United States District Court,

1. New Jersey.

Manuel Ramos, Plaintiff,

v.

Cowan Systems, LLC, Defendant.

Civil Action No. 13-3639 (FLW)(LHG) | Signed 12/11/2015

 

 

ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFY DEFENDANTS’ COUNSEL

LOIS H. GOODMAN, United States Magistrate Judge

*1 Presently before the Court is a cross-motion (the “Cross-Motion”) filed by Plaintiff Manuel Ramos (“Plaintiff”) seeking to disqualify the firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP (“the Weber Firm”), and more specifically its attorneys Jeffrey A. Segal (“Segal”) and Nancy Monte Carlo1 from representing Defendants Cowan Systems LLC (“Cowan”) and Thomas J. Hudak, Jr., d/b/a Hudak’s Transportation Services (“Hudak”) (collectively referred to as “Defendants”) in this matter. See (“Plf. Brief”). [Docket Entry No. 30]. Defendants oppose the Cross-Motion and seek an Order requiring Plaintiff to pay their attorneys’ fees in responding as a sanction (the “Opposition”). [Docket Entry No. 46]. Pursuant to Fed. R. Civ. P. 78, the Court has reviewed the submissions of the parties without oral argument. For the reasons set forth below, Plaintiff’s Cross-Motion to disqualify counsel for Defendants is hereby DENIED. Defendants’ request for reimbursement of its fees in opposing the Cross-Motion is GRANTED.

 

 

1. BACKGROUND2

On or about June 10, 2011, Plaintiff was driving a truck eastbound on Route 78 when his vehicle was struck from behind by another truck driven by James Richards (“Richards”). See First Amended Complaint (“FAC”) ¶¶ 15, 17. Plaintiff sustained severe and permanent injuries as a result. FAC ¶22. On June 8, 2013, Plaintiff filed his initial Complaint, naming a single defendant, Cowan Systems, Inc., and identifying it as the owner of the truck operated by Richards. Complaint ¶ 7 [Docket Entry No. 1].

 

On March 14, 2015, Plaintiff filed a motion for leave to amend, seeking to add Hudak as a defendant. At the heart of Plaintiff’s motion to add Hudak was Plaintiff’s discovery that Hudak and Cowan had a lease agreement whereby Hudak provided both trucking equipment and drivers to Cowan. That information was at least in part obtained by virtue of a third-party subpoena Plaintiff served on Hudak. The Weber Firm represented Hudak in responding to the subpoena. By Order dated September 25, 2015, the motion was granted, and Hudak was subsequently joined into the action. The Weber Firm filed an answer on behalf of Cowan and Hudak on October 5, 2015. [Docket Entry No. 39]. It is this joint representation that forms the basis for the present Cross-Motion to disqualify the Weber Firm.

 

 

1. THE PARTIES’ ARGUMENTS
2. Plaintiff’s Arguments

Plaintiff argues that the Weber Firm’s representation of Defendants presents an actual conflict or the serious potential for a conflict which cannot be waived. Plaintiff’s Brief at 1, 5. Plaintiff gives two rationales for this: first, Plaintiff contends that both Hudak and Cowan are parties to a lease, which puts them in an adversarial relationship. Plaintiff’s Brief at 9. Because both of them may be called to testify at trial, Segal would be put in the position of having to cross-examine his own clients.

 

*2 Second, Plaintiff argues that Segal also has a conflict because he has personal knowledge of discovery issues and documents that may or may not be produced. Plaintiff’s Brief at 1, 9. Plaintiff’s counsel may therefore call Segal as a witness at trial. Plaintiff’s Brief at 9.

 

Plaintiff posits that these conflicts are actual and unwaivable. In the alternative, however, he contends that the Court should convene a hearing as to the adequacy of any waiver. Plaintiff’s Brief at 1, 12.

 

In support of these arguments, Plaintiff relies largely on cases arising under the Sixth Amendment.

 

 

1. Defendants’ Arguments

Defendants argue that Plaintiff simply has not given any basis for disqualification. Opposition at 1. First they note that Plaintiff has supplied no facts to support the Cross-Motion. Opposition at 1. They also contend that Plaintiff did not timely object to their joint representation of Cowan and Hudak until January 2015, despite being aware of it since October 2014. Opposition at 2. Even then, no support was given for the objection.

