register as a private employment agency

under the Act deprives the court of jurisdiction to entertain Crosslink's

complaint.

On April 11, 2017, the court granted Crosslink's motion in part, allowing

it to take Abogendia's deposition. The court also denied defendants' cross-

motion. The court did not provide written or oral findings of fact or conclusions

of law.

Just prior to trial, defendants again moved to dismiss the complaint for

failure to state a claim, arguing a lack of jurisdiction under the Act. Crosslink

opposed the motion on the merits and argued that defendants were precluded

from making the motion by collateral estoppel and the law of the case doctrine.

On July 28, 2017, the trial court granted defendants' motion. The court

rejected Crosslink's argument under the law of the case doctrine, concluding

"that there was no ruling on the merits of defendant[s' prior] application[s]" and

"no hearing on the merits of the issues raised" in opposition to defendants' prior

motions. With respect to the question of jurisdiction, the court concluded that

Crosslink was an employment agency as defined by the Act, but had failed to

A-5548-16T2 6 obtain a license as required by the statute. Thus, the court concluded, Crosslink

was subject to the Act's bar on filing suit to collect a fee, charge, or commission

for the performance of employment services. N.J.S.A. 34:8-45(b). The court

entered an order granting defendants' summary judgment motion and dismissing

the complaint for lack of jurisdiction. 2

This appeal followed. Crosslink argues that the court erred in not barring

defendants' motion under the collateral estoppel and law of the case doctrines.

In addition, Crosslink argues that the court incorrectly concluded that Crosslink

was subject to the Act and its provision precluding suit to collect fees for

employment agency services by an unlicensed entity.

II.

[W]here a litigation has not terminated, an interlocutory order is always subject to revision where the judge believes it would be just to do so. The rules governing final judgements, for example, that evidence must be newly discovered to be considered, R. 4:50-1(b), do not apply in the interlocutory setting. Nor is the judge constrained, as would a reviewing court be, by the original record.

[Lombardi v. Masso, 207 N.J. 517, 536-37 (2011).]

2 Although defendants moved to dismiss the complaint for failure to state a claim upon which relief may be granted, the court employed the summary judgment standard because it considered materials outside of the pleadings. A-5548-16T2 7 "The 'law of the case' doctrine sometimes requires a decision of law made

in a particular case to be respected by all other lower or equal courts during the

pendency of that case." State v. Reldan, 100 N.J. 187, 203 (1985). However,

the doctrine, "insofar as it is applied to rules or orders of an interlocutory nature

is itself discretionary. It should be applied flexibly to serve the interests of

justice." Id. at 205. "Thus the proper exercise of this discretion should take into

account a number of relevant factors that bear on the pursuit of justice and,

particularly, the search for truth." Ibid.

The factors to be considered in re-examining an interlocutory order are:

(1) an unfair advantage over the non-moving party, (2) the moving party's good

faith, and (3) fairness to the non-moving party. Id. at 205-06. "In short, the law

of the case doctrine does not obligate a judge to slavishly follow an erroneous

or uncertain interlocutory ruling." Gonzalez v. Ideal Tile Importing Co., 371

N.J. Super. 349, 356 (App. Div. 2004). Whether the court "correctly applied the

law-of-the-case doctrine is a matter of law, and therefore our standard of review

is de novo." State v. K.P.S., 221 N.J. 266, 276 (2015).

After carefully reviewing Crosslink's arguments in light of the record and

applicable legal principles, we find no error in the court's consideration of

defendants' third motion to dismiss the complaint for lack of jurisdiction. It is

A-5548-16T2 8 clear from the record that defendants' motion was denied by the court the first

two times it was made based on procedural considerations. There are no

findings of fact or conclusions of law by the court with respect to whether the

Act barred Crosslink's complaint prior to the July 28, 2017 hearing on

defendants' third motion. Simply put, there was no law of the case with respect

to jurisdiction prior to entry of the July 28, 2017 order.

In addition, we note that "[t]he issue of subject matter jurisdiction may be

raised at any time." Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div.

2000). It was appropriate for the court to address the jurisdictional question of

whether the Act precluded it from hearing Crosslink's claims prior to the start

of trial.

III.

"As a general principle, [c]ollateral estoppel is that branch of . . . res

judicata which bars relitigation of any issue which was actually determined in a

prior action[.]" In re Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013)

(quoting Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114 (2011)). For

the doctrine to apply,

the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior

A-5548-16T2 9 proceedings issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20- 21 (1994)).]

Collateral estoppel is distinguishable from res judicata in "that it alone bars

relitigation of issues in suits that arise from different causes of action."

Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000).

