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PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 1 of 36 Trans ID: LCV20223921984
Yasmin Estrella, Esq. Tomas Espinosa, Esq.
Att. Id. No. 293142019 Att. Id. No. 025691985
The Law Office of Yasmin Estrella, LLC Law Office of Tomas Espinosa
8512 Kennedy Boulevard 8324 Kennedy Blvd. 2nd
North Bergen, NJ 07047 North Bergen, NJ 07047
Telephone (201) 681-2735 Telephone (201) 223-1803
Facsimile (201) 868-2292
yestrellaesq@gmail.com attespinosalawfirm@gmail.com
te@lawespinosa.com
November 10, 2022
VIA ECOURTS
The Hon. Ernest M. Caposela, J.S.C.
Passaic County Superior Court
Civil Division
77 Hamilton Street
Paterson, NJ 07505
Re: Juan Estrella v. City of Union City, et al.
Docket Number: PAS-L-00983-22
Brief in Opposition to Motion for Change of Venue and in Support of Plaintiff’s
Crossotion
Returnable 11/18/22
Dear Judge Caposela:
This office represents the plaintiff Juan Estrella in the above-mentioned action.
Please accept this letter in lieu of a formal brief in support of the plaintiff’s opposition to
the defendants City of Union City, Mayor Brian Stack both as individually and as Mayor of
Union City, Chief Nichelle Lester both as individually and as Chief of Police of the Union City
Police Department, Union City Police Department’s motion seeking to change venue to Hudson
County pursuant to R. 4:3-2(a)(2) which it is returnable on November 18, 2022.
Plaintiff is also cross-moving under R. 4:3-2(a)(2), for sanctions and attorney’s fees also
returnable on November 18, 2022.
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PRELIMINARY STATEMENT
1. Plaintiff filed a complaint in the Passaic County Superior Court on April 20, 2022.
Defendants by application removed the case to the United States District Court for the
District of New Jersey on May 19, 2022. On June 17, 2022 Plaintiff filed an amended
complaint. The case was remanded back to Passaic County on August 2, 2022. At all
times Defendants failed to file an answer or to plead by motion.
2. Defendants’ motion does not meet the standard under R. 4:3-2(a)(2), as some of the
causes of actions did arise out of Passaic County, Plaintiff domicile. Thus, Plaintiff laid
the venue properly as required under R. 4:3-2(a)(2).
3. Defendants’ waived change of venue as required by Rule 4:6-1. Defendants had to file
their motion to change venue by September 1, 2022 but they failed to do so. As a result,
the defendants waived their right to change venue per Rule 4:6-1.
4. Defendants failed to respond to plaintiff's redacted amended complaint as required per
Rule 4:9-1. As a result, plaintiff moved for default with the present court and default was
entered against all defendants on September 28, 2022.
5. Defendants waived its right to change venue after defaulting as ruled by the United States
Supreme Court.
6. For all of those reasons, the defendants motion to change venue should be denied.
PROCEDURAL HISTORY
On April 20, 2022, Plaintiff filed a complaint with jury demand for Count I, Violation of
Title VII of the Civil Rights Act of 1964; County II, Violation of the New Jersey Law Against
Discrimination, Count III, Violation of 42 U.S.C. § 1983 Violation of Equal Protection and Due
Process, Count IV Breach of Contract/Breach of Promise, Count V, Legal Misrepresentation
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/Fraud, Count VI Employment Harassment, Count VII, Intentional Infliction of Emotional
Distress and Count VIII Retaliation (Exhibit 1) See, Transaction ID: LCV20221613350.
On April 22, 2022 plaintiff served the complaint upon the defendants as per the affidavit
of service filed with the court on April 27, 2022 (LCV20221690718).
On May 19, 2022, (30) thirty days from the time the Plaintiff filed the complaint, and (1)
one day shy of defendants’ allowable time frame to remove to federal court, the defendants
moved to remove the complaint based on 42 U.S.C. 1983 only despite the fact, that New Jersey
Superior Courts have a long history of deciding 42 U.S.C. 1983 causes of action. See,
Transaction ID: LCV20221952042. The defendants did not request an extension of time to
respond to the pleading to the Plaintiff’s attorneys, nor made an application for an extension at
the United States District Court for the District of New Jersey, Newark Vicinage. Plaintiff
amended its pleading on June 17, 2022 removing both federal claims and adding additional
details. (See Exhibit 2, for purposes of confidentiality Exhibit 2 will be the redacted amended
complaint filed on July 15, 2022).
On June 22, 2022, defendants made an application to seal the filed amended complaint.
On June 23, 2022, a telephone conference was held with the Magistrate District judge in which
the parties were to stipulate to a redacted amended complaint and on a consent order to remand
back to State Court. During that conference it was agreed that Plaintiff would file an amended
redacted complaint withdrawing the identities of the officers mentioned in the complaint. It was
further agreed that since Federal court no longer had jurisdiction the case would be remanded
back to Passaic County Superior Court upon a consent order. The parties had one conference to
confer regarding a simple stipulation and redacted complaint on July 14, 2022 and by July 16,
2022, the redacted amended complaint had been filed. The parties could not agree on the
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stipulated language for the remand and Plaintiff’s attorney sent a letter to the magistrate Judge
Walder. (See, Exhibit 3) Between July 13 to July 26, 2022, unnecessarily defendants went back
and forth with a simple stipulation to remand the matter back to State Court, which whether by
consent or not was going to be remanded (See, Exhibit 4). Another tactic by the defendants to
continue to delay. The stipulation to remand was filed on July 27, 2022. Unlike what’s claimed
by defendants' attorneys, emails seized on July 26, 2022. (See, Exhibit 4) Plaintiffs did not hear
from the defendants until August 16, 2022, where defendants yet again requested another
pointless meeting. (See, Exhibit 6). There was nothing in defendants’ August 16, 2022 meeting
request via email that Plaintiff’s attorneys needed to discuss with the Defendants; attorneys. It
was simple, defendants needed to file their answer per the New Jersey State Rules and then file a
change of venue motion per the New Jersey State Rules. No meeting was required for Plaintiff’s
attorney to confer to tell the defendants’ attorney just that. It’s an unnecessary expense on
Plaintiff. The defendants still have not requested to extend time to answer to the Plaintiff or to
the Court. On August 2, 2022 the district court terminated the case and remanded the case back
to Passaic County Superior Court. The final order remanding the case back to Passaic County
Superior Court was signed on August 05, 2022 by Honorable Judge Thomas F. Brogan. Default
was requested by Plaintiff’s on September 28, 2022 for failure to respond. See, Transaction ID:
LC20223087375. On September 29, 2022 default was entered on defendants, See, Transaction
ID: LCV20223499142. On September 30, 2022, the defendants’ attorneys emailed to plaintiff’s
counsels, Ms. Estrella and Tomas Espinosa asked for a consent order to vacate default that
defendants will file their answer or motion to dismiss by October 21, 2022. In that email Ms.
Bove, stated, “ that they had not filed a response because they were never notified by the court of
the remand.” What defendants' attorneys don’t understand is that the clock to answer or plead to
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a pleading does not start counting upon remand- per both State and Federal rules, it begins to run
at the time service was effected. (See, Exhibit 6).
On October 3, 2022, a consent order was entered and agreed upon by the parties to vacate
default and allow the defendants to answer or to file a motion to dismiss but no further motions
have been consented to that would have been time barred per the New Jersey Rules, a letter was
sent to the Court and defendants regarding this. (See, Exhibit 8) On October 21, 2022, the
defendants moved to dismiss the complaint.
On October 31, 2022, the defendants moved to change venue to Hudson County.
STATEMENT OF FACTS
Plaintiff, is a Passaic County resident since 2018, he has been a Police Officer serving
Hudson County for the past (22) Twenty-two years. Prior to becoming a police officer for the
Union City Police Department, Plaintiff Officer Estrella worked for the Hudson County
Corrections Facility for (6) Six years. For the past (16) Sixteen years, Plaintiff Officer Estrella
has served in the capacity of a Police Officer for the Union City Police Department. Plaintiff
Officer Estrella, has always received satisfactory performance evaluations and is often involved
in training newly hired police officers. On or about May 2018, Officer Estrella ranked number
(13) Thirteen on the promotional list. Since then, Plaintiff Officer Estrella has been subjected to
employment harassment, discrimination, a number of contractual and promise breaches,
misrepresentations, fraud, and retaliation with the purpose of causing intentional infliction of
emotional distress. Although some of the discriminatory conduct arose out of Hudson County,
some also arose out of Passaic County. Defendants have subjected Plaintiff to disparate treatment
in his well-earned promotion and other harassing actions, has subjected him to bogus disciplinary
actions while bypassing serious misconduct of other police officers and promoting them.
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Plaintiff has not been part of the scheme of the pay to play association defendant, Mayor Brian P.
Stack has within the Union City- thus, plaintiff was subjected to further discrimination by the
defendants. As a result, of defendants’ violation of the various New Jersey Rules, Statutes, and
Constitution, Plaintiff has brought this cause of action.