 

Defendants say that Plaintiff’s allegations of conflict are difficult to understand. Opposition at 5. They contend that the Sixth Amendment cases relied upon by Plaintiff are totally inapplicable to a civil case arising out of a highway accident between two commercial vehicles. Rather, the Rules of Professional Conduct (“RPC’s”) govern, and they make clear that there is no conflict. Indeed, according to Defendants, their interests are completely aligned with each other’s and with the interests of Richards, their driver. Opposition at 6 (citing Tare v. Bank of America, Civ. No. 07-583, 2009 Lexis 2089, *9–10 (D.N.J. Jan. 13, 2009)) (denying a motion to disqualify defense counsel in a civil case when the defendants shared common goals and interests and were therefore not adverse).

 

Defendants further object to counsel being categorized as fact witnesses for trial: the facts at issue relate to a vehicular accident to which counsel were not witnesses. Opposition at 7.

 

 

III. STANDARD

“Resolution of a motion to disqualify requires the court to balance the need to maintain the highest standards of the legal profession against a client’s right to freely choose his counsel.” Steel v. General Motors Corp., 912 F.Supp. 724, 733 (D.N.J.1995). The movant bears the burden of proving that disqualification is justified. Carreno v. City of Newark, 834 F.Supp. 2d 217, 224 (D.N.J. 2011) (citing City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010); Maldonado v. New Jersey, 225 F.R.D. 120, 136–37 (D.N.J. 2004)). “Disqualification must generally be based in fact.” Id. “Surmise alone cannot support an order of disqualification.” Id.

 

“The Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court [ ] govern the conduct of the members of the bar admitted to practice in this Court.” Loc. Civ. R. 103.1(a). The Cross-Motion implicates two Rules: RPC 1.7 and RPC 3.7.

 

RPC 1.7(a)(1) permits an attorney to represent two parties in a lawsuit that are not adverse to each other. Tare v. Bank of America, et al., Civ. No. 07-583, 2009 WL 4560694, at *2 (D.N.J. Oct. 10, 2008), aff’d, 2009 WL 90326 (D.N.J. Jan. 13, 2009). It states that:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

*3 (1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

 

RPC 3.7 prohibits an attorney who is a necessary witness from acting as an advocate at trial. See Oswell v. Morgan Stanley Dean Witter & Co., Inc., Civ. No. 06-5814, 2007 WL 2446529, at *3 (D.N.J. Aug. 22, 2007)(“Oswell”). RPC 3.7(a) states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

“An attorney is ‘likely to be a necessary witness only where he has crucial information in his possession which may be divulged.”’ Oswell, 2007 WL 2446529, at *3 (quoting Garza v. McKelvey, Civ. No. 89-895, 1991 WL 3302, *3 (D.N.J. Jan. 2, 1991)). “The party seeking to disqualify an attorney must do more than simply make representations that a lawyer is a necessary witness for the attorney to be disqualified.” Id. (citing J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App.Div. 2006))(“Such a mere representation, however, does not satisfy the threshold requirements of RPC 3.7, which specifies a likelihood that a lawyer will be a necessary witness.”) “Indeed, the party seeking to disqualify must put forth evidence that establishes the likelihood that the attorney will be a necessary witness at trial and if it is unclear from the record as to whether or not the attorney’s testimony is necessary, the motion should be denied.” Id. (citing Host Marriott Corp. v. Fast Food Operators, Inc., 891 F.Supp. 1002, 1010 (D.N.J.1995)).

 

 

1. ANALYSIS

By way of the Cross-Motion, Plaintiff seeks to disqualify the Weber Firm from representing either Defendant as this case proceeds toward trial. That Plaintiff perceives an actual or potential conflict is readily apparent; that he has shown one to exist is less so.

 

A party seeking to disqualify counsel must show the disqualification is justified. Defendants say they have trouble understanding the basis for the motion; the undersigned cannot but agree. Putting aside the bare boned allegations and speculation, Plaintiff offers nothing, either by way of law or fact, to support the request to disqualify.

 

The cases cited by Plaintiff are almost exclusively criminal cases arising under the Sixth Amendment. Thus, they implicate constitutional rights, including the right to effective assistance of counsel. Plaintiff appears to confuse the gravamen of this case, indeed at one point referring to his concern that the Weber Firm represents two witnesses (Cowan and Hudak) “who may be called to testify for the prosecution at trial.” Plaintiff’s Brief at 11 (emphasis added).

