RONALD L. FULTON v. SUNHILLO CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD L. FULTON,

Plaintiff-Appellant/

Cross-Respondent,

v.

SUNHILLO CORPORATION,

Defendant-Respondent/

Cross-Appellant.

__________________________________

November 18, 2013

 

Submitted October 9, 2013 Decided

 

Before Judges Grall, Waugh, and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5310-09.

 

Ronald L. Fulton, appellant/cross-respondent pro se.1

 

Archer & Greiner, P.C., attorneys for respondent/cross-appellant (Peter L. Frattarelli and Douglas Diaz, on the briefs).

 

PER CURIAM

Plaintiff Ronald Fulton appeals the Law Division's order granting summary judgment dismissing his amended complaint against defendant Sunhillo Corporation. Although he stated other causes of action, Fulton's primary allegation was that Sunhillo fired him in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, because he raised concerns about its compliance with laws governing exports of electronic equipment from the United States. Sunhillo cross-appeals from the denial of its application for counsel fees and costs pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1, which allow recovery of fees and costs for frivolous litigation. We affirm the order of dismissal, but remand the frivolous litigation issue for further consideration and explanation by the motion judge.

I.

We discern the following facts and procedural history from the record on appeal, and particularly the motion judge's findings of undisputed material facts. Recognizing his obligation to search the record, Leang v. Jersey City Bd. of Educ., 399 N.J. Super. 329, 357-58 (App. Div. 2008), rev'd on other grounds, 198 N.J. 557, 568 n.2 (2009), the motion judge developed a list of undisputed facts, which he then used in his analysis of the summary judgment motion. We outline them below.

A.

Sunhillo designs and manufactures data-communications products for the aviation industry. In late 2007 it decided to seek a sales executive who could generate significant sales from new customers and markets. Sunhillo engaged the services of a recruiting firm, which performed a sales assessment of Fulton and recommended him to Sunhillo. After a series of interviews, Sunhillo hired Fulton as "Director of Business Development" in December 2007.

Fulton's compensation package included an annual salary of $115,000, 2.5% commissions on sales to new customers, an employee stock-option plan, and other benefits. The commission plan set a sales target of three million dollars for 2008.

Fulton generated no sales from new business in 2008. He acknowledged at his deposition that he was hired to be "a new business developer, so [his] assumption was [Sunhillo] wanted [him] to develop new markets." In addition, Fulton testified that he could not recall whether he brought in any new clients in 2008 or whether he completed any sales that year. Fulton was also unable to recall whether he sought any commissions for 2008. His salary was not raised after his first year at Sunhillo.

As a result of his failure to produce new business, Fulton was asked to assist with Sunhillo's marketing efforts. He travelled to China in November and December 2008 for that purpose, with specific emphasis on products referred to as "Real Time Interface & Conversion Items" (RICI).2 Fulton met with representatives of a Chinese company with which Sunhillo had previously done business. He wrote and submitted a report and proposal concerning the possibility of marketing in China.

Sunhillo resumed sales to the Chinese company in late 2008. According to Fulton, he raised concerns during late 2008 and early 2009 about whether Sunhillo was complying with federal export requirements for equipment such as RICI. Sunhillo began to explore the compliance issue. Fulton attended a meeting, which included Robert Walczak, Sunhillo's senior vice president, in late January to discuss the issue. Sunhillo designated one of its employees to be the export compliance manager. In March Sunhillo sent the compliance manager and Fulton to a seminar concerning export regulations and compliance. Sunhillo also decided to conduct an internal review of its products and export-control classifications.

According to Fulton, he recommended that Sunhillo have an expert look at its export compliance program. At his deposition, he testified that the recommendation was "driven by me and actually more so by Sylvia Pivinski," a Sunhillo employee who had conducted research on export compliance laws. She and Fulton expressed concerns about whether Sunhillo was in compliance with the law and recommended retention of a law firm to analyze the laws as they applied to Sunhillo.