LEGAL STANDARD
Rule 4:3-2(a) states the following:
(a) Where Laid. Venue shall be laid by the plaintiff in Superior Court actions as follows: (1)
actions affecting title to real property or a possessory or other interest therein, or for
damages thereto, or appeals from assessments for improvements, in the county in which
any affected property is situate; (2) actions not affecting real property which are brought
by or against municipal corporations, counties, public agencies or officials, in the county
in which the cause of action arose; (3) except as otherwise provided by R. 4:44A-1
(structured settlements), R. 4:53-2 (receivership actions), R. 4:60-2 (attachments), R. 5:2-
1 (family actions), R. 4:83-4 (probate actions), and R. 6:1-3 (Special Civil Part actions),
the venue in all other actions in the Superior Court shall be laid in the county in which the
cause of action arose, or in which any party to the action resides at the time of its
commencement, or in which the summons was served on a nonresident defendant; and
(4) actions on and objections to certificates of debt for motor vehicle surcharges that have
been docketed as judgments by the Superior Court Clerk pursuant to N.J.S.A. 17:29A-35
shall be brought in the county of residence of the judgment debtor. N.J. Ct. R. R. 4:3-2
Rule 4:3-3(b) states the following:
(b) Time; Form of Order; Filing. A motion for a change of venue shall be made not later
than 10 days after the expiration of the time prescribed by R. 4:6-1 for the service of the
last permissible responsive pleading, or, if the action is brought pursuant to R. 4:67
(summary actions), on or before the return date. If not so made, objections to venue shall
be deemed waived except that if the moving party relies on R. 4:3-3(a)(2) the motion may
be made at any time before trial. The order changing venue shall not be incorporated in
any other order and shall be filed in triplicate. If a mediator has already been appointed,
the party moving to change venue shall serve a copy of the motion on that person prior to
the mediation date. The moving party also shall promptly serve on the mediator a copy of
the order entered on the motion. N.J. Ct. R. R. 4:3-3
Rule 4:6-1 states the following:
(a) Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8-
1(b) (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(i)
(governmental answer in foreclosure actions), the defendant shall serve an answer,
including therein any counterclaim, within 35 days after service of the summons and
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complaint on that defendant. If service is made as provided by court order, pursuant to R.
4:4-4(b)(3), the time for service of the answer may be specified therein. Service of the
answer shall be complete as provided by R. 1:5-4. A party served with a pleading stating
a counterclaim or crossclaim against that party shall serve an answer thereto within 35
days after the service upon that party. A reply to an answer, where permitted, shall be
served within 20 days after service of the answer. N.J. Ct. R. R. 4:6-1
Rule 4:9-1 states the following:
A party may amend any pleading as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is to be
served, and the action has not been placed upon the trial calendar, at any time within 90
days after it is served. Thereafter a party may amend a pleading only by written consent
of the adverse party or by leave of court which shall be freely given in the interest of
justice. A motion for leave to amend shall have annexed thereto a copy of the proposed
amended pleading. A party shall plead in response to an amended pleading within the
time remaining for response to the original pleading or within 20 days after service of the
amended pleading, whichever period is longer, unless the court otherwise orders.
N.J. Ct. R. R. 4:9-1
Rule 4:6-1 states the following:
(c ) Time; Extension by Consent. The time for service of a responsive pleading may be
enlarged for a period not exceeding 60 days by the written consent of the parties, which
shall be filed with the responsive pleading within said 60-day period. Further
enlargements shall be allowed only on notice by court order, on good cause shown
therefor. N.J. Ct. R. R. 4:6-1
Federal Rules of Civil Procedure Rule 12 states the following:
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a federal statute, the time
for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a
waiver was sent, or within 90 days after it was sent to the defendant outside any judicial
district of the United States. Fed. R. Civ. P. 12.
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LEGAL ARGUMENT
A. PLAINTIFF MET THE STANDARD UNDER RULE 4:3-2(a) AND LAID VENUE
PROPER, THUS FOR THAT REASON DEFENDANTS’ MOTION SHOULD BE
DENIED.
First and foremost, the Courts have held that, [th]e rule states that “[v]enue shall be laid
by the plaintiff.” It does not provide that in all actions involving a public body or official the case
must be tried in the county in which the cause of action arose. Doyley v. Schroeter, 191 N.J.
Super. 120, 124, 465 A.2d 583, 585 (Law. Div. 1983).
When a question of venue is at question, the Courts have noted that:
‘A cause of action is said to accrue to any person when that person first comes to a right
to bring an action.’ Bouvier's Law Dictionary (3d ed. 1914).
‘No entirely satisfactory definition of a cause of action has as yet been enunciated but a
generally accepted definition is that a cause of action is ‘the fact or facts which establish or give
rise to a right of action, the existence of which affords a party a right to judicial relief.’ 1
Am.Jur., Actions, p. 404. Levey v. Newark Beth Israel Hospital, 17 N.J.Super. 290, 85 A.2d
827, 829 (Cty.Ct.1952).
When considering a venue question, the Courts generally considers where the causes of
action arose and it has been noted that: “The cause of action arises, for purposes of venue, in
the county where the acts or omissions constituting the basis of the action
occurred.1 A cause of action may be said to accrue, within the meaning of a statute fixing
the venue of actions, when it comes into existence as an enforceable claim, that is, when the right
to sue becomes vested.” 77 Am. Jur. 2d Venue § 36
In determining venue in this case, the Courts should consider all aspects involved. It is
indisputable that Plaintiff is a resident of Passaic County and was a resident of Passaic County
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when all of the causes of action arose. Therefore, it is indisputable that Passaic County has
personal jurisdiction over Plaintiff. Further, it is well known that home jurisdictions do have
the greatest interest to protect their citizens. Laufer v. U.S. Life Ins. Co. in City of New York,
No. BER-L-9082-04, 2005 WL 1869211, at *7 (N.J. Super. Ct. Law Div. Aug. 8,
2005), aff'd, 385 N.J. Super. 172, 896 A.2d 1101 (App. Div. 2006) Thus, Passaic County does
have interest as the Plaintiff in this case is a resident of Passaic County.
Venue has been described, not a jurisdictional issue, but rather, as one regarding
procedure, implicating both the fair and efficient administration of justice and the convenience of
the parties. (See Stahl v. Stahl, No.A-2855-19 at * 2 (App. Div. 06/11/2021)
Plaintiff resides in Passaic County and in which some of the causes of action arose,
therefore elected to file his claim at the present court, since as per the rules.
The defendants have failed to demonstrate a good cause for the change of venue, and
plaintiff further states that it is convenient to him to have the case to be tried in Passaic County,
since, the request to transfer the case to the Hudson County, where the defendants have political
connections, would be unfair and not partial to the plaintiff’s lawsuit. One of the defendants
Brian P. Stack is an American Democratic Party politician who serves in the New Jersey Senate,
he represents the 33rd Legislative District and serves as Chairman of the Senate Judiciary
Committee.
Mr. Stack a a Chairman of the Senate Judiciary Committee votes in appointing state
judges, plaintiff feels that there would not be impartiality in reviewing and adjudicating his case
in Hudson County, therefore, plaintiff has laid his case in Passaic County in order to avoid any
conflict of interest and/or favoritism and bias by the court on the defendants, plaintiff’s, his
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witnesses and in the interest of justice, additionally, the venue is laid in accordance with Rule
4:3-2(a).
Further Rule 4:3-2(a)(2) provides that:
“Venue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions
affecting title to real property or a possessory or other interest therein, or for damages thereto, or
appeals from assessments for improvements, in the county in which any affected property is
situate; (2) actions not affecting real property which are brought by or against municipal
corporations, counties, public agencies or officials, in the county in which the cause of action
arose.”
Defendants attempt to assert that the only county in which all of the causes of action
arose in this action are exclusively in Hudson County and that therefore, venue must be
transferred to Hudson County. Defendants' argument fails in its entirety, some of the causes of
actions did arise out of Hudson County, but some of the causes of actions arose out of Passaic
County as well. For example, per the Plaintiff’s certification some of the breach of promise
allegations took place while Plaintiff was in Passaic County in his residence. First, when
defendant Nichelle Luster made her misrepresentation via text message, plaintiff was in his
residence in Passaic County. This intentional misrepresentation by Nichelle Luster was intent to
harass, and disturb Plaintiff peace while Plaintiff was in his domicile. Further, the defendant,
Mayor Brian P. Stack called a third party, witness Santiago Estrella- the father of the plaintiff to
schedule an appointment to meet with Plaintiff Officer Estrella to discuss his promotion. (See,
Certification from Santiago Estrella). When the witness contacted plaintiff Officer Estrella, he
was at his home in Passaic County. Officer Estrella was once again disturbed by the defendants
at the anticipation of the conversation with Mayor Stack regarding his promotion. At that point,
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when Mayor Stack called the witness to set up an appointment, he did so with the intent to make
the misrepresentation, the promise to Plaintiff made on September 27, 2022, in which he did.
