ROBERT J. TRIFFIN v. CAREERSUSA, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

CAREERSUSA, INC.,

Defendant-Respondent,

and

DAVID A. HAULSEY,

Defendant.

_______________________________

2014 - Decided August 4, 2014

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-24503-12.

Robert J. Triffin, appellant, argued the cause pro se.

Jennifer Johnson argued the cause telephonically for respondent.

PER CURIAM

Plaintiff Robert J. Triffin appeals from two Law Division orders: the first granted defendant CareersUSA, Inc.'s motion to dismiss his complaint with prejudice; and the second, entered by a different Law Division judge, denied plaintiff's cross-motion to file an amended complaint and to change venue. Plaintiff argues the judges abused their discretion, or in the alternative, committed reversible error. We have considered the arguments raised on appeal, in light of the record and applicable law. We affirm.

We described plaintiff's business in an earlier opinion. "Plaintiff routinely takes assignments of the rights to dishonored checks from licensed check cashers. He then, pursuant to various provisions of the Uniform Commercial Code as adopted in this State, see generally N.J.S.A. 12A, sues the maker of the check and the drawer bank." Triffin v. Bank of Am., 391 N.J. Super. 83, 85 (App. Div. 2007). This dispute arises over a dishonored payroll check, issued on December 2, 2011 by CareersUSA1 to co-defendant David A. Haulsey (the check). Haulsey cashed the check at NVA Investment Group, LLC., d/b/a United Check Cashing (United), a New Jersey check casher, on December 6, 2011. When the check was presented for payment, it was dishonored on December 8, 2011. Apparently Haulsey requested a stop payment, explaining he lost his payroll check, but later presented the same check to be cashed at United.

On September 24, 2012, plaintiff entered into a written assignment agreement with United to purchase its rights and interests in four dishonored checks. Thereafter, he filed a small claims action against defendant and Haulsey. Plaintiff maintained he was a holder-in-due course of the negotiable instrument and alleged the check was improperly dishonored after presentment.

Plaintiff initially directed his complaint be mailed to "CareersUSA, Inc.; d/b/a CareersUSA" in Woodbury, New Jersey. An email from Carla Janoff, President of CareersUSA-Woodbury, NJ, stated the office had no connection with Haulsey or the check. An amended summons was issued to "CareersUSA, Inc.; (d/b/a) CareersUSA" in Boca Raton, Florida. Apparently, the pleadings were returned unserved because the address was incorrect. A third summons and complaint were issued to defendant through its registered agent.

Upon receipt of plaintiff's complaint, in lieu of an answer, defendant moved to dismiss, identifying a number of procedural and substantive challenges. First, defendant asserted service was improper because the filing was identified as containing six pages, but defendant averred page two was missing. A second copy of the complaint was sent and it also was missing page two. Second, defendant asserted plaintiff failed to establish jurisdiction. Defendant discovered Haulsey worked for a CareersUSA office in Pennsylvania and performed services for a Pennsylvania business. Defendant maintained it had no contractual or other business arrangement with plaintiff or United. Third, defendant noted plaintiff's assignment of the check was erroneous because the number on the payroll check did not match the number on the instrument.2 Fourth, defendant stated the pleadings failed to conform to the requirements of Rule 6:3-2(b) and (c). Finally, defendant asserted venue in Essex County was improper.

Plaintiff opposed the motion and filed a cross-motion to transfer the action to Camden County, which he claimed was the location of Haulsey's last known address. He also sought leave to amend the complaint to correct the caption errors.3

The reviewing Law Division judge granted defendant's motion. The February 8, 2013 order stated:

Motion is granted. Plaintiff did not properly serve [d]efendant with the Summons and Complaint; [p]laintiff did not comply with the New Jersey Court Rules by failing to plead or establish that defendant is subject to the jurisdiction of New Jersey's state courts and by failing to comply with the express pleading requirements; and [p]laintiff has brought this action in an improper venue.

Plaintiff's cross-motion was reviewed by a different Law Division judge, who denied it on February 22, 2013, noting the underlying case was previously dismissed.

On appeal, plaintiff seeks reversal of both orders. He does not provide great detail, but argues the judges abused their discretion or erred.

"Absent a clear abuse of discretion," we will not interfere with a trial judge's reasoned exercise of that discretion. Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App. Div.) (citations omitted), certif. denied, 216 N.J. 4 (2013). An abuse of discretion occurs when "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Rule 4:37-2 addresses the involuntary dismissal of actions. Subsection (a) states:

For failure of the plaintiff to cause a summons to issue within 15 days from the date of the Track Assignment Notice or to comply with these rules or any order of court, the court in its discretion may on defendant's motion dismiss an action or any claim against the defendant. Such a dismissal shall be without prejudice unless otherwise specified in the order.

Generally, a "[d]ismissal for failure to comply with a court rule or order shall be without prejudice unless the order specifically states that it is to be with prejudice." Zaccardi v. Becker, 88 N.J. 245, 254 (1982) (citing R. 4:37-2(a)). We recognize dismissals with prejudice must be granted sparingly. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005).