Sunhillo engaged a law firm in early April to review compliance issues concerning RICI products. The law firm was also asked for an analysis of issues regarding the International Traffic and Arms Regulations (ITAR) because Fulton expressed concern that some of Sunhillo's products could be characterized as a controlled item under ITAR.

Sunhillo executives began reconsidering Fulton's employment in May 2009. At that time, he had still not generated any new business or completed any new sales, as he conceded at his deposition. He also conceded that he had not submitted any requests for commissions in 2009.

In August, Sunhillo executives had a more general discussion about staff reductions, during which they specifically considered Fulton, another employee who was a software engineer, and a consultancy agreement that was about to expire. The executives decided to lay off Fulton and the software engineer. Fulton had not generated new business, which was what he was hired to do, and they concluded that Sunhillo did not need an additional marketing employee at Fulton's salary. They took no action at that time.

At the end of August, the law firm provided advice that RICI equipment should be classified as an encryption item, which requires a license for exportation to any country other than Canada. The law firm further advised Sunhillo that some of its sales to the Chinese company did not appear to qualify for a licensure exemption and recommended voluntary disclosure of the sales to the Bureau of Industry and Security (BIS) in the United States Department of Commerce. According to Fulton, he agreed with the recommendation for disclosure.

In September, Sunhillo executives acted on their earlier decision to terminate Fulton and the software engineer. The consultant discussed at the August meeting was terminated in November. Fulton was terminated on September 21. Pivinski, whom Fulton had described as "driving" the concern about export compliance more than he did, was not terminated.

Because the encryption item that the law firm concluded required licensure had been disabled prior to sale, Sunhillo decided to seek a second opinion from another law firm. In January 2010, the second law firm sought guidance directly from BIS. At the same time, Sunhillo made a voluntary disclosure of the earlier shipments to the Chinese company. BIS notified Sunhillo in August 2010 that no export license was required for the products at issue and that there had been no violation with respect to the prior sales.

B.

Fulton filed a complaint against Sunhillo in October 2009. He alleged that he had been terminated in violation of CEPA because of his whistleblowing activity related to export licensure. He also alleged more generally "wrongful termination, discriminatory practices, breach of contract, breach of [the] implied covenant of good faith and fair dealing, fraud and breach of wage and hour laws." Amended complaints were filed in January and December 2010. Sunhillo filed answers and a cross-claim, which is not in the record. In March 2010, defense counsel sent Fulton a frivolous litigation letter, citing Rule 1:4-8 and demanding dismissal of his claims.

A period of substantial and highly-contested motion practice involving discovery ensued.3 The case was eventually scheduled for trial on November 28, 2011. In September 2011, Sunhillo filed a motion for summary judgment. Fulton filed opposition and Sunhillo replied. During oral argument on October 21, the motion judge allowed Fulton to submit a late response to Sunhillo's statement of uncontested facts. Both parties filed additional briefs in response.

2 On November 14, the judge entered an order granting Sunhillo's motion and dismissing all of Fulton's claims. The order was accompanied by a detailed written opinion setting forth the judge's reasons.

Sunhillo voluntarily dismissed its counterclaim. It also filed a motion seeking counsel fees and costs on the grounds that the litigation was frivolous, pointing out that Fulton had filed similar litigation against two prior employers and that he engaged in frivolous discovery not relevant to his claims in the litigation. On December 16, the judge placed a brief oral decision on the record denying the motion. He entered an implementing order the same day. This appeal and cross-appeal followed.

II.

Although he articulates them differently, Fulton raises two basic issues on appeal. First, he argues that the pre-trial judges erred in denying certain discovery applications, including a request for extension of discovery. Second, he contends that the motion judge erred in granting Sunhillo's motion for summary judgment.

A.

We begin our discussion with the issue of whether the trial judge erred with respect to his discovery decisions.

Our standard of review for the discovery rulings of motion judges is limited. As the Supreme Court explained in Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344 (2011),

[i]n general, we apply an abuse of discretion standard to decisions made by our trial courts relating to matters of discovery. That is, "[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." As it relates to extensions of time for discovery, appellate courts, including this Court, have likewise generally applied a deferential standard in reviewing the decisions of trial courts.