The intent of the misrepresentation took place while Plaintiff was in Passaic County. On
February 3, 2022, defendant Brian P. Stack breached its promise but this time by calling plaintiff
while plaintiff -once again causing emotional distress on the Plaintiff by his breach. It is
unknown where the defendants were at the times of these causes of action. Not satisfied with
carrying defendants harassing nature while Plaintiff was at his domicile, upon the filing of
Plaintiff’s first complaint, and effective service upon the defendants on April 22, 2022,
defendants once again harassed Plaintiff by retaliating and calling him while Plaintiff was at his
home because of what appeared to be a system malfunction or human error, Plaintiff resolved the
error, but defendants’ in effort to retaliate and harass Plaintiff called Plaintiff yet once again and
demanded Plaintiff to report to work and reprimanded him. Once again, the cause of action arose
while Plaintiff was in Passaic County. This is not to mention that often times when defendant
Chief Luster initiated her harassment actions against Plaintiff by subjecting the Plaintiff to bogus
investigations, internal affairs she would email Plaintiff regarding the investigation while
Plaintiff was off and, in his domicile, where he is to suppose to be at peace, he’d receive emails
informing him of yet another unfounded, unsupported, non-investigated allegation and subjecting
Plaintiff to yet another investigation which did not meet the standard per the Attorney General
Policy and Procedures but this was done in an attempt to harass. (See, the Plaintiff’s certification
for the statements noted above). It is clear that actions did arise in this matter while Plaintiff was
in his domicile in Passaic County, which makes Passaic County proper venue.
Defendants once again made an incorrect inference as to all of the causes of action. Thus,
because Rule 4:3-2(a)2 references where the cause of action arose and given that the causes of
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actions arose in two counties, Plaintiff’s choice to lay venue where he domiciles was proper and
confers with Rule 4:3-2(a)2.
Courts generally defer to the plaintiff's choice of venue in the event alternative venues
exist. See, e.g., Civic S. Factors Corp., supra, 65 N.J. at 333. Flatley v. Mountain Creek Water
Park, No. BER-L-6864-14, 2015 WL 374976, at *4 (N.J.Super.L. Jan. 23, 2015);see also
Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583 (Law Div. 1983) ("R. 4:3-2 is
specific and unambiguous in providing that it is the plaintiff who makes the determination as to
where venue shall be when alternatives exist") also see New Jersey Courts generally defer to the
plaintiff's choice of venue in the event alternative venues exist. See Civic S. Factors Corp. v.
Bonat, 65 N.J. 329, 333, 322 A.2d 436 (1974) ("a plaintiff's choice of forum ordinarily will not
be disturbed except upon a clear showing of real hardship or for some other compelling reason");
see also Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583 (Law Div. 1983) ("R. 4:3-
2 is specific and unambiguous in providing that it is the plaintiff who makes the determination as
to where the venue shall be when alternatives exist").Gafner v. Bergen Fam. Foot Care, LLC,
2022 N.J. Super. Unpub. LEXIS 676.
‘The question of the proper place of trial is essentially administrative in character * * *.
The court should be free to decide according to the circumstances of the case with a view to
giving each party a reasonably fair opportunity to present his proof. Intricate metaphysical
reasoning as to the nature of actions and dogma as to jurisdiction should not be allowed to
obscure this simple practical issue. * * *’ 44 Harv.L.Rev. 41 (1930).
Further, in determining rules and regulations it is always important to analyze the intent
the legislature sought to achieve in establishing the Rule. The intent behind Rule 4:3-2(a)2 has
been quoted in a number of cases.
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The Courts have said, “R. 4:3-2 venue in every case could be laid in any county. Our
rules of venue had their genesis in the English common law where jurors were presumed to have
knowledge of both the parties and the facts of the case. In theory they were witnesses summoned
to decide the controversy and so a plaintiff was limited in his venue to the locality where the
jurors resided and the activities occurred which gave rise to the suit.” 77 Am.Jur.2d, Venue § 2
at 833; Note, 16 Rut.L.Rev. 784 (1962). Doyley v. Schroeter, 191 N.J. Super. 120, 123–24, 465
A.2d 583, 584 (Law. Div. 1983)
The Courts have further stated, [t]he requirement of R.4:3-2(a)(2) has a sound basis in
logic. Often the cause of action in a case involving a public body or official arises in the county
where the governmental unit is located. Ordinarily the witnesses, documents,
public officials and counsel are there.
[T]he public interest would not be well served if the duties of public officials were
disrupted or left unattended while they were forced to defend actions brought against them in
distant counties which have little or no connection with the conduct that forms the basis of the
suit. [Sinderbrand v. Schuster, 170 N.J.Super. 506, 511, 406 A.2d 1344 (Law Div.1979) ]
Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583, 585 (Law. Div. 1983)
Here, it is evident that the legislature's intent does not apply to the case at hand. First, it is
important to note that the cases and statutes were enacted by the legislature in the pre-computer,
pre-technology era. Thus, many of the resources available today were not available then. Second,
case law regarding intent and the defendant’s themselves talks about documents, the intent of the
legislature regarding documents by public officials, the legislature wanted to alleviate the burden
of document production and/or document presentation, having to carry tons of documents
between the counties as was the case during the era these cases were decided. See, generally,
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Hesselbrock v. Burlington Cnty., 111 N.J.L. 177, 180, 168 A. 45, 46 (Sup. Ct. 1933). However,
in today’s day in age, this is no longer the case, the rules that applied to document production, to
filing in the Courts, have changed. Almost everything is done electronically whether venue is in
defendants’ county or where Plaintiff laid venue- defendants would not have the worrisome of
carrying tons and tons of documents or mailing tons of documents in document production as a
simple email will do, further, the same applies to presenting documents in Court- often times a
separate drive will do, Courts generally have devices for attorneys to present documents
electronically. Further the case law history regarding intent also refers to witnesses, the
defendants also raise the issue about witnesses, the intent to not inconvenience the witnesses
does not apply here as well, most of all the witnesses do not reside in Hudson County and in fact,
most of the witnesses would benefit from venue laid in Passaic County. For example, Plaintiff
himself lives in Passaic County, Officer listed as Officer A on the RAC (See, Exhibit 2) lives in
Ridgefield Park a town in Bergen County, Officer B lives in Hasbrouck Heights a town in
Bergen County, Officer J lives in Mahwah a town in Bergen County, Officer F lives in New
Milford a town in Bergen County, Officer E lives in Wallington a town in Bergen County,
Officer I lives in Bogota a town in Bergen County, One of the Officer who was promoted in
Officer Estrella’s place lives in New Milford a town in Bergen County, Witness Santiago
Estrella lives in Hudson County but prefers venue to be laid in Passaic County given the traffic
and lack of parking in Hudson County Superior Court (See, Certification of Santiago Estrella). In
fact, defendant Nichelle Luster herself does not reside in Hudson County- despite the
misrepresentation made by the defendant's attorney to the Court that Former Chief Luster is an
employee in Hudson County. Chief Luster is retired and resides in Middlesex County, a
difference of 5 to 10 minutes between coming to Hudson County or Passaic County. Next,
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defendants attempt to argue that Passaic County inconveniences the witnesses because they work
in Hudson County, this is absurd and irrational and has not been recognized by any Court. Where
a witness is employed is irrelevant to the witness’s convenience, what is considered is the
witness's residence. “The convenience of witnesses as bearing on a change of venue for forum
non conveniens may be considered in connection with the location of witnesses.” 92A C.J.S.
Venue § 195
In the case of Hesselbrock v. Burlington County, a 1933 case, the defendant, County of
Burlington, moved from a change of venue from Essex County where the suit is laid to
Burlington County, where the accident occurred and defendants reside. Here, the Court instead
changed the venue to Mercer County. “The trial seat of Mercer County, Trenton, is but a
comparatively short distance from the scene of the accident, and a very short distance from Mt.
Holly, where the necessary records are kept and where most of the
petitioner's witnesses reside.” Hesselbrock v. Burlington Cnty., 111 N.J.L. 177, 180, 168 A. 45,
46 (Sup. Ct. 1933)
Thus, it’s clear that when given consideration of convenience it’s not where the witnesses
are employed but rather where they reside. It would be illogical for the Court to determine a
witness’s convenience on the bases of employment as the witness would have to take time off of
work to go to Court. Thus, witnesses’ convenience rests on residence.
Further, in reality, almost all witnesses reside outside of Hudson County, all but
approximately two of the witnesses reside in Hudson County, one of the defendants being Mayor
Stack. Most of the witnesses are residents of Bergen County, the next-door neighbor of Passaic
County, it is undisputed that Bergen County residents are closer to Passaic Superior Court then
Hudson County is. Thus, clearly Passaic County would be more convenient to these witnesses.
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Further, it should be noted that the difference from defendant, Mayor Stack’s home between
Passaic County Superior Court and Hudson County Superior Court it’s only a difference of 10
miles, a difference of at most 15 minutes and with the traffic and the parking issues known for
Hudson County Superior Court- even the defendant Mayor Brian Stack himself might benefit
from venue at Passaic County. (See, Certification of Santiago Estrella accompanying this
opposition) Further, the defendant, Mayor Stack is a Senator in the State of New Jersey, thus,
Passaic County is not a distant place to him. Thus, the burden that the legislature attempted to
alleviate for public officials under Rule 4:3-2(a) does not apply to the case at hand and
importantly for the Court’s consideration is that almost all witnesses would benefit from venue in
Passaic County. For those reasons, the intent behind Rule, 4:3-2(a) does not apply to the case at
hand because Passaic County is more convenient to the witnesses they would benefit from venue
at Passaic County, Passaic County is close in proximity to defendant, Mayor Stack and document
production is done almost at all times electronically- Thus, the intent behind Rule, 4:3-2(a) does
not apply here. Furthermore, “The burden of demonstrating good cause for or against a change of
venue depends on the motion. "[I]f the motion is made pursuant to R. 4:3-3(a)(2) or (3), the
movant has the burden of demonstrating good cause for the change." See Pressler & Verniero,
N.J. Court Rules, cmt. on R. 4:3-3 (2021). In addition there are more bases for the non removal
to Hudson county because in Hudson county there are facts of actual or more likely problems of
lack of impartiality and publicity than Passaic that has none ( See counsels certifications and the
certifications accompanying this letter brief.)