"[R]es judicata applies when either party attempts to relitigate the same cause

of action. Collateral estoppel applies when either party attempts to relitigate

facts necessary to a prior judgment." T.W. v. A.W., 224 N.J. Super. 675, 682

(App. Div. 1988). Application of collateral estoppel to bar a plaintiff's claims

presents an "issue of law 'to be determined by a judge in the second proceeding

after giving appropriate weight to the factors bearing upon the issue.'" Selective

Ins., 327 N.J. Super. at 173.

Crosslink's reliance on collateral estoppel is misplaced, given that the

doctrine applies where a final substantive decision is made by a court in a prior

proceeding. Here, Crosslink argues that the court's own interlocutory orders

A-5548-16T2 10 denying defendants' first two motions are the basis on which it is entitled to

collateral estoppel. The doctrine does not apply in these circumstances.

IV.

We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 529-30 (1995)). Our

review is "based on our consideration of the evidence in the light most favorable

to the parties opposing summary judgment." Brill, 142 N.J. at 523.

It is a violation of the Act to "[o]pen, conduct, or maintain, either directly

or indirectly, an employment agency or perform any of the functions of an

A-5548-16T2 11 employment agency without first obtaining a valid employment agency

license[.]" N.J.S.A. 34:8-52(a). In addition,

[a] person shall not bring or maintain an action in any court of this State for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act without alleging and proving licensure or registration, as appropriate, at the time the alleged cause of action arose.

[N.J.S.A. 34:8-45(b).]

The Act covers both "Consulting firm[s]" and "Employment agenc[ies]."

N.J.S.A. 34:8-43.

"Employment agency" means any person who, for a fee, charge or commission: (1) [p]rocures or obtains, or offers, promises or attempts to procure, obtain, or assist in procuring or obtaining employment for a job seeker or employees for an employer; or (2) [s]upplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General . . . ; or . . . (4) [a]cts as a placement firm, career counseling service, or resume service[.]

[Ibid.]

"[T]he Legislature's primary purpose in adopting the [Act] was to regulate

the conduct of all employment agencies providing services to New Jersey

employees and employers." Accountemps Div. of Robert Half of Philadelphia,

Inc. v. Birch Tree Group, Ltd., 115 N.J. 614, 623 (1989). "The Act is a

A-5548-16T2 12 regulatory measure intended to alleviate abuses in the employment-agency

industry. With this remedial purpose in mind, the Legislature required the

licensing of all entities that 'perform any of the functions of an employment

agency.'" Ibid. (quoting N.J.S.A. 34:8-26).

When determining whether the Act applies, the totality of the entity's

conduct is considered. Data Informatics, Inc. v. Amerisource Partners, 338 N.J.

Super. 61, 76 (App. Div. 2001) (finding plaintiff to be an employment agency

because it "arranged [an] interview" with another entity, "supplied" the

employee to the other entity, "and was compensated based on a percentage of

[the employee's] wages"); see also Insight Global, LLC v. Collabera, Inc., 446

N.J. Super. 525, 526 (Law Div. 2015) (finding plaintiff to be an employment

agency when it provided "temporary employees to its clients on both long-term

and short-term bases"); Logic Planet, Inc. v. Uppala, 442 N.J. Super. 488, 490

(Law Div. 2015) (finding plaintiff, "a company specializing in the placement of

information technology . . . consultants" to be an employment agency).

Our review of the record in light of the unequivocal language of the Act

leads us to affirm the trial court's grant of summary judgment to defendants. It

is undisputed that Crosslink is not, and never has been, registered or licensed

under the Act. It argues that it does not fall under the Act because it did not

A-5548-16T2 13 "procure" or "obtain" employment for job-seekers or employees. Crosslink

contends Amirit sold its T-Mobile work orders to Atlanta Trading and that its

shift of employees to that entity was ancillary to the main purpose of the

transaction.

However, the record contains ample evidence that Amirit entered into an

employment placement agreement with Atlanta Trading after its business

relationship with T-Mobile had been terminated. We agree with the trial court's

conclusion that Crosslink's

assertion that [it] was merely collecting fees from [Atlanta Trading's] purchase of Amirit's account with T-Mobile was disingenuous. Crosslink was specifically collecting fees for the provision of employment services to [Atlanta Trading] from Amirit. [Crosslink's] attempts to sequester the collection of fees from the reasons the fees were owed is illogical. Crosslink's right to fees arose out of employment services provided by Amirit to [Atlanta Trading].

We also disagree with Crosslink's argument that because neither it nor

Amirit "routinely" provided employment agency services, Crosslink is not

subject to the Act. The record contains Crosslink's admission that ten percent

of its revenue comes from the "placement of employees" and its arrangement

with Atlanta Trading was to continue as long as any of the employees remained

at T-Mobile.

A-5548-16T2 14 Affirmed.

A-5548-16T2 15