In this matter, plaintiff's proposed amended complaint corrected the caption omissions and sought transfer to Camden County, purportedly a more proper venue. The identified errors in service, however, were not cured. Moreover, there are more pronounced defects in plaintiff's complaint, which have not been remedied and further support the decision to dismiss with prejudice.

First, the assignment of the negotiable instrument is defective. The cause of action is governed by chapter three of the Uniform Commercial Code governing negotiable instruments, N.J.S.A. 12A:3-201 to -605. "Under N.J.S.A. 12A:3-305, a holder in due course is not subject to certain defenses and claims in recoupment." Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 247 (App. Div. 2007). Plaintiff's status as a holder in due course is derived from United's assignment granting him the ability to enforce the same rights held by United. See N.J.S.A. 12A:3-203 (stating rights held by transferee of instrument). However, "[i]n order for [a] plaintiff to pursue his claims on . . . the item[] and possess the status of a holder in due course, under N.J.S.A. 2A:25-1, a valid assignment of the instrument[] is required." Automatic Data Processing, supra, 394 N.J. Super. at 247. See also MacPherson v. Schwinn, 19 N.J. Super. 502, 506 (App. Div. 1952) ("[O]ne can maintain no action on a negotiable instrument, who is not the holder of the instrument at the time the action is begun.").

Here, plaintiff's assignment is defective and does not transfer rights to the check upon which plaintiff's action is based. The assignment agreement identifies a different check number than the instrument claimed to have been improperly dishonored. Plaintiff argued this was a mere "scrivener's error" correctable by testimonial evidence. However, we conclude the error in describing the check number is substantive, not clerical. Because the assignment grants plaintiff standing to file this action, it must accurately reflect the document assigned.

Plaintiff's complaint also fails to properly plead facts to identify defendant's alleged liability entitling plaintiff to relief. Plaintiff has not asserted facts to show defendant CareersUSA, Inc. in fact does business as CareersUSA or that defendant issued the check at issue. There is no evidence to suggest defendant is the drawer of the check, see N.J.S.A. 12A:3-103(a)(3) (providing a drawer includes a person who signs a check), or its maker. See Triffin v. Ameripay, LLC, 368 N.J. Super. 587, 592 (App. Div. 2004).

It is fundamental that a pleading must allege sufficient facts to apprise a party of the claims alleged. Bald conclusions and an intention to rely on discovery are inadequate. Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1985). Here, plaintiff's use of a form complaint fails to provide the factual basis relied upon to maintain defendant's liability. Janoff's email explained the Woodbury CareersUSA office was a separate corporation and a franchise operation. This alerted plaintiff to the fact he must locate Haulsey's employer. Nothing supports that defendant, the corporate headquarters of the franchise, employed Haulsey or issued the check.

Plaintiff's proposed amended complaint did not address this deficiency and it too fails to set forth a basis of liability against defendant. Rather, it merely restates the conclusion set forth in the original complaint that defendant was the drawer of the check:

1. As evidenced by an assignment agreement attached hereto as Exhibit "A", plaintiff Triffin purchased from the assignor identified in Exhibit "A", all of assignor's rights in a dishonored check, Exhibit "B", that the defendant drawer, CareersUSA, Inc.; (d/b/a) CareersUSA drew, and that drawer's co-defendant cashed with Triffin's noted assignor.

No specific averments contradicted defendant's assertion made following its independent investigation that Haulsey worked "out of a CareersUSA Pennsylvania branch," a distinct entity. Thus, plaintiff's proposed amended complaint, which does not plead facts establishing defendant was the drawer, similarly fails to set forth a basis of liability against defendant. See Ameripay, LLC, supra, 368 N.J. Super. at 592 ("If an unaccepted check is dishonored, the drawer is obligated to make payment to a person entitled to enforce the check.").

Because the defects in this pleading are pervasive including the failure to plead a cause of action against this defendant and because plaintiff has not satisfactorily cured these deficiencies, we conclude the dismissal with prejudice was warranted. In this light we cannot conclude the trial judge abused her discretion when entering the February 8, 2013 order. Consequently, we need not disturb the order determining plaintiff's motion to change venue and amend the complaint was moot because the underlying action was dismissed.

1 Defendant in this action refutes it is the maker of the check. Evidence in the record and statements made by plaintiff and defendant during argument suggest there are various CareersUSA franchises, which defendant CareersUSA, Inc. states are separate and distinct corporations, not its subsidiaries.

2 The assignment agreement records check number "92836" yet the check's number is "928236."

3 Plaintiff's pleading also challenged corporate counsel's representation of defendant. This issue was addressed by the trial court. On appeal, defendant moved to permit its representation by a corporate officer. We granted the motion citing Rule 1:21-1(c), which allows a corporate defendant to be represented in a small claims matter by its corporate officer, without benefit of local counsel. See R. 6:11. At argument, plaintiff renewed his objection orally seeking reconsideration and suggested the action belonged in the Special Civil Part, not Small Claims. The amount in controversy falls within the jurisdictional limits of the Small Claims Section of the Special Civil Part. Plaintiff's apparent attempt to avert the application of Rule 6:11 is rejected.