[Id. at 371 (citations omitted) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)).]

 

We have held that "[t]he right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000).

In Leitner v. Toms River Regional Schools, 392 N.J. Super. 80, 87-88 (App. Div. 2007), we listed factors that the trial judge should take into consideration in determining whether to extend discovery deadlines:

(1) the movant's reasons for the requested extension of discovery;

 

(2) the movant's diligence in earlier pursuing discovery;

 

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

 

(4) any prejudice which would inure to the individual movant if an extension is denied;

 

(5) whether granting the application would be consistent with the goals and aims of "Best Practices";

 

(6) the age of the case and whether an arbitration date or trial date has been established;

 

(7) the type and extent of discovery that remains to be completed;

 

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

 

(9) what motions have been heard and decided by the court to date.

 

Having reviewed the issues raised by Fulton in light of the governing legal standard, we conclude that they are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

As already noted, discovery in this case was contentious and resulted in considerable motion practice. The judges who oversaw discovery required both sides to provide more specific or supplemental discovery in appropriate situations. We see no indication that Sunhillo received favored treatment. For example, although Fulton's blanket request for all "financials" from Sunhillo was denied, Sunhillo was nevertheless required to provide specific records related to Fulton's allegations of wrongdoing with respect to export compliance and his termination. The judge subsequently extended discovery and again compelled Sunhillo to produce documents. We find no abuse of discretion in the judge's subsequent refusal to extend discovery further.

With respect to the denial of Fulton's later application to extend discovery so an expert could search Sunhillo's computers for additional emails, we note that the judge appropriately pressed Sunhillo for an explanation of its failure to produce 150 emails during its initial production, but was satisfied with its subsequent explanation. Having failed to comply with the first judge's directive to identify or retain such an expert to investigate Sunhillo's computer system, Fulton sought an extension of discovery for that purpose. By that time, the trial date had been established. We conclude that the second judge did not abuse his discretion in finding that there were no exceptional circumstances to justify the extension sought by Fulton. Rule 4:24-1(c) prohibits extensions of time for discovery after "a trial date has been set absent a showing of exceptional circumstances." Ponden v. Ponden, 374 N.J. Super. 1, 8 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).

B.

We now turn to the issue of whether the judge erred in granting Sunhillo's motion for summary judgment. Fulton argues that there were genuine issues of material fact precluding summary judgment and that the motion judge incorrectly determined that he had not demonstrated a causal nexus between his claimed whistleblowing activity and his termination.

i.

We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

Although there were factual disputes between the parties, the judge went through the record with considerable care to determine whether those factual differences were genuine and material. He did so in the context of Fulton's initial failure to respond to Sunhillo's statement of undisputed facts, as required by Rule 4:46-2(b),4 and his subsequent submission of responses, some of which the judge properly characterized as unexplained, vague, and without reference to the motion papers as required by the rule. As the judge observed in granting the motion, "[b]are conclusions or opinions without factual support will not defeat summary judgment."5

ii.

CEPA provides, in relevant part, that

[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following:

 

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or (2) is fraudulent or criminal . . . ; [or]

 

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; (2) is fraudulent or criminal . . . ; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

[N.J.S.A. 34:19-3.]

"The purpose of CEPA . . . . is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).

A valid CEPA claim has four requirements: (1) the employee "reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation . . . , or a clear mandate of public policy"; (2) the employee "performed a 'whistle-blowing' activity" specified in N.J.S.A. 34:19-3; (3) the employer took "an adverse employment action" against the employee; and (4) "a causal connection exists between the whistle-blowing activity and the adverse employment action." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). "CEPA does not require that the activity complained of . . . be an actual violation of a law or regulation, only that the employee 'reasonably believes' that to be the case." Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000).