 

There can be no question that the standard is different for a civil case than for a criminal case. A witness called by the prosecution to testify against a criminal defendant may indeed place counsel in a conflict position if he represents both the defendant and the adverse witness. The same reasoning does not, however, apply in a civil case. Here, Hudak and Cowan have repeatedly asserted their common interest in defending this suit. They have not filed cross-claims or third-party complaints against each other, nor has either suggested that its defense relies somehow on the culpability of the other. In short, they have done nothing but espouse a common interest in their defense.

 

*4 What’s more, Plaintiff has done nothing to establish any facts underpinning the alleged conflict. Plaintiff asserts that there is an adversarial relationship between Hudak and Cowan by virtue of their being parties to a lease agreement. As noted previously, Cowan and Hudak deny any adverse relationship, nor does the record Plaintiff presents support one. In fact, Plaintiff has presented virtually no record for this motion, only unsupported allegations and speculation. For example, Plaintiff states without elaboration or citation that a conflict arose because Cowan and Hudak were “both parties to lease a agreement and who are inextricably involved in lease agreement that placed them in a clearly adversarial position to one another and the operations of the trucking company in this case.” Plaintiff’s Brief at 9. Saying it, however, simply does not make it so. There is no basis to conclude that the lease agreement creates anything close to an adversarial relationship, let alone an unwaivable conflict.3

 

Although Plaintiff submitted a document entitled Certification of Facts, that document contains a single sentence: “Plaintiff seeks an Order disqualifying defense counsel.” [Docket Entry No. 45-5]. Plaintiff includes two exhibits with the motion.4 One exhibit is Segal’s cover letter serving Hudak’s responses to Plaintiff’s subpoena, along with the responses themselves. [Docket Entry No. 45-2]. The other is a copy of Department of Transportation regulations purportedly governing leasing agreements. [Docket Entry No. 45-3]. Based upon this record, or lack of record, Plaintiff asks the Court to disqualify Defendants’ counsel of choice.

 

There is an irony here that is not lost on the undersigned. In seeking to amend the complaint to add Hudak, Plaintiff assured the Court that there would be no prejudice or delay because Cowan and Hudak shared counsel, such that any disruption would be minimal. Plaintiff’s Brief in Support of Motion to Amend at p. 9 (“The majority of discovery is complete in this case and defendants have the benefit of being represented by the same law firm.”) [Docket Entry No. 30]. It is perplexing to say the least that Plaintiff should now seek to cause that very disruption and prejudice to Cowan in light of his prior assurances.

 

Plaintiff’s parallel argument for disqualification on the basis that Defendants’ counsel “are fact witnesses who potentially could be called as trial witnesses,” Plaintiff’s Brief at 3, is similarly devoid of support. Plaintiff fails to explain why counsel’s testimony as to “whether certain discovery exists,” might be permissible in light of the protections afforded by the attorney-client privilege and the work product doctrine, let alone sufficiently necessary to implicate the prohibition of RPC 3.7.

 

Plaintiff’s reliance on U.S v. Merlino, 349 F.3d 144, 152 (3d Cir. 2003) is misplaced. In that case, the Third Circuit affirmed the district court’s disqualification of the attorney, but its decision was on an appeal from a criminal conviction for racketeering and conspiracy. As part of its opinion, the Court of Appeals explicitly found that the district court had “engaged in the balancing required of the Sixth Amendment.” 349 F.3d at 150. The same is true of U.S. v. Cannistraro, 794 F.Supp. 1313 (D.N.J. 1992), also relied upon by Plaintiff. See 794 F.Supp. 1322 (“Indeed, the purpose of disqualification is to preclude a subsequent allegation of ineffective assistance of counsel.”) In other words, the cases are also criminal cases, where disqualification is assessed with an eye towards the Sixth Amendment, and are therefore inapposite in this civil case.

 

*5 Because Plaintiff has not set forth an adequate basis in either law or fact for disqualifying Defendants’ counsel under RPC 3.7, the Court declines to do so.

 

Finally, Defendants have sought reimbursement of the fees expended in opposing the Cross-Motion to disqualify. Were the undersigned able to infer even the remotest basis for the Cross-Motion, the conclusion on the request for fees might be otherwise. The record here, however, provides no basis in either law or fact for the Cross-Motion, leading to the conclusion that the only purpose was to harass Defendants and to further delay a resolution on the merits. Accordingly, the request for fees expended in opposing the Cross-Motion is hereby granted. Counsel for Defendants is instructed to submit an affidavit or certification detailing the time spent on its opposition within 30 days.