Lastly, Defendants’ allegation that “defendants’ ability to adequately defend this matter is
prejudiced, and negatively impacted by its being handled in a county other than where the matter
arose and where its’ witnesses are located, is a lie and a blatant misrepresentation to the Court.
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First, defendants removed the matter to the New Jersey District Court located in Newark, Essex
County which is approximately the same distance to the defendants from Passaic County to
Essex County. The District Court was not where any of the courses of action arose yet they
removed on the grounds as they claim- that Plaintiff had several counts that Federal Court has
exclusive jurisdiction. Another lie from the defendants, first the complaint only had two federal
claims, one of those claims which would have been dismissed by either Court Federal and/or
State, and a 42 U.S.C. 1983 in which both federal and State Court have ruled that on for purposes
of 42 U.S.C. 1983 the state has concurrent jurisdiction. (See, Exhibit 1, Complaint filed 4/20/22)
Thus, 42 U.S.C. 1983 could have very well been adjudicated in State Court. The defendants did
not consider that the causes of actions could only be adjudicated where according to them all of
the causes of actions arose which according them was Hudson County, when they removed to a
Federal Court where none of the causes of action arose, they were okay with litigating the matter
in Federal Court a Court which does not sit in Hudson County and to wish none of the causes of
actions arose nor did the defendants consider where its witnesses were located then. A court
sitting in Essex County would clearly inconvenience the witnesses. Thus, the claim that
defendants would be prejudiced if not litigated in Hudson County is a lie and an obvious
misrepresentation to the Court. Second, the misrepresentation by the defendants claiming that
Hudson County is where the witnesses are located, when in fact most of the witnesses named on
the RAC would benefit from the venue being at Passaic County.
Defendants’ only reason for this change of venue is to explode Plaintiff in attorney fees,
to annoy Plaintiff, and to cause further delays of which they have already caused- months in
delay.
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Despite the movants claims, Defendants have not established that the convenience of the
parties or the interests of justice mandate the removal of this action to Hudson County.
While Defendants cite to Doyley v. Schroeter, 191 N.J. Super. 120, 465 A.2d 583 (Law Div.
1983), in support of their application to change venue, the Court in fact denied a change
of venue in Doyley since plaintiffs had properly filed in the correct venue the action in
the County of their residence and the defendants failed to show how the interests of justice would
be implicated.
There is an insufficient basis to disturb venue that is, in all respects, pursuant to Court
Rules, properly laid. For the foregoing reasons, it is respectfully requested that Defendants'
motion to change venue from PASSAIC COUNTY where it is properly laid, to the venue of
HUDSON COUNTY, be denied.
B. EVEN IF THE COURT DECIDED THAT VENUE WAS LAID IMPROPER, THE
DEFENDANTS WAIVED VENUE, THUS THIS COURT SHOULD DENY THEIR
MOTION.
The facts are clear, defendants had until May 27, 2022 per NJ State Rules to respond to
Plaintiff initial complaint per NJ Court rules.
(a) Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8-1(b)
(third-party joinder), R. 4:9-1 (answer to amended complaint), and R. 4:64-1(i) (governmental
answer in foreclosure actions), the defendant shall serve an answer, including therein any
counterclaim, within 35 days after service of the summons and complaint on that defendant. N.J.
Ct. R. R. 4:6-1
Instead, the defendants’ attempted to do a tactical move and removed it to New Jersey
District Court which is located in Newark, Essex County. The tactical move was based on
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avoiding responding to the pleading and because they have an associate, which was a direct
associate clerk for many of the New Jersey District Court judges who was specifically assigned
to this case and who mysteriously disappeared once the case was remanded back to State Court.
The removal was not based on several federal claims arising exclusively under federal law. The
filed and served April 20, 2022 complaint contained two counts that involved federal matters.
(See, Exhibit 1) One of which would have been dismissed in Federal Court or State Court as a
matter of law because Plaintiff did not file a charge of discrimination with EEOC. [A]
Title VII plaintiff is required to file a charge of discrimination with the EEOC before she may
proceed in federal court. Vonderohe v. B & S of Fort Wayne Inc., 36 F. Supp. 2d 1079, 1081
(N.D. Ind. 1999)
This was never done, and never alleged in the complaint, this count would have been
dismissed by any New Jersey State Court and any District Court.
In the naked eye, the April 20, 2022 complaint only had one federal count 42 U.S.C.
1983, in which NJ Courts have concurrent jurisdiction.
“[S]tate courts have concurrent jurisdiction with federal courts over civil rights actions.”
Endress v. Brookdale Cmty. Coll., 144 N.J. Super. 109, 132, 364 A.2d 1080, 1092 (App. Div.
1976). The District Court never truly had jurisdiction, this was a tactic used by the defendants to
inconvenience the Plaintiff and cause the plaintiff unnecessary expenses, delays, and avoid
responding timely.
Nonetheless, defendants were successful in removing the matter to the New Jersey
District Court. At all times defendants failed to request an extension to file their answer or first
pleading. Once this matter was removed, the federal rules applied. “In the period
between removal of a case to federal court and the grant of a motion to remand to state court,
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the federal court maintains sole jurisdiction over the litigation.” Jatczyszyn v. Marcal Paper
Mills, Inc., 422 N.J. Super. 123, 132, 27 A.3d 213, 219 (App. Div. 2011)
Thus, defendants had to comply with Federal Rule 12(a)(i), but failed too.
Federal rule 12(a)(i) states:
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a federal statute, the time for
serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver
was sent, or within 90 days after it was sent to the defendant outside any judicial district of the
United States.
Under Federal Rule 12(a)(i), the defendants had 21 days after being served to respond to
the pleading, giving it a conservative approach; defendants at the time of removal to the district
court were already in default. Giving the defendants a liberal approach, defendants had 21 days
from the time of removal to file its answer or first pleading which started to run on May 19,
2022. Twenty-one days from May 19, 2022 is June 8, 2022. Defendants failed to answer or plead
or request a time extension to answer. Plaintiff did not pursue default or any other action against
the defendants in an attempt to create a workable relationship and hopefully reach a resolution
convenient to all parties. Even though plaintiff’s attorney discussed with the defendants’ attorney
a possible resolution of the case without litigating which was never rejected by the defendants
prior to any motion and litigation be involved, they simply ignored a proposed and reasonable
settlement propounded by the plaintiff’s attorneys. Thus, whether you apply the NJ Rule 4:6-1
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allowing the defendants’ 35 days to file their first answer or pleading, or you apply federal rule
12(a)(i) the defendants were still in default.
On June 17, 2022, Plaintiff amended his pleading and removed all federal counts or
federal questions that would keep the case in the District Court. Defendants’ attorneys did not
like the language contained in the amended complaint, despite Plaintiff’s attorneys explaining
that the amended complaint did not include any confidential information since most of the
allegations in plaintiff’s complaint had been published, being open record to the public, thus
destroying their alleged confidentiality. Nonetheless, defendants put great emphasis in
immediately doing a motion to seal, yet, defendants once again were silent on when their intent
to answer or plead on the amended complaint. Per the Federal Rules, defendants had until July 8,
2022 to file their answer or plead. Once again defendants were in default for failure to respond.
Plaintiff once again did not notify the Court or reach Plaintiff’s attorney for an extension. Even
if the case was to be remanded federal rules controlled up until remand was final and defendants’
attorneys failed to take any action as to answer. [U]nder Fed.R.Civ.P. 81(c)(1),
the federal rules of procedure, including all rules pertaining to discovery, apply to civil actions
once they are removed from a state court. Jatczyszyn v. Marcal Paper Mills, Inc., 422 N.J.
Super. 123, 133, 27 A.3d 213, 219 (App. Div. 2011) In the period between removal of
a case to federal court and the grant of a motion to remand to state court, the federal court
maintains sole jurisdiction over the litigation. Id.
The fact is that per the Federal Rules, once the case was remanded back to State Court,
Plaintiff’s file should have included defendants first pleading, yet, it did not. Nonetheless,
Plaintiff still waited the 35 days required under Rule 4:6-1 to enter default despite the fact that
Plaintiff only had to wait 20 days under Rule 4:9-1. The Court should note that the default was
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entered over (8) eight months since Plaintiff first filed its first complaint and (4) four months
after filing its first amended complaint. Defendants cannot allege that the filed RAC would
govern Plaintiff’s last pleading as it was only a redaction and not an amendment. Even if the
defendants would have done what they were required to do, which is to request for an extension
to answer, defendants would have still been in default regardless of which rule the Court applied,
federal or state.
NJ State Rule 4:6-1(c ) states: The time for service of a responsive pleading may be
enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be
filed with the responsive pleading within said 60-day period. Further enlargements shall be
allowed only on notice by court order, on good cause shown therefore. N.J. Ct. R. R. 4:6-1.
Federal Rule 12(a)(ii) states: if it has timely waived service under Rule 4(d), within 60
days after the request for a waiver was sent, or within 90 days after it was sent to the defendant
outside any judicial district of the United States.