Giving Fulton the required benefit of favorable inferences from the facts actually supported by the record, Rowe, supra, 209 N.J. at 38, the motion judge concluded that Fulton had presented a prima facie case with respect to the first three requirements for a CEPA claim. We agree. Although partially disputed by Sunhillo, Fulton testified at his deposition that he raised concerns about the need for BIS export licensure in late 2008. He was concerned that Sunhillo's RICI product was not properly categorized and that "[i]t had embedded encryption" containing the data conversion software protocols of most major U.S. and foreign military radars. Finally, Fulton was terminated by Sunhillo after he raised those concerns.

The judge next concluded that Fulton failed to establish a prima facie case with respect to the fourth requirement, that there be a "causal connection" between his articulation of his concerns and his termination. The judge noted that Sunhillo had "engaged in a variety of affirmative steps to investigate [Fulton]'s concerns," that other employees voicing similar concerns were not terminated, and that Fulton failed to rebut Sunhillo's claim that he was terminated because of his failure to generate new sales during 2008 and 2009. Because Fulton failed to demonstrate that his termination for failing to generate sufficient business was a pretext, the judge concluded that the evidence was so one-sided that summary judgment was appropriate.

A causal connection between the whistleblowing and the retaliation "can be satisfied by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action," including temporal proximity between the protected conduct and the adverse employment action. Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006); Estate of Roach, supra, 164 N.J. at 612; see also Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 612 (D.N.J. 2003) (stating that in determining whether plaintiff has produced prima facie evidence of causation, the typical focus is on "timing and evidence of ongoing antagonism," but all circumstances should be considered).

However, "[t]emporal proximity, standing alone, is insufficient to establish causation." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002), certif. dismissed, 177 N.J. 217 (2013). Our review of the record convinces us that Fulton has demonstrated nothing more than a temporal proximity between his termination and his concerns about regulatory compliance. He offers no other evidence that Sunhillo's reason for terminating him was based on his having raised or pursued the issue of BIS licensure. As the motion judge noted, another Sunhillo employee, Pivinski, was at least as concerned about the issue of regulatory compliance as he was, and she was not terminated.

Sunhillo pursued the issue of licensure both before and after Fulton's termination. Indeed, in January 2010, over three months after Fulton's termination and as part of its efforts to obtain a second opinion through another law firm, Sunhillo sought guidance directly from BIS and made voluntary disclosure of its unlicensed sales to the Chinese company.

In addition to finding that Fulton had not satisfied the fourth CEPA requirement for a prima facie case, the motion judge also determined that he had not demonstrated that Sunhillo's stated reason for terminating him was a pretext. Failure to demonstrate a pretext is an element of the analysis that ordinarily follows a finding that a plaintiff has not presented a prima facie case.6 El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005).

Under that analysis, if a plaintiff demonstrates a prima facie case, the defendant must show a legitimate non-discriminatory reason for its action, after which the plaintiff must be given an opportunity to show that the stated reason is pretextual. Ibid. (quoting Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)). As we held in El-Sioufi, supra, 382 N.J. Super. at 173-74:

The pretext part of the McDonnell Douglas analysis requires more of a plaintiff than simple identification of an act or event that the plaintiff believes bespeaks discrimination. As our Supreme Court has held, "[t]o prove pretext, however, a plaintiff must do more than simply show that the employer's [proffered legitimate, non-discriminatory] reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14[] (2002) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561[] (1990)). We have described this burden on plaintiff as one in which the plaintiff:

 

must submit evidence that either casts sufficient doubt upon the employer's proffered legitimate reason so that a factfinder could reasonably conclude it was fabricated, or that allows the factfinder to infer that discrimination was more likely than not the motivating or determinative cause of the termination decision. [Svarnas v. AT&T Communications, 326 N.J. Super. 59, 82[] (App. Div. 1999) (citing Fuentes[v. Perksie], 32 F.3d [759,] 762 [(3d. Cir. 1994)])].