 

 

1. CONCLUSION

The Court finds that Plaintiff has not put forth any basis for disqualifying counsel for Defendants. The cases cited are inapposite. The factual assertions amount to nothing more than bald faced allegations and have no support whatsoever. The Cross-Motion is therefore denied; the request for reimbursement of the fees expended in opposing the Cross-Motion is granted.

 

THEREFORE, for the reasons stated above, and for good cause shown,

 

IT IS on this 11th day of December, 2015,

 

ORDERED that Plaintiff’s Cross-Motion to Disqualify Defense Counsel [Docket Entry No. 45] is hereby DENIED; and it is further

 

ORDERED that Defendants’ application for reimbursement of attorneys’ fees expended in opposing the Cross-Motion is hereby GRANTED; and it is further

 

ORDERED that Defendants shall submit an affidavit or certification evidencing the fees granted above within 30 days.

 

All Citations

Slip Copy, 2015 WL 8664279

 

 

Footnotes

1

Segal advises that Nancy Monte Carlo has left the Weber Firm. The part of the Motion pertaining to her is therefore moot.

2

Because of the parties’ familiarity with the facts, only those facts necessary for an understanding of the issues before the Court are addressed.

3

Because the undersigned finds no conflict has been shown, there is no need to address the issue of waiver. See, e.g., Tare, 2009 WL 90326, at *3 (D.N.J. Jan. 13, 2009)(“RPC 1.7(b) does not come into play unless it is first shown that there is a concurrent conflict of interest.”)

4

The exhibits are not attached to a certification or otherwise made part of the record.

Superior Court of New Jersey,

Appellate Division.

The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Plaintiff–Appellant,

v.

BEAR METAL TRANSPORT, INC., Defendant–Respondent,

and

John Costello, Defendant.

Bear Metal Transport, Inc., Third–Party Plaintiff,

v.

Park Insurance Company and the Dorfman Organization, Third–Party Defendants.

Submitted Oct. 13, 2015. | Decided Nov. 17, 2015.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L–1292–12.

Attorneys and Law Firms

Margaret Taylor Finucane, New Jersey Solicitor (The Port Authority of New York and New Jersey), attorney for appellant (Mary C. Brennan, on the brief).

Shapiro Croland Reiser Apfel & DiIorio, L.L.P., attorneys for respondent (Manuel Arroyo, on the brief).

Before Judges SABATINO and O’CONNOR.

Opinion

PER CURIAM.

 

*1 In this property damage action arising out of a single-vehicle accident that occurred on December 7, 2009, plaintiff appeals the Law Division’s order granting defendant Bear Metal Transport, Inc.1 summary judgment and dismissing plaintiff’s complaint. Plaintiff also appeals the order denying its motion for reconsideration of the order granting defendant summary judgment.2 For the reasons that follow, we reverse the denial of reconsideration, thereby requiring summary judgment to be vacated and the complaint reinstated.

 

 

I

The facts in the record relevant to our consideration of the issues on appeal are as follows. At the time of the accident, defendant was a trucking company that hauled bulk materials, including scrap metal. Located on Staten Island, defendant used the two tractor trailers it owned to travel within New York or to New Jersey to make deliveries. At the time of the accident, defendant had only three employees: its president, Nicholas Dontis; a truck driver, Costello; and a part-time mechanic, Fabian Edwards. Dontis also drove the trucks to make deliveries.

 

On the day of the accident, Costello drove one of defendant’s tractor trailers to Long Island and picked up an eighty-thousand pound load of scrap metal to deliver to Sayreville. Just after Costello emerged from the Lincoln Tunnel on the New Jersey side and was going around the 495 Helix, the trailer began to list to the right and ultimately fell against the guardrail. Some of the scrap metal in the trailer spilled out onto the Helix and over the guardrail onto a roadway below. Plaintiff, which owns the Helix and the property below, claims it sustained $143,526.92 in property damage as a result of the trailer hitting the guardrail and the scrap metal falling out onto the Helix and the road beneath it.

 

Defendant filed a motion for summary judgment, contending there was not any evidence Costello negligently operated the tractor trailer. Because in its brief in response plaintiff failed to identify any evidence in the record that Costello or defendant had been negligent, the court granted summary judgment. However, after it filed its brief and four days before oral argument, plaintiff took Dontis’s deposition. Dontis testified that the scrap metal loaded onto defendant’s trailer was not put into any container or tied-down. It is undisputed Dontis was not present when the scrap metal was loaded onto the trailer. Dontis also asserted that, as the driver of the truck, Costello’s role was to make sure the scrap metal was correctly loaded and safe to haul.3

 

During oral argument plaintiff advised the court that Dontis’s deposition had been taken and that Dontis had indicated the scrap metal had not then been tied-down in the trailer. Because the evidence was not raised in plaintiff’s brief and thus not properly before it, the court declined to consider Dontis’s deposition testimony. The court then granted defendant summary judgment on the ground there was no evidence defendant’s employee negligently operated the tractor trailer.

