DIANA MEY VS. ENVIRONMENTAL SAFETY INTERNATIONAL, INC. (L-3360-20, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 10, 2021
• Docket: A-1207-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1207-20

DIANA MEY,

Plaintiff,

v.

ENVIRONMENTAL SAFETY INTERNATIONAL, INC., a/k/a SEPTIC SAFETY, a/k/a ACTIVATOR 1000, and JOSEPH M. CARNEY,

Defendants-Appellants,

and

JOE REED,

Defendant. ____________________________

JAMES E. SHELTON,

Respondent. ____________________________

Submitted October 20, 2021- Decided November 10, 2021 Before Judges Hoffman and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3360-20.

Freeman Mathis & Gary, LLP, attorneys for appellants (Paul Piantino, III, and Christopher Donnelly, on the briefs).

James E. Shelton, respondent pro se.

PER CURIAM

Defendants Environmental Safety, International, Inc. and Joseph M.

Carney appeal from the August 27, 2020 order denying defendants' motion to

vacate and the September 16, 2020 order denying defendants' motion for

reconsideration. This matter stems from a foreign judgment entered against

defendant Carney in the United States District Court for the Northern District of

West Virginia. Defendants argue before us, as they did to the trial court, that

service was insufficient, and therefore the foreign judgment was void and should

have been vacated. We vacate and remand for further proceedings consistent

with our opinion.

In the West Virginia action, plaintiff Diana Mey alleged that defendants

violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and

the West Virginia Consumer Credit and Protection Act (WVCCPA), W.V.C. §

46A-6F-601, and W.V.C. § 61-3C-14a. Namely, plaintiff alleged that

A-1207-20 2 defendants made unsolicited telemarketing calls to her despite her status on the

National Do Not Call Registry.

In January 2017, plaintiff contacted defendant Carney via mail, sent to 43

Industrial Ave., Fairview, New Jersey 07022 and PO Box 397, Fairview, New

Jersey 07022, informing him that she received "anonymous unsolicited

prerecorded calls" from Environmental Safety, International, Inc. Plaintiff

alleged these calls violated the TCPA and requested $17,000 to settle the claim;

in response, defendants offered $1,500, which plaintiff rejected.

In October 2018, plaintiff filed a complaint against defendants in the

United States District Court for the Northern District of West Virginia, alleging

statutory do-not-call violations. Both the summons and the complaint were sent

to 20 Appletree Lane in Hillsdale (the Appletree Lane address), an address that

defendant Carney claims was "defunct" by then and not in use for a "number of

years." Defendant Carney filed a pro se answer to plaintiff's complaint; in his

first affirmative defense, he claimed that plaintiff failed to properly serve

process and that the court lacked jurisdiction. Defendant Carney maintains that

he was able to file a pro se answer because he was in "constant communication"

with plaintiff at his actual address, despite not receiving the summons and

complaint filed by plaintiff.

A-1207-20 3 In November 2019, plaintiff filed a motion for summary judgment. The

District Court issued a Roseboro notice to defendant Carney via certified mail

to provide notice that a summary judgment motion had been filed. See Roseboro

v. Garrison, 528 F.2d 309 (4th Cir. 1975) (holding that, before entering summary

judgment against a pro se party, the Court must provide the party with fair notice

of the requirements of the summary judgment rule). The notice was sent to the

same address where the summons and complaint were served: the Appletree

Lane address. On December 30, 2019, the post office returned the Roseboro

notice to the District Court, marked "unclaimed" and "unable to forward."

Notwithstanding the return of the Roseboro notice as undelivered, on

January 16, 2020, the District Court entered an order granting plaintiff's motion

for summary judgment. In its order, the court acknowledged that the Roseboro

notice "was returned as undeliverable." Nevertheless, the District Court entered

judgment in favor of plaintiff against defendant Carney in the amount of

$23,171.36; that same day, the judgment was sent by certified mail to the

Appletree Lane address. On February 4, 2020, the certified mailing was returned

to the District Court, marked "refused."

In March 2020, plaintiff assigned her judgment to James E. Shelton

(judgment creditor). In May 2020, pursuant to the Uniform Enforcement of

A-1207-20 4 Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to -33, the foreign

judgment was recorded with the Superior Court of New Jersey, Law Division,

Bergen County; the Superior Court Clerk served a Notice of Judgment Debtor

to defendant Carney at the Appletree Lane address, advising him of the foreign

judgment entered against him. Once defendants eventually received notice of

the domesticated judgment, they filed a motion to vacate the docketed judgment

in the Law Division, moving to collaterally attack the judgment due to

insufficient service of process.

On August 27, 2020, the motion judge ruled that "New Jersey is not the

proper venue for this matter," under N.J.S.A. 2A:49-25 and Rule 4:4-4, and

entered an order denying defendants' motion to vacate. Defendants filed a

motion for reconsideration, which the judge denied. The judge reconfirmed his

previous ruling that "[d]efendants' due process rights were not violated, and

judgment was properly entered in the District Court. This [c]ourt is not the

proper venue for [d]efendants to raise defenses to the West Virginia matter."

On appeal, defendants argue that service of process in the West Virginia

action was insufficient, and that they were deprived of due process. Defendants

similarly argue that they did not receive the Roseboro Notice and therefore

lacked adequate notice and an opportunity to be heard. They note that foreign

A-1207-20 5 judgments are not enforceable in New Jersey where there has been a denial of

due process.