More recently, we have reiterated that in the summary judgment context, the analysis to be undertaken is two-fold, and that a plaintiff may discharge this burden either by producing circumstantial or direct evidence that discrimination was more likely than not a motivating or determinative cause of the action or by discrediting the reason offered by the employer as the legitimate and non-discriminatory one. See DeWees v. RCN Corp., 380 N.J. Super. 511, 527-29[] (App. Div. 2005) (citing Fuentes, supra, 32 F. 3d at 764). Although the second of these methods may be accomplished by pointing out "weaknesses, implausibilities, inconsis-tencies, incoherencies or contradictions in the employer's proffered legitimate reasons," see id. at 528[] (quoting Fuentes, supra, 32 F. 3d at 765), the requirement that plaintiff do so as an alternative is one that the motion judge may address in the context of the summary judgment motion. Plaintiff's burden on the pretext part of the analysis, using either approach, however, is not insignificant.

 

"To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes v. Perskie, 32 F.3d 759, 765 (3d. Cir. 1994).

Our review of the record satisfies us that the motion judge correctly concluded that, even if Fulton had made out a complete prima facie case, he failed to demonstrate that Sunhillo's stated reason was pretextual. Fulton did not refute Sunhillo's proofs that he was hired to bring in new sales and that he simply did not do so. His failures of memory and assertions that he did not understand parts of his own compensation agreement were insufficient in the context of a summary judgment motion.7 They share the attributes of a sham affidavit, intended to create an issue of fact where none exists. See Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002).

For all of the reasons stated, we conclude that the motion judge did not err in granting Sunhillo's motion for summary judgment.

iii.

Fulton makes only cursory arguments concerning the other causes of action in his amended complaint, having focused the appeal primarily on the discovery and CEPA issues. We have reviewed those arguments and conclude that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

iv.

Consequently, we affirm the dismissal of Fulton's amended complaint for the reasons outlined above as to the CEPA claim and for the reasons stated by the motion judge in his written opinion as to the other claims.

III.

We now address the issue raised in Sunhillo's cross-appeal, which seeks reversal of the judge's order denying its motion for counsel fees and costs on the grounds that Fulton engaged in frivolous litigation within the meaning of N.J.S.A. 2A:15-59.1 and Rule 1:4-8(d).8

A claim is considered frivolous when (1) "no rational argument can be advanced in its support, [(2)] it is not supported by any credible evidence, [(3)] a reasonable person could not have expected its success, or [(4)] it is completely untenable." Belfer v. Merling, 322 N.J. Super. 124, 144 (App. Div.), certif. denied, 162 N.J. 196 (1999). False allegations of fact will not justify an award "unless they are made in bad faith, for the purpose of harassment, delay or malicious injury." McKeown-Brand, supra, 132 N.J. at 561 (internal quotation marks omitted). The litigant's actions must be evaluated from an objective perspective. Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 240 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996). Dismissal of a claim on summary judgment "does not predetermine that [a] plaintiff 'commenced, used or continued' his complaint 'in bad faith, solely for the purpose of harassment, delay or malicious injury' in violation of N.J.S.A. 2A:15-59.1(b)(1)." McKeown-Brand, supra, 132 N.J. at 563.

The statute and court rule have two complementary purposes. They are punitive, in that they seek to deter frivolous litigation. They are also compensatory, in that they provide for reimbursement of the legal expenses of the party who has been the subject of the frivolous action. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 545 (App. Div. 2009); Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009).

Nevertheless, the statute and rule are interpreted strictly to ensure that persons are not dissuaded from accessing the courts. First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007); DeBrango v. Summit Bancorp., 328 N.J. Super. 219, 226 (App. Div. 2000). They are not intended to vitiate the general rule that each litigant should bear his or her own litigation costs, even when the litigation is of marginal merit. Venner v. Allstate, 306 N.J. Super. 106, 113 (App. Div. 1997).