 

*2 Plaintiff moved for reconsideration and urged the court to consider Dontis’s deposition testimony that indicated Costello—for whom defendant was vicariously liable-failed to ensure the tractor trailer was properly loaded and secured, evidence plaintiff was precluded from presenting at the time the original motion was heard. Plaintiff also cited various federal regulations in support of its argument that both defendant and Costello had a duty to ensure that the cargo in the trailer had been loaded and secured in such a manner to prevent the scrap metal from falling out of the trailer.

 

In response, Dontis submitted a certification asserting that scrap metal is a material that lacks any fixed structure or shape and is impossible to tie down. Dontis further claimed that carrying bulk materials “with a tarp” in the kind of trailer defendant was using at the time of the accident was the “industry standard method for hauling material such as scrap metal.”

 

The trial court denied plaintiff’s motion for reconsideration for the following reasons. First, the court ruled that plaintiff should have ordered an expedited copy of Dontis’s deposition transcript and presented it to the court for its consideration during oral argument on defendant’s motion for summary judgment. Second, the court noted at the time plaintiff filed its brief in response to defendant’s motion, plaintiff knew or should have known of the subject regulations and that the cargo may not have been properly secured and, thus, should have raised such issue in its brief. Third, the court reasoned that because Dontis was not present when the scrap metal was loaded onto the trailer, he was not “really a fact witness.” We interpret this latter statement to mean the trial court found that Dontis lacked personal knowledge about how the scrap metal was loaded into and secured on the trailer; therefore, his claim the scrap metal was not tied-down was not competent evidence.

 

 

II

Our review of a trial court’s summary judgment order is de novo; an appellate court applies the same legal standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W .J.A. v. D.A., 210 N.J. 229, 237–38 (2012)). We must determine whether the moving party has demonstrated there were no genuine disputes as to material facts. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539–40 (1995). In so doing, we view the evidence in the light most favorable to the non-moving party. Id. at 523. If there were no genuine disputes as to any material fact, we must then determine whether the trial court’s application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230–31 (App.Div.), certif. denied, 189 N.J. 104 (2006). “A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.” Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

 

*3 Reconsideration of an order should be used “ ‘only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence….’ “ Cummings v. Bahr, 295 N.J. Super . 374, 384 (App.Div.1996) (quoting D’Atria v. D’Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990)). However, motions for reconsideration should also be considered in cases where new evidence, which could not have been presented at the time of initial application, is discovered. Id. at 384 (quoting D’Atria, supra, 242 N.J.Super. at 401). The decision to reconsider an order rests within the sound discretion of the motion court and reviewed under the abuse of discretion standard. See Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J.Super. 299, 310 (App.Div.) (citing Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App.Div.1987), certif. denied, 110 N .J. 196 (1988)), certif. denied, 195 N.J. 521 (2008).

 

The Federal Motor Carrier Safety Regulations (“FMCSR”), 49 C.F.R. §§ 350–399 (2015), apply to “all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce.” 49 C.F.R. § 390.3(a). A driver is prohibited from operating and a motor carrier is prohibited from allowing a driver to operate a commercial motor vehicle unless the cargo in the vehicle is properly distributed and adequately secured in the manner specified in 49 C.F.R. § 393.100. 49 C.F.R. § 392.9(a)(1).

 

To prevent cargo from falling out of a trailer or shifting within a trailer to the point of impairing a driver’s ability to maneuver such vehicle, cargo must be contained, immobilized or secured in accordance with the regulations set forth in 49 C.F.R. § 393.100 to 393.136. See 49 C.F.R. § 393.100(b) and (c). With the exception of “commodities in bulk that lack structure or fixed shape (e.g., liquids, gases, grain, liquid concrete, sand, gravel, aggregates) and are transported in a tank, hopper, box, or similar device that forms part of the structure of a commercial motor vehicle,” all cargo must be contained, immobilized or secured in accordance with these regulations. 49 C.F.R. § 393.106(a).