Both State and Federal rules only allow for a 60-day time period and defendants are well
past that. Regardless, this is not applicable to the defendants as they have not requested a time
extension.
The defendants attempt to place fault on their adversaries and on the Court, on everyone
but not on themselves. The Court is under no obligation to give defendants’ legal advice as to
how and when defendants’ attorneys must check their cases and review their dockets, or let them
know when they have to file their clients’ answer, appearance or motion to dismiss. Plaintiff’s
attorneys followed due diligence and checked the docket for updates and followed due course.
The Court was under no obligation to advise Plaintiff’s attorneys to check the docket for the
order; th
Preview
PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 1 of 36 Trans ID: LCV20223921984 Yasmin Estrella, Esq. Tomas Espinosa, Esq. Att. Id. No. 293142019 Att. Id. No. 025691985 The Law Office of Yasmin Estrella, LLC Law Office of Tomas Espinosa 8512 Kennedy Boulevard 8324 Kennedy Blvd. 2nd North Bergen, NJ 07047 North Bergen, NJ 07047 Telephone (201) 681-2735 Telephone (201) 223-1803 Facsimile (201) 868-2292 yestrellaesq@gmail.com attespinosalawfirm@gmail.com te@lawespinosa.com November 10, 2022 VIA ECOURTS The Hon. Ernest M. Caposela, J.S.C. Passaic County Superior Court Civil Division 77 Hamilton Street Paterson, NJ 07505 Re: Juan Estrella v. City of Union City, et al. Docket Number: PAS-L-00983-22 Brief in Opposition to Motion for Change of Venue and in Support of Plaintiff’s Crossotion Returnable 11/18/22 Dear Judge Caposela: This office represents the plaintiff Juan Estrella in the above-mentioned action. Please accept this letter in lieu of a formal brief in support of the plaintiff’s opposition to the defendants City of Union City, Mayor Brian Stack both as individually and as Mayor of Union City, Chief Nichelle Lester both as individually and as Chief of Police of the Union City Police Department, Union City Police Department’s motion seeking to change venue to Hudson County pursuant to R. 4:3-2(a)(2) which it is returnable on November 18, 2022. Plaintiff is also cross-moving under R. 4:3-2(a)(2), for sanctions and attorney’s fees also returnable on November 18, 2022. 1 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 2 of 36 Trans ID: LCV20223921984 PRELIMINARY STATEMENT 1. Plaintiff filed a complaint in the Passaic County Superior Court on April 20, 2022. Defendants by application removed the case to the United States District Court for the District of New Jersey on May 19, 2022. On June 17, 2022 Plaintiff filed an amended complaint. The case was remanded back to Passaic County on August 2, 2022. At all times Defendants failed to file an answer or to plead by motion. 2. Defendants’ motion does not meet the standard under R. 4:3-2(a)(2), as some of the causes of actions did arise out of Passaic County, Plaintiff domicile. Thus, Plaintiff laid the venue properly as required under R. 4:3-2(a)(2). 3. Defendants’ waived change of venue as required by Rule 4:6-1. Defendants had to file their motion to change venue by September 1, 2022 but they failed to do so. As a result, the defendants waived their right to change venue per Rule 4:6-1. 4. Defendants failed to respond to plaintiff's redacted amended complaint as required per Rule 4:9-1. As a result, plaintiff moved for default with the present court and default was entered against all defendants on September 28, 2022. 5. Defendants waived its right to change venue after defaulting as ruled by the United States Supreme Court. 6. For all of those reasons, the defendants motion to change venue should be denied. PROCEDURAL HISTORY On April 20, 2022, Plaintiff filed a complaint with jury demand for Count I, Violation of Title VII of the Civil Rights Act of 1964; County II, Violation of the New Jersey Law Against Discrimination, Count III, Violation of 42 U.S.C. § 1983 Violation of Equal Protection and Due Process, Count IV Breach of Contract/Breach of Promise, Count V, Legal Misrepresentation 2 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 3 of 36 Trans ID: LCV20223921984 /Fraud, Count VI Employment Harassment, Count VII, Intentional Infliction of Emotional Distress and Count VIII Retaliation (Exhibit 1) See, Transaction ID: LCV20221613350. On April 22, 2022 plaintiff served the complaint upon the defendants as per the affidavit of service filed with the court on April 27, 2022 (LCV20221690718). On May 19, 2022, (30) thirty days from the time the Plaintiff filed the complaint, and (1) one day shy of defendants’ allowable time frame to remove to federal court, the defendants moved to remove the complaint based on 42 U.S.C. 1983 only despite the fact, that New Jersey Superior Courts have a long history of deciding 42 U.S.C. 1983 causes of action. See, Transaction ID: LCV20221952042. The defendants did not request an extension of time to respond to the pleading to the Plaintiff’s attorneys, nor made an application for an extension at the United States District Court for the District of New Jersey, Newark Vicinage. Plaintiff amended its pleading on June 17, 2022 removing both federal claims and adding additional details. (See Exhibit 2, for purposes of confidentiality Exhibit 2 will be the redacted amended complaint filed on July 15, 2022). On June 22, 2022, defendants made an application to seal the filed amended complaint. On June 23, 2022, a telephone conference was held with the Magistrate District judge in which the parties were to stipulate to a redacted amended complaint and on a consent order to remand back to State Court. During that conference it was agreed that Plaintiff would file an amended redacted complaint withdrawing the identities of the officers mentioned in the complaint. It was further agreed that since Federal court no longer had jurisdiction the case would be remanded back to Passaic County Superior Court upon a consent order. The parties had one conference to confer regarding a simple stipulation and redacted complaint on July 14, 2022 and by July 16, 2022, the redacted amended complaint had been filed. The parties could not agree on the 3 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 4 of 36 Trans ID: LCV20223921984 stipulated language for the remand and Plaintiff’s attorney sent a letter to the magistrate Judge Walder. (See, Exhibit 3) Between July 13 to July 26, 2022, unnecessarily defendants went back and forth with a simple stipulation to remand the matter back to State Court, which whether by consent or not was going to be remanded (See, Exhibit 4). Another tactic by the defendants to continue to delay. The stipulation to remand was filed on July 27, 2022. Unlike what’s claimed by defendants' attorneys, emails seized on July 26, 2022. (See, Exhibit 4) Plaintiffs did not hear from the defendants until August 16, 2022, where defendants yet again requested another pointless meeting. (See, Exhibit 6). There was nothing in defendants’ August 16, 2022 meeting request via email that Plaintiff’s attorneys needed to discuss with the Defendants; attorneys. It was simple, defendants needed to file their answer per the New Jersey State Rules and then file a change of venue motion per the New Jersey State Rules. No meeting was required for Plaintiff’s attorney to confer to tell the defendants’ attorney just that. It’s an unnecessary expense on Plaintiff. The defendants still have not requested to extend time to answer to the Plaintiff or to the Court. On August 2, 2022 the district court terminated the case and remanded the case back to Passaic County Superior Court. The final order remanding the case back to Passaic County Superior Court was signed on August 05, 2022 by Honorable Judge Thomas F. Brogan. Default was requested by Plaintiff’s on September 28, 2022 for failure to respond. See, Transaction ID: LC20223087375. On September 29, 2022 default was entered on defendants, See, Transaction ID: LCV20223499142. On September 30, 2022, the defendants’ attorneys emailed to plaintiff’s counsels, Ms. Estrella and Tomas Espinosa asked for a consent order to vacate default that defendants will file their answer or motion to dismiss by October 21, 2022. In that email Ms. Bove, stated, “ that they had not filed a response because they were never notified by the court of the remand.” What defendants' attorneys don’t understand is that the clock to answer or plead to 4 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 5 of 36 Trans ID: LCV20223921984 a pleading does not start counting upon remand- per both State and Federal rules, it begins to run at the time service was effected. (See, Exhibit 6). On October 3, 2022, a consent order was entered and agreed upon by the parties to vacate default and allow the defendants to answer or to file a motion to dismiss but no further motions have been consented to that would have been time barred per the New Jersey Rules, a letter was sent to the Court and defendants regarding this. (See, Exhibit 8) On October 21, 2022, the defendants moved to dismiss the complaint. On October 31, 2022, the defendants moved to change venue to Hudson County. STATEMENT OF FACTS Plaintiff, is a Passaic County resident since 2018, he has been a Police Officer serving Hudson County for the past (22) Twenty-two years. Prior to becoming a police officer for the Union City Police Department, Plaintiff Officer Estrella worked for the Hudson County Corrections Facility for (6) Six years. For the past (16) Sixteen years, Plaintiff Officer Estrella has served in the capacity of a Police Officer for the Union City Police Department. Plaintiff Officer Estrella, has always received satisfactory performance evaluations and is often involved in training newly hired police officers. On or about May 2018, Officer Estrella ranked number (13) Thirteen on the promotional list. Since then, Plaintiff Officer Estrella has been subjected to employment harassment, discrimination, a number of contractual and promise breaches, misrepresentations, fraud, and retaliation with the purpose of causing intentional infliction of emotional distress. Although some of the discriminatory conduct arose out of Hudson County, some also arose out of Passaic County. Defendants have subjected Plaintiff to disparate treatment in his well-earned promotion and other harassing actions, has subjected him to bogus disciplinary actions while bypassing serious misconduct of other police officers and promoting them. 5 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 6 of 36 Trans ID: LCV20223921984 Plaintiff has not been part of the scheme of the pay to play association defendant, Mayor Brian P. Stack has within the Union City- thus, plaintiff was subjected to further discrimination by the defendants. As a result, of defendants’ violation of the various New Jersey Rules, Statutes, and Constitution, Plaintiff has brought this cause of action. LEGAL STANDARD Rule 4:3-2(a) states the following: (a) Where Laid. Venue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or