An honest attempt to pursue a perceived, though ill-founded, claim is not considered to be frivolous. McKeown-Brand, supra, 132 N.J. at 563. The burden of proving bad faith is on the party who seeks the fees and costs. Id. at 559. Thus, sanctions are not warranted where the party or the party's attorney had a reasonable, good faith belief in the merits of the action or defense. Wyche v. Unsatisfied Claim & Judgment Fund of N.J., 383 N.J. Super. 554, 561 (App. Div. 2006). Moreover, "'honest and creative advocacy should not be discouraged.'" Ibid. (quoting Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990)).

We review a trial judge's decisions on frivolous-litigation motions under an abuse of discretion standard. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). In Masone, we quoted Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted), for the proposition that,

[a]lthough the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment."

"[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone, supra, 382 N.J. Super. at 193.

In denying Sunhillo's application, the motion judge set out the basic procedural history and applicable law. He then concluded as follows: "[T]his Court is cognizant of the extensive motion practice by both parties. In the end[,] this Court is not persuaded that [Fulton] pursued his claims in bad faith or that he knew or should have known that the claims were without any reasonable basis in law or equity." The judge's statement of reasons does not comply with the requirements set forth in Flagg, as adopted for frivolous-litigation purposes by Masone. This case is too complicated for such a brief explanation, which does not provide an adequate basis for appellate review.

As mentioned above, the mere dismissal of a claim on summary judgment does not normally entitle the prevailing party to counsel fees and costs. There are, however, aspects of the record in this case that suggest the need for a more in-depth review and analysis than the judge's decision indicates took place. For example, Sunhillo is the third employer sued by Fulton on the basis of similar, but not entirely identical, claims.9 In addition, Fulton was unable to explain the basis of most of the non-CEPA claims, but he nevertheless pursued them. His purported lack of recollection or understanding concerning key issues, such as his sales record and the language in his commission plan regarding a 2008 sales target of 3M, could be indicative of bad faith.

A motion for frivolous-litigation expenses need not necessarily result in an all or nothing decision. Fees can be awarded as to some but not all claims, if it is feasible to separate the expenses between frivolous and non-frivolous claims. Lake Lenore Estates v. Twp. of Parsippany-Troy Hills Bd. of Educ., 312 N.J. Super. 409, 421-24 (App Div. 1998).

Consequently, we are constrained to remand the issue of Sunhillo's frivolous-litigation motion to the Law Division for further consideration and a fuller explanation of the resulting decision. The judge may, but is not required to, hold an evidentiary hearing if he considers it necessary or appropriate to do so. See Pollinger v. Loigman, 256 N.J. Super. 257, 268 (App. Div. 1992). We emphasize that our remand should not be taken to suggest a view, one way or another, as to the ultimate outcome of the remand.

IV.

In summary, we affirm the dismissal of Fulton's second amended complaint, but remand for further consideration and explanation as to the issue of Sunhillo's frivolous-litigation motion. We do not retain jurisdiction.

Affirmed in part, remanded in part.

 

1 Fulton represented himself throughout the litigation and this appeal.

2 RICI is a hardware product utilized for air transportation that performs data-format conversion.

3 We note that most of the discovery and related motions were heard by one judge, who was succeeded by another judge who heard the last few discovery motions and the substantive motions involved in this appeal.

4 Rule 4:46-2(b) provides as follows:

A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.

5 The judge cited Pressler & Verniero, Current N.J. Court Rules, Comment 2.2 on R. 4:46-2 (2012) (citing Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999); Fargas v. Gorham, 276 N.J. Super. 135 (Law Div. 1994) ("[S]elf-serving assertions alone will not create a question of material fact sufficient to defeat a summary judgment motion.")).

6 It is based on the three-step, burden-shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

7 For example, Fulton claimed a lack of recollection or lack of understanding of the language and requirements of his commission plan's provision concerning the 2008 sales target of 3M. The motion judge was correctly unpersuaded by such assertions.

8 The Supreme Court adopted Rule 1:4-8(d) following its determination that N.J.S.A. 2A:15-59.1 applied only to litigants and not their attorneys. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546 (1993); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:4-8 (2014).

9 It is not clear from the record whether the prior claims were successful or unsuccessful. Neither of them involved CEPA claims.