The United States Constitution requires that “Full Faith and Credit shall

be given in each State to the public Acts, Records, and judicial Proceedings of

every other State." U.S. Const. art IV, § 1. A state must therefore enforce the

judgment of a sister state "if rendered by a court with adjudicatory authority

over the subject matter and persons governed by the judgment[.]" Baker v. Gen.

Motors Corp., 522 U.S. 222, 233 (1998). However, the requirements of the Full

Faith and Credit Clause are predicated upon the judgment debtor having been

afforded due process in the forum state. Sonntag Reporting Servs., Ltd. v.

Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005).

When a party obtains a judgment in another state, he or she may

domesticate the judgment in New Jersey pursuant to the UEFJA to facilitate its

enforcement. N.J.S.A. 2A:49A–25 to –33. Through this process, New Jersey

discharges its obligation to give full faith and credit to judgments entered in

other states. Maine v. SeKap, S.A. Greek Coop. Cigarette Mfg. Co.,

S.A., 392 N.J. Super. 227, 235 (App. Div. 2007) (quoting Singh v.

Sidana, 387 N.J. Super. 380, 382 (App. Div. 2006), certif. denied, 189 N.J. 428

(2007)). Domestication of a foreign judgment, however, is not an opportunity

A-1207-20 6 to collaterally attack the foreign judgment, except in limited circumstances, such

as the denial of due process in the state issuing the judgment. McKesson Corp.

v. Hackensack Med. Imaging, 197 N.J. 262, 275 (2009).

A denial of due process occurs when "'the rendering state 1) lacked

personal jurisdiction over the judgment debtor, 2) lacked subject matter

jurisdiction, [or] 3) failed to provide the judgment debtor adequate notice and

an opportunity to be heard.'" Sonntag Reporting Servs., Ltd., 374 N.J. Super. at

538 (quoting In Sik Choi v. Kim, 50 F.3d 244, 248 (3d Cir. 1995)); McKesson,

supra, 197 N.J. at 275. "[A]bsent such due process defenses, a litigation pursued

to judgment in a sister state is conclusive of the rights of the parties in the courts

of every state as though adjudicated therein." Sonntag, supra, 374 N.J. Super. at

538 (citing DeGroot, Kalliel, Traint & Conklin, P.C. v. Camarota, 169 N.J.

Super. 338, 343 (App. Div. 1979)).

Here, a remand is necessary, as the trial court failed to fully consider

whether defendants were properly served in the West Virginia action; therefore,

it likewise failed to consider whether defendants were afforded due process. In

defendant Carney's sworn certification, he stated that, although he owned the

Appletree Lane property, the address "ha[d] not been [his] residence for a

number of years."

A-1207-20 7 Fed. R. Civ. P. 4(h) governs service of out-of-state defendants in federal

court and provides:

Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic . . . corporation . . . must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process. . . .

In turn, Fed. R. Civ. P. 4(e) provides:

Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

A-1207-20 8 (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Considering Fed. R. Civ. P. 4(e)(1) allows for service of process by "following

state law . . . in the state where service [was] made," we look to our New Jersey

Rules of Court. Rule 4:4-4(b)(1) provides that personal jurisdiction can be

obtained by:

(C) mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to:

(1) a competent individual of the age of 14 or over, addressed to the individual's dwelling house or usual place of abode;

....

(3) a corporation, partnership or unincorporated association that is subject to suit under a recognized name, addressed to a registered agent for service, or to its principal place of business, or to its registered office. . . .

A-1207-20 9 The record reveals that in the West Virginia action, service of process was

sent by mail. Thus, only our Rules of Court govern, as the Federal Rules of

Civil Procedure do not expressly permit service by mail. Although the summons

and complaint were sent by mail, it is unknown whether Rule 4:4-4(b)(1)(C) was

satisfied. As noted, defendant Carney certified that the Appletree Lane address

"has not been [his] residence for a number of years." Therefore, the record does

not show that the Appletree Lane address was defendant Carney's "dwelling

house or usual place of abode" or that the Appletree Lane address was the

principal place of business or registered office for Environmental Safety,

International, Inc. In addition, the record is insufficient to determine whether

defendant Carney waived his due process claim by filing an answer, despite the

answer containing an affirmative defense contesting the sufficiency of service

of process.

We further conclude that the motion judge did not sufficiently address the

fact that the Roseboro Notice, issued by the District Court in West Virginia, was

returned to the court as "undeliverable." The Roseboro Notice, as mandated by

the Fourth Circuit Court of Appeals, requires federal courts within the Circuit

to inform a pro se litigant of his or her obligation to respond to a motion for

summary judgment. The return of the notice as "undeliverable" constitutes

A-1207-20 10 evidence that defendants never received it. If so, defendants were arguably

denied adequate notice and an opportunity to be heard. A remand is thus

necessary for the motion judge to fully consider whether defendants were denied

adequate notice, an opportunity to be heard, and ultimately due process. While

the judge cannot vacate the default judgment obtained in West Virginia, the

judge is empowered to vacate the domesticated New Jersey judgment under the

UEFJA if defendants demonstrate they were denied due process. State of Maine

v. SeKap, S.A. Greek Co-op. Cigarette Mfg. Co., S.A., 392 N.J. Super. 227, 235-

36 (App. Div. 2007) (remanding to the trial court for a hearing on the judgment

debtor's due process challenge).

Vacated and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

A-1207-20 11