a possessory or other interest therein, or for damages thereto, or appeals from assessments for improvements, in the county in which any affected property is situate; (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose; (3) except as otherwise provided by R. 4:44A-1 (structured settlements), R. 4:53-2 (receivership actions), R. 4:60-2 (attachments), R. 5:2- 1 (family actions), R. 4:83-4 (probate actions), and R. 6:1-3 (Special Civil Part actions), the venue in all other actions in the Superior Court shall be laid in the county in which the cause of action arose, or in which any party to the action resides at the time of its commencement, or in which the summons was served on a nonresident defendant; and (4) actions on and objections to certificates of debt for motor vehicle surcharges that have been docketed as judgments by the Superior Court Clerk pursuant to N.J.S.A. 17:29A-35 shall be brought in the county of residence of the judgment debtor. N.J. Ct. R. R. 4:3-2 Rule 4:3-3(b) states the following: (b) Time; Form of Order; Filing. A motion for a change of venue shall be made not later than 10 days after the expiration of the time prescribed by R. 4:6-1 for the service of the last permissible responsive pleading, or, if the action is brought pursuant to R. 4:67 (summary actions), on or before the return date. If not so made, objections to venue shall be deemed waived except that if the moving party relies on R. 4:3-3(a)(2) the motion may be made at any time before trial. The order changing venue shall not be incorporated in any other order and shall be filed in triplicate. If a mediator has already been appointed, the party moving to change venue shall serve a copy of the motion on that person prior to the mediation date. The moving party also shall promptly serve on the mediator a copy of the order entered on the motion. N.J. Ct. R. R. 4:3-3 Rule 4:6-1 states the following: (a) Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8- 1(b) (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(i) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and 6 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 7 of 36 Trans ID: LCV20223921984 complaint on that defendant. If service is made as provided by court order, pursuant to R. 4:4-4(b)(3), the time for service of the answer may be specified therein. Service of the answer shall be complete as provided by R. 1:5-4. A party served with a pleading stating a counterclaim or crossclaim against that party shall serve an answer thereto within 35 days after the service upon that party. A reply to an answer, where permitted, shall be served within 20 days after service of the answer. N.J. Ct. R. R. 4:6-1 Rule 4:9-1 states the following: A party may amend any pleading as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is to be served, and the action has not been placed upon the trial calendar, at any time within 90 days after it is served. Thereafter a party may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice. A motion for leave to amend shall have annexed thereto a copy of the proposed amended pleading. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders. N.J. Ct. R. R. 4:9-1 Rule 4:6-1 states the following: (c ) Time; Extension by Consent. The time for service of a responsive pleading may be enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be filed with the responsive pleading within said 60-day period. Further enlargements shall be allowed only on notice by court order, on good cause shown therefor. N.J. Ct. R. R. 4:6-1 Federal Rules of Civil Procedure Rule 12 states the following: (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Fed. R. Civ. P. 12. 7 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 8 of 36 Trans ID: LCV20223921984 LEGAL ARGUMENT A. PLAINTIFF MET THE STANDARD UNDER RULE 4:3-2(a) AND LAID VENUE PROPER, THUS FOR THAT REASON DEFENDANTS’ MOTION SHOULD BE DENIED. First and foremost, the Courts have held that, [th]e rule states that “[v]enue shall be laid by the plaintiff.” It does not provide that in all actions involving a public body or official the case must be tried in the county in which the cause of action arose. Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583, 585 (Law. Div. 1983). When a question of venue is at question, the Courts have noted that: ‘A cause of action is said to accrue to any person when that person first comes to a right to bring an action.’ Bouvier's Law Dictionary (3d ed. 1914). ‘No entirely satisfactory definition of a cause of action has as yet been enunciated but a generally accepted definition is that a cause of action is ‘the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief.’ 1 Am.Jur., Actions, p. 404. Levey v. Newark Beth Israel Hospital, 17 N.J.Super. 290, 85 A.2d 827, 829 (Cty.Ct.1952). When considering a venue question, the Courts generally considers where the causes of action arose and it has been noted that: “The cause of action arises, for purposes of venue, in the county where the acts or omissions constituting the basis of the action occurred.1 A cause of action may be said to accrue, within the meaning of a statute fixing the venue of actions, when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” 77 Am. Jur. 2d Venue § 36 In determining venue in this case, the Courts should consider all aspects involved. It is indisputable that Plaintiff is a resident of Passaic County and was a resident of Passaic County 8 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 9 of 36 Trans ID: LCV20223921984 when all of the causes of action arose. Therefore, it is indisputable that Passaic County has personal jurisdiction over Plaintiff. Further, it is well known that home jurisdictions do have the greatest interest to protect their citizens. Laufer v. U.S. Life Ins. Co. in City of New York, No. BER-L-9082-04, 2005 WL 1869211, at *7 (N.J. Super. Ct. Law Div. Aug. 8, 2005), aff'd, 385 N.J. Super. 172, 896 A.2d 1101 (App. Div. 2006) Thus, Passaic County does have interest as the Plaintiff in this case is a resident of Passaic County. Venue has been described, not a jurisdictional issue, but rather, as one regarding procedure, implicating both the fair and efficient administration of justice and the convenience of the parties. (See Stahl v. Stahl, No.A-2855-19 at * 2 (App. Div. 06/11/2021) Plaintiff resides in Passaic County and in which some of the causes of action arose, therefore elected to file his claim at the present court, since as per the rules. The defendants have failed to demonstrate a good cause for the change of venue, and plaintiff further states that it is convenient to him to have the case to be tried in Passaic County, since, the request to transfer the case to the Hudson County, where the defendants have political connections, would be unfair and not partial to the plaintiff’s lawsuit. One of the defendants Brian P. Stack is an American Democratic Party politician who serves in the New Jersey Senate, he represents the 33rd Legislative District and serves as Chairman of the Senate Judiciary Committee. Mr. Stack a a Chairman of the Senate Judiciary Committee votes in appointing state judges, plaintiff feels that there would not be impartiality in reviewing and adjudicating his case in Hudson County, therefore, plaintiff has laid his case in Passaic County in order to avoid any conflict of interest and/or favoritism and bias by the court on the defendants, plaintiff’s, his 9 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 10 of 36 Trans ID: LCV20223921984 witnesses and in the interest of justice, additionally, the venue is laid in accordance with Rule 4:3-2(a). Further Rule 4:3-2(a)(2) provides that: “Venue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or a possessory or other interest therein, or for damages thereto, or appeals from assessments for improvements, in the county in which any affected property is situate; (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose.” Defendants attempt to assert that the only county in which all of the causes of action arose in this action are exclusively in Hudson County and that therefore, venue must be transferred to Hudson County. Defendants' argument fails in its entirety, some of the causes of actions did arise out of Hudson County, but some of the causes of actions arose out of Passaic County as well. For example, per the Plaintiff’s certification some of the breach of promise allegations took place while Plaintiff was in Passaic County in his residence. First, when defendant Nichelle Luster made her misrepresentation via text message, plaintiff was in his residence in Passaic County. This intentional misrepresentation by Nichelle Luster was intent to harass, and disturb Plaintiff peace while Plaintiff was in his domicile. Further, the defendant, Mayor Brian P. Stack called a third party, witness Santiago Estrella- the father of the plaintiff to schedule an appointment to meet with Plaintiff Officer Estrella to discuss his promotion. (See, Certification from Santiago Estrella). When the witness contacted plaintiff Officer Estrella, he was at his home in Passaic County. Officer Estrella was once again disturbed by the defendants at the anticipation of the conversation with Mayor Stack regarding his promotion. At that point, 10 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 11 of 36 Trans ID: LCV20223921984 when Mayor Stack called the witness to set up an appointment, he did so with the intent to make the misrepresentation, the promise to Plaintiff made on September 27, 2022, in which he did. The intent of the misrepresentation took place while Plaintiff was in Passaic County. On February 3, 2022, defendant Brian P. Stack breached its promise but this time by calling plaintiff while plaintiff -once again causing emotional distress on the Plaintiff by his breach. It is unknown where the defendants were at the times of these causes of action. Not satisfied with carrying defendants harassing nature while Plaintiff was at his domicile, upon the filing of Plaintiff’s first complaint, and effective service upon the defendants on April 22, 2022, defendants once again harassed Plaintiff by retaliating and calling him while Plaintiff was at his home because of what appeared to be a system malfunction or human error, Plaintiff resolved the error, but defendants’ in effort to retaliate and harass Plaintiff called Plaintiff yet once again and demanded Plaintiff to report to work and reprimanded him. Once again, the cause of action arose while Plaintiff was in Passaic County. This is not to mention that often times when defendant Chief Luster initiated her harassment actions against Plaintiff by subjecting the Plaintiff to bogus investigations, internal affairs she would email Plaintiff regarding the investigation while Plaintiff was off and, in his domicile, where he is to suppose to be at peace, he’d receive emails informing him of yet another unfounded, unsupported, non-investigated allegation and subjecting Plaintiff to yet another investigation which