0VERRAZANO CONSULTING SOLUTIONS, LLC v. JSMN INTERNATIONAL INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VERRAZANO CONSULTING

SOLUTIONS, LLC,

Plaintiff-Appellant,

v.

JSMN INTERNATIONAL, INC.

and MANJOJ BHATTY,

Defendants-Respondents.

________________________________________________________________

July 17, 2014

Submitted March 4, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3934-12.

Wanderpolo & Siegel, LLC, attorneys for appellant (George M. Holland, on the briefs).

Archer & Greiner, P.C., attorneys for respondents (Patrick Papalia, of counsel; Michael S. Horn, on the brief).

PER CURIAM

Plaintiff Verrazano Consulting Solutions, LLC (Verrazano) appeals from an order that dismissed its complaint for breach of contract and unjust enrichment with prejudice. We affirm.

In its complaint, Verrazano, a New York corporation, stated it is "in the business of providing consulting services and assisting in the placement of professionals with knowledge of technical and business operations relating to Information Technology for employment and consulting in the financial industry." The complaint alleged that Verrazano entered into an agreement with defendant JSMN International, Inc. (JSMN) relating to the placement of defendant Manjoj Bhatty to work as a consultant, "providing computer software related consulting services involving reconciliations and trading data" for Barclays Capital, Inc. (Barclays), a client of Verrazano's located in Jersey City. Bhatty began working at Barclays in July 2010. The complaint alleges that, pursuant to the agreement between Verrazano and JSMN,

Verrazano served as the "Prime Contractor," while JSMN served as the "Subcontractor" regarding the job placement of Mr. Bhatty at Barclays. As the Prime Contractor per Agreement Verrazano is to be the primary contact for the Project and only it shall handle invoicing, collection of fees for services, contract negotiations, and related administrative tasks with Barclays. JSMN as Subcontractor per terms of Agreement supplied Mr. Bhatty, as a contractor, just to render consulting services for the Project at Barclays.

[Emphasis added.]

The complaint also states that, pursuant to the agreement, Verrazano and JSMN would share the fees collected from Barclays for supplying Bhatty for employment at Barclays.

For the purposes of this appeal, it is unnecessary to review the facts of the contractual dispute that followed, except to state that Verrazano's complaint alleges that "JSMN must be compelled to share the compensation it received from Barclays for Mr. Bhatty's services" and "for any other consultants' services" with Verrazano.

Defendants filed a motion to dismiss the complaint in lieu of an answer. They argued that because Verrazano was not licensed in the State of New Jersey as an employment agency or as a temporary help service agency at the time the cause of action accrued, it was prohibited from initiating litigation to collect fees pursuant to N.J.S.A. 34:8-45. Verrazano argued it did not have to comply because it did not fit any of the entities regulated by the statute because it merely referred Bhatty from JSMN to Barclays; it did not place, employ, or provide his services directly.

Relying on our decision in Data Informatics v. Amerisource Partners, 338 N.J. Super. 61 (App. Div. 2001), the motion judge granted defendants' motion. In this appeal, Verrazano argues that the motion judge erred in granting defendants' motion because New Jersey law does not apply; that in the event New Jersey law does apply, it was JSMN that was subject to the requirement of N.J.S.A. 34:8-45; and that there was a material issue of fact that precluded summary judgment. None of these arguments have merit.

Because the disposition of this motion entailed consideration of items outside the pleadings, it was governed by the standard applicable to summary judgment motions. R. 4:6-2. We therefore apply the same standard as that applicable to motions brought pursuant to Rule 4:46. In reviewing an order granting summary judgment, we employ the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "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." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

In Data Informatics, supra, 338 N.J. Super. at 71, we reviewed the Act1 at issue here and observed,

[The Act] applies to "any person engaging in any of the activities regulated by th[e] [A]ct including persons whose residence or principal place of business is located outside of . . . [New Jersey]." N.J.S.A. 34:8-45(a); N.J.A.C. 13:45B-1.1(b). Employment agencies must be licensed, while temporary help service firms must be registered.

The requisite license or registration is a condition precedent to an action for fees. N.J.S.A. 34:8-45(b) states:

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.

This prohibition applies even if the person engaging in the regulated activity resides or has its principal place of business outside New Jersey. N.J.S.A. 34:8-45(a).

Verrazano argues that it was not required to comply with the licensing and registration requirements of the statute. It contends that it was JSMN, rather than Verrazano, that provided the services that triggered the requirements of the statute. It states further the agreement with JSMN had a choice of law provision that required the application of New York law and that material issues of fact exist regarding the agreement.

Among the activities regulated by the Act are those performed by an "employment agency," a "consulting firm," and a "temporary help service firm," as defined in N.J.S.A. 34:8-43. Verrazano argues it is neither a consulting firm nor temporary help service firm,2 but does not attempt to distinguish its activities from that of an employment agency as defined in the Act. Activities performed within any of the defined contexts subjects a party to the licensing and registration requirements of the Act and to the bar against litigation in N.J.S.A. 34:8-45(b).

A consulting firm is defined as

any person[3]. . . that: (1) Identifies, appraises, refers or recommends individuals to be considered for employment by the employer; and (2) Is compensated for services solely by payments from the employer . . . .

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

Verrazano maintains that it was not a consulting firm because it did not recommend Bhatty for employment, rather Bhatty remained employed by JSMN. This argument fails because Verrazano "identifie[d], appraise[d], refer[red], or recommend[ed]" Bhatty to be considered for "employment by the employer," Barclays. N.J.S.A. 34:8-43.

"Employment agency" is defined as "any person who, for a fee, charge or commission":

(1) Procures 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) Supplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General pursuant to the provisions of [N.J.S.A. 56:8-1.1]; or

. . . .

(4) Acts as a placement firm . . . .

[N.J.S.A. 34:8-43; N.J.A.C. 13:45B-1.2.]

A "fee, charge or commission" is broadly defined as:

any payment of money, or promise to pay money to a person in consideration for performance of any service for which licensure or registration is required by this act, or the excess of money received by a person furnishing employment or job seekers over what he has paid for transportation, transfer of baggage or lodging for a job seeker. "Fee, charge or commission" shall also include the difference between the amount of money received by any person who . . . furnishes job seekers . . . and the amount paid by the person to the job seekers. . . .

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

Verrazano fits the description of an employment agency because it was a "person" who "procur[ed] employment" for a "job seeker or employee[,]" Bhatty, for an "employer," Barclays, "for a fee." N.J.S.A.34:8-43. Verrazano concedes it should have been paid by Barclays for Bhatty's services.

Verrazano has presented no competent evidence to show the existence of a material issue of fact that precludes the conclusion that it was subject to the requirements of the Act. Having failed to comply with the licensing and registration requirements of the Act, it was barred from pursuing this litigation pursuant to N.J.S.A.34:8-45(b). Verrazano's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 As noted in Data Informatics, supra, 338 N.J. Super. at 63 n.1, after the repeal of the former Act with the substitution of the current Act by L. 1989, c. 331, 28, the Act no longer has a statutory title. The older cases that discuss the Act refer to it as the Private Employment Agency Act; we simply refer to it as the "Act."

2 The record is insufficient to determine whether Verrazano fits the description of a temporary help service firm.

3 A corporation is considered a "person" under the Act. N.J.S.A. 34:8-43.