 

Here, just after Costello drove out of the Lincoln Tunnel, the trailer listed to the right and then fell against the guardrail, spilling scrap metal onto Helix and the roadway below, suggesting the contents were not properly secured. Moreover, Dontis testified that the scrap metal was not tied-down. While the trial court indicated and defendant argues Dontis’s testimony was not competent because he lacked personal knowledge, his testimony is admissible as a statement made by a party’s agent concerning a matter within the scope of his employment, see N.J.R.E. 803(b)(4), and admissible despite the fact Dontis’s statement was not based upon personal knowledge. See Parker v. Poole, 440 N.J.Super. 7, 18–21 (App.Div.), certif. denied, 223 N.J. 163 (2015).

 

*4 As we recently recognized in Parker, a statement made under N.J.R.E. 803(b)(1) is admissible even if the declarant lacks the requisite personal knowledge. Ibid. The reasoning employed in Parker to arrive at that conclusion is similarly applicable to a statement made by party’s agent under N.J.R.E. 803(b)(4). Thus, Dontis’s statement that the scrap metal was not tied-down in the trailer is admissible despite the fact Dontis’s statement lacked personal knowledge. See also Mahlandt v. Wild Canid Survival & Research Ctr., Inc., 588 F.2d 626, 630–31 (8th Cir.1978) (holding that the personal knowledge requirement does not apply to F.R.E. 801(d)(2), the parallel provision to our N.J.R.E. 803(b)(4)).

 

We are satisfied Dontis’s testimony that the scrap metal was not tied-down, compounded by his subsequent certification asserting it cannot be, created a genuine issue of material fact. The regulations indicate that the metal could have and should have been tied-down, because scrap metal has structure and a fixed shape. See 49 C.F.R. § 393.106(a) and (b). Although scrap metal may come in irregular shapes and sizes, each piece is a solid structure with its own shape.

 

Because “[t]he violation of a legislated standard of conduct may be regarded as evidence of negligence if the plaintiff was a member of the class for whose benefit the standard was established[,]” Alloway v. Bradlees, 157 N.J. 221, 236 (1999), there is a question of fact whether defendant and Costello were negligent in failing to ensure the scrap metal was properly immobilized and anchored. Therefore, we reverse the order denying plaintiff’s motion for reconsideration, vacate the order granting defendant summary judgment, and reinstate the complaint.

 

We recognize that the regulations setting forth how cargo is to be secured are technical. See 49 C.F.R. § 393.100 to 393.136. Defendant argues plaintiff requires but does not have an expert witness to testify about whether defendant complied with the regulations setting forth how cargo is to be restrained, and further points out the discovery period is over. However, Dontis claims the scrap metal was not tied-down at all; if that is so, then there is no need to consider whether the cargo was tied-down in accordance with regulatory standards.

 

Finally, while the trial court understandably did not consider Dontis’s deposition testimony during oral argument on defendant’s summary judgment motion because such evidence was not then properly before it, see Palombi v. Palombi, 414 N.J.Super. 274, 288 (App.Div.2010), the trial court mistakenly exercised its discretion when it failed to consider Dontis’s deposition testimony on plaintiff’s motion for reconsideration.

 

Dontis’s testimony was new evidence that emerged after plaintiff filed its brief in response to defendant’s motion for summary judgment. Plaintiff had obtained a court order to compel Dontis’s deposition and took the deposition well within the time allotted by that order. The deposition testimony qualifies as evidence that did not yet exist and could not have been properly presented at the time of initial application, see Cummings, supra, 295 N.J.Super. at 384, but should have been considered on a motion for reconsideration.

 

*5 Although the FMCSR existed and plaintiff could have alleged in its response brief to defendant’s motion that the cargo was not properly loaded and secured, such argument, unsupported by any facts, would have been purely theoretical. It was Dontis’s deposition testimony that converted this allegation from ungrounded supposition to one for which some support in the record existed.

 

After carefully considering the record and the briefs, we conclude both plaintiff’s and defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

 

The order denying reconsideration is reversed. The order granting summary judgment in favor of defendant is vacated and the complaint is reinstated.

 

All Citations

Not Reported in A.3d, 2015 WL 7199677

 

 

Footnotes

1

We shall refer to Bear Metal Transport, Inc., as defendant, even though John Costello, who we refer to as Costello, is also named as a defendant. As of the time of the motion practice, Costello had not yet been served with the complaint.

2

Third-party defendants, Park Insurance Company and the Dorfman Organization, did not participate in this appeal.

3

Neither plaintiff nor defendant obtained discovery from Costello, who quit his job with defendant the day of the accident, and had not been located.