did not meet the standard per the Attorney General Policy and Procedures but this was done in an attempt to harass. (See, the Plaintiff’s certification for the statements noted above). It is clear that actions did arise in this matter while Plaintiff was in his domicile in Passaic County, which makes Passaic County proper venue. Defendants once again made an incorrect inference as to all of the causes of action. Thus, because Rule 4:3-2(a)2 references where the cause of action arose and given that the causes of 11 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 12 of 36 Trans ID: LCV20223921984 actions arose in two counties, Plaintiff’s choice to lay venue where he domiciles was proper and confers with Rule 4:3-2(a)2. Courts generally defer to the plaintiff's choice of venue in the event alternative venues exist. See, e.g., Civic S. Factors Corp., supra, 65 N.J. at 333. Flatley v. Mountain Creek Water Park, No. BER-L-6864-14, 2015 WL 374976, at *4 (N.J.Super.L. Jan. 23, 2015);see also Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583 (Law Div. 1983) ("R. 4:3-2 is specific and unambiguous in providing that it is the plaintiff who makes the determination as to where venue shall be when alternatives exist") also see New Jersey Courts generally defer to the plaintiff's choice of venue in the event alternative venues exist. See Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333, 322 A.2d 436 (1974) ("a plaintiff's choice of forum ordinarily will not be disturbed except upon a clear showing of real hardship or for some other compelling reason"); see also Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583 (Law Div. 1983) ("R. 4:3- 2 is specific and unambiguous in providing that it is the plaintiff who makes the determination as to where the venue shall be when alternatives exist").Gafner v. Bergen Fam. Foot Care, LLC, 2022 N.J. Super. Unpub. LEXIS 676. ‘The question of the proper place of trial is essentially administrative in character * * *. The court should be free to decide according to the circumstances of the case with a view to giving each party a reasonably fair opportunity to present his proof. Intricate metaphysical reasoning as to the nature of actions and dogma as to jurisdiction should not be allowed to obscure this simple practical issue. * * *’ 44 Harv.L.Rev. 41 (1930). Further, in determining rules and regulations it is always important to analyze the intent the legislature sought to achieve in establishing the Rule. The intent behind Rule 4:3-2(a)2 has been quoted in a number of cases. 12 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 13 of 36 Trans ID: LCV20223921984 The Courts have said, “R. 4:3-2 venue in every case could be laid in any county. Our rules of venue had their genesis in the English common law where jurors were presumed to have knowledge of both the parties and the facts of the case. In theory they were witnesses summoned to decide the controversy and so a plaintiff was limited in his venue to the locality where the jurors resided and the activities occurred which gave rise to the suit.” 77 Am.Jur.2d, Venue § 2 at 833; Note, 16 Rut.L.Rev. 784 (1962). Doyley v. Schroeter, 191 N.J. Super. 120, 123–24, 465 A.2d 583, 584 (Law. Div. 1983) The Courts have further stated, [t]he requirement of R.4:3-2(a)(2) has a sound basis in logic. Often the cause of action in a case involving a public body or official arises in the county where the governmental unit is located. Ordinarily the witnesses, documents, public officials and counsel are there. [T]he public interest would not be well served if the duties of public officials were disrupted or left unattended while they were forced to defend actions brought against them in distant counties which have little or no connection with the conduct that forms the basis of the suit. [Sinderbrand v. Schuster, 170 N.J.Super. 506, 511, 406 A.2d 1344 (Law Div.1979) ] Doyley v. Schroeter, 191 N.J. Super. 120, 124, 465 A.2d 583, 585 (Law. Div. 1983) Here, it is evident that the legislature's intent does not apply to the case at hand. First, it is important to note that the cases and statutes were enacted by the legislature in the pre-computer, pre-technology era. Thus, many of the resources available today were not available then. Second, case law regarding intent and the defendant’s themselves talks about documents, the intent of the legislature regarding documents by public officials, the legislature wanted to alleviate the burden of document production and/or document presentation, having to carry tons of documents between the counties as was the case during the era these cases were decided. See, generally, 13 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 14 of 36 Trans ID: LCV20223921984 Hesselbrock v. Burlington Cnty., 111 N.J.L. 177, 180, 168 A. 45, 46 (Sup. Ct. 1933). However, in today’s day in age, this is no longer the case, the rules that applied to document production, to filing in the Courts, have changed. Almost everything is done electronically whether venue is in defendants’ county or where Plaintiff laid venue- defendants would not have the worrisome of carrying tons and tons of documents or mailing tons of documents in document production as a simple email will do, further, the same applies to presenting documents in Court- often times a separate drive will do, Courts generally have devices for attorneys to present documents electronically. Further the case law history regarding intent also refers to witnesses, the defendants also raise the issue about witnesses, the intent to not inconvenience the witnesses does not apply here as well, most of all the witnesses do not reside in Hudson County and in fact, most of the witnesses would benefit from venue laid in Passaic County. For example, Plaintiff himself lives in Passaic County, Officer listed as Officer A on the RAC (See, Exhibit 2) lives in Ridgefield Park a town in Bergen County, Officer B lives in Hasbrouck Heights a town in Bergen County, Officer J lives in Mahwah a town in Bergen County, Officer F lives in New Milford a town in Bergen County, Officer E lives in Wallington a town in Bergen County, Officer I lives in Bogota a town in Bergen County, One of the Officer who was promoted in Officer Estrella’s place lives in New Milford a town in Bergen County, Witness Santiago Estrella lives in Hudson County but prefers venue to be laid in Passaic County given the traffic and lack of parking in Hudson County Superior Court (See, Certification of Santiago Estrella). In fact, defendant Nichelle Luster herself does not reside in Hudson County- despite the misrepresentation made by the defendant's attorney to the Court that Former Chief Luster is an employee in Hudson County. Chief Luster is retired and resides in Middlesex County, a difference of 5 to 10 minutes between coming to Hudson County or Passaic County. Next, 14 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 15 of 36 Trans ID: LCV20223921984 defendants attempt to argue that Passaic County inconveniences the witnesses because they work in Hudson County, this is absurd and irrational and has not been recognized by any Court. Where a witness is employed is irrelevant to the witness’s convenience, what is considered is the witness's residence. “The convenience of witnesses as bearing on a change of venue for forum non conveniens may be considered in connection with the location of witnesses.” 92A C.J.S. Venue § 195 In the case of Hesselbrock v. Burlington County, a 1933 case, the defendant, County of Burlington, moved from a change of venue from Essex County where the suit is laid to Burlington County, where the accident occurred and defendants reside. Here, the Court instead changed the venue to Mercer County. “The trial seat of Mercer County, Trenton, is but a comparatively short distance from the scene of the accident, and a very short distance from Mt. Holly, where the necessary records are kept and where most of the petitioner's witnesses reside.” Hesselbrock v. Burlington Cnty., 111 N.J.L. 177, 180, 168 A. 45, 46 (Sup. Ct. 1933) Thus, it’s clear that when given consideration of convenience it’s not where the witnesses are employed but rather where they reside. It would be illogical for the Court to determine a witness’s convenience on the bases of employment as the witness would have to take time off of work to go to Court. Thus, witnesses’ convenience rests on residence. Further, in reality, almost all witnesses reside outside of Hudson County, all but approximately two of the witnesses reside in Hudson County, one of the defendants being Mayor Stack. Most of the witnesses are residents of Bergen County, the next-door neighbor of Passaic County, it is undisputed that Bergen County residents are closer to Passaic Superior Court then Hudson County is. Thus, clearly Passaic County would be more convenient to these witnesses. 15 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 16 of 36 Trans ID: LCV20223921984 Further, it should be noted that the difference from defendant, Mayor Stack’s home between Passaic County Superior Court and Hudson County Superior Court it’s only a difference of 10 miles, a difference of at most 15 minutes and with the traffic and the parking issues known for Hudson County Superior Court- even the defendant Mayor Brian Stack himself might benefit from venue at Passaic County. (See, Certification of Santiago Estrella accompanying this opposition) Further, the defendant, Mayor Stack is a Senator in the State of New Jersey, thus, Passaic County is not a distant place to him. Thus, the burden that the legislature attempted to alleviate for public officials under Rule 4:3-2(a) does not apply to the case at hand and importantly for the Court’s consideration is that almost all witnesses would benefit from venue in Passaic County. For those reasons, the intent behind Rule, 4:3-2(a) does not apply to the case at hand because Passaic County is more convenient to the witnesses they would benefit from venue at Passaic County, Passaic County is close in proximity to defendant, Mayor Stack and document production is done almost at all times electronically- Thus, the intent behind Rule, 4:3-2(a) does not apply here. Furthermore, “The burden of demonstrating good cause for or against a change of venue depends on the motion. "[I]f the motion is made pursuant to R. 4:3-3(a)(2) or (3), the movant has the burden of demonstrating good cause for the change." See Pressler & Verniero, N.J. Court Rules, cmt. on R. 4:3-3 (2021). In addition there are more bases for the non removal to Hudson county because in Hudson county there are facts of actual or more likely problems of lack of impartiality and publicity than Passaic that has none ( See counsels certifications and the certifications accompanying this letter brief.) Lastly, Defendants’ allegation that “defendants’ ability to adequately defend this matter is prejudiced, and negatively impacted by its being handled in a county other than where the matter arose and where its’ witnesses are located, is a lie and a blatant misrepresentation to the Court. 16 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 17 of 36 Trans ID: LCV20223921984 First, defendants removed the matter to the New Jersey District Court located in Newark, Essex County which is approximately the same distance to the defendants from Passaic County to Essex County. The District Court was not where any of the courses of action arose yet they removed on the grounds as they claim- that Plaintiff had several counts that Federal Court has exclusive jurisdiction. Another lie from the defendants, first the complaint only had two federal claims, one of those claims which would have been dismissed by either Court Federal and/or State, and a 42 U.S.C. 1983 in which both federal and State Court have ruled that on for purposes of 42 U.S.C. 1983 the state has concurrent jurisdiction. (See, Exhibit 1, Complaint filed 4/20/22) Thus, 42 U.S.C. 1983 could have very well been adjudicated in State Court. The defendants did not consider that the causes of actions could only be adjudicated where according to them all of the causes of actions arose which according them was Hudson County, when they removed to a Federal Court where none of the causes of action arose, they were okay with litigating the matter in Federal Court a Court which does not sit in Hudson County and to wish none of the causes of actions arose nor did the defendants consider where its witnesses were located then. A court sitting in Essex County would clearly inconvenience the witnesses. Thus, the claim that defendants would be prejudiced if not litigated in Hudson County is a lie and an obvious misrepresentation to the Court. Second, the misrepresentation by the defendants claiming that Hudson County is where the witnesses are located, when in fact most of the witnesses named on the RAC would benefit from the venue being at Passaic County. Defendants’ only reason for this change of venue is to explode Plaintiff in attorney fees, to annoy Plaintiff, and to cause further delays of which they have already caused- months in delay. 17 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 18 of 36 Trans ID: LCV20223921984 Despite the movants claims, Defendants have not established that the convenience of the parties or the interests of justice mandate the removal of this action to Hudson County. While Defendants cite to Doyley v. Schroeter, 191 N.J. Super. 120, 465 A.2d 583 (Law Div. 1983), in support of their application to change venue, the Court in fact denied a change of venue in Doyley since plaintiffs had properly filed in the correct venue the action in the County of their residence and the defendants failed to show how the interests of justice would be implicated. There is an insufficient basis to disturb venue that is, in all respects, pursuant to Court Rules, properly laid. For the foregoing reasons, it is respectfully requested that Defendants' motion to change venue from PASSAIC COUNTY where it is properly laid, to the venue of HUDSON COUNTY, be denied. B. EVEN IF THE COURT DECIDED THAT VENUE WAS LAID IMPROPER, THE DEFENDANTS WAIVED VENUE, THUS THIS COURT SHOULD DENY THEIR MOTION. The facts are clear, defendants had until May 27, 2022 per NJ State Rules to respond to Plaintiff initial complaint per NJ Court rules. (a) Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8-1(b) (third-party joinder), R. 4:9-1 (answer to amended complaint), and R. 4:64-1(i) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and complaint on that defendant. N.J. Ct. R. R. 4:6-1 Instead, the defendants’ attempted to do a tactical move and removed it to New Jersey District Court which is located in Newark, Essex County. The tactical move was based on 18 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 19 of 36 Trans ID: LCV20223921984 avoiding responding to the pleading and because they have an associate, which was a direct associate clerk for many of the New Jersey District Court judges who was specifically assigned to this case and who mysteriously disappeared once the case was remanded back to State Court. The removal was not based on several federal claims arising exclusively under federal law. The filed and served April 20, 2022 complaint contained two counts that involved federal matters. (See, Exhibit 1) One of which would have been dismissed in Federal Court or State Court as a matter of law because Plaintiff did not file a charge of discrimination with EEOC. [A] Title VII plaintiff is required to file a charge of discrimination with the EEOC before she may proceed in federal court. Vonderohe v. B & S of Fort Wayne Inc., 36 F. Supp. 2d 1079, 1081 (N.D. Ind. 1999) This was never done, and never alleged in the complaint, this count would have been dismissed by any New Jersey State Court and any District Court. In the naked eye, the April 20, 2022 complaint only had one federal count 42 U.S.C. 1983, in which NJ Courts have concurrent jurisdiction. “[S]tate courts have concurrent jurisdiction with federal courts over civil rights actions.” Endress v. Brookdale Cmty. Coll., 144 N.J. Super. 109, 132, 364 A.2d 1080, 1092 (App. Div. 1976). The District Court never truly had jurisdiction, this was a tactic used by the defendants to inconvenience the Plaintiff and cause the plaintiff unnecessary expenses, delays, and avoid responding timely. Nonetheless, defendants were successful in removing the matter to the New Jersey District Court. At all times defendants failed to request an extension to file their answer or first pleading. Once this matter was removed, the federal rules applied. “In the period between removal of a case to federal court and the grant of a motion to remand to state court, 19 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 20 of 36 Trans ID: LCV20223921984 the federal court maintains sole jurisdiction over the litigation.” Jatczyszyn v. Marcal Paper Mills, Inc., 422 N.J. Super. 123, 132, 27 A.3d 213, 219 (App. Div. 2011) Thus, defendants had to comply with Federal Rule 12(a)(i), but failed too. Federal rule 12(a)(i) states: (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Under Federal Rule 12(a)(i), the defendants had 21 days after being served to respond to the pleading, giving it a conservative approach; defendants at the time of removal to the district court were already in default. Giving the defendants a liberal approach, defendants had 21 days from the time of removal to file its answer or first pleading which started to run on May 19, 2022. Twenty-one days from May 19, 2022 is June 8, 2022. Defendants failed to answer or plead or request a time extension to answer. Plaintiff did not pursue default or any other action against the defendants in an attempt to create a workable relationship and hopefully reach a resolution convenient to all parties. Even though plaintiff’s attorney discussed with the defendants’ attorney a possible resolution of the case without litigating which was never rejected by the defendants prior to any motion and litigation be involved, they simply ignored a proposed and reasonable settlement propounded by the plaintiff’s attorneys. Thus, whether you apply the NJ Rule 4:6-1 20 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 21 of 36 Trans ID: LCV20223921984 allowing the defendants’ 35 days to file their first answer or pleading, or you apply federal rule 12(a)(i) the defendants were still in default. On June 17, 2022, Plaintiff amended his pleading and removed all federal counts or federal questions that would keep the case in the District Court. Defendants’ attorneys did not like the language contained in the amended complaint, despite Plaintiff’s attorneys explaining that the amended complaint did not include any confidential information since most of the allegations in plaintiff’s complaint had been published, being open record to the public, thus destroying their alleged confidentiality. Nonetheless, defendants put great emphasis in immediately doing a motion to seal, yet, defendants once again were silent on when their intent to answer or plead on the amended complaint. Per the Federal Rules, defendants had until July 8, 2022 to file their answer or plead. Once again defendants were in default for failure to respond. Plaintiff once again did not notify the Court or reach Plaintiff’s attorney for an extension. Even if the case was to be remanded federal rules controlled up until remand was final and defendants’ attorneys failed to take any action as to answer. [U]nder Fed.R.Civ.P. 81(c)(1), the federal rules of procedure, including all rules pertaining to discovery, apply to civil actions once they are removed from a state court. Jatczyszyn v. Marcal Paper Mills, Inc., 422 N.J. Super. 123, 133, 27 A.3d 213, 219 (App. Div. 2011) In the period between removal of a case to federal court and the grant of a motion to remand to state court, the federal court maintains sole jurisdiction over the litigation. Id. The fact is that per the Federal Rules, once the case was remanded back to State Court, Plaintiff’s file should have included defendants first pleading, yet, it did not. Nonetheless, Plaintiff still waited the 35 days required under Rule 4:6-1 to enter default despite the fact that Plaintiff only had to wait 20 days under Rule 4:9-1. The Court should note that the default was 21 PAS-L-000983-22 11/10/2022 11:42:21 PM Pg 22 of 36 Trans ID: LCV20223921984 entered over (8) eight months since Plaintiff first filed its first complaint and (4) four months after filing its first amended complaint. Defendants cannot allege that the filed RAC would govern Plaintiff’s last pleading as it was only a redaction and not an amendment. Even if the defendants would have done what they were required to do, which is to request for an extension to answer, defendants would have still been in default regardless of which rule the Court applied, federal or state. NJ State Rule 4:6-1(c ) states: The time for service of a responsive pleading may be enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be filed with the responsive pleading within said 60-day period. Further enlargements shall be allowed only on notice by court order, on good cause shown therefore. N.J. Ct. R. R. 4:6-1. Federal Rule 12(a)(ii) states: if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Both State and Federal rules only allow for a 60-day time period and defendants are well past that. Regardless, this is not applicable to the defendants as they have not requested a time extension. The defendants attempt to place fault on their adversaries and on the Court, on everyone but not on themselves. The Court is under no obligation to give defendants’ legal advice as to how and when defendants’ attorneys must check their cases and review their dockets, or let them know when they have to file their clients’ answer, appearance or motion to dismiss. Plaintiff’s attorneys followed due diligence and checked the docket for updates and followed due course. The Court was under no obligation to advise Plaintiff’s attorneys to check the docket for the order; th