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ESX-L-003767-23 08/30/2023 Pg 1 of 3 Trans ID: LCV20232485904
LAW OFFICES OF FRANCIS D. MACKIN
By: Gina M. Graham
NJ Attorney ID No.: 025522002
325 Columbia Turnpike, Suite 105
Florham Park, NJ 07932
(973) 443-9100
Attorney for Defendants, BROCK K. BARBERI and EDWARD J. BARBERI
SUPERIOR COURT OF NEW JERSEY
RAJEEAH L. JONES LAW DIVISION
ESSEX COUNTY
Plaintiff(s)
vs. DOCKET NO: ESX-L-003767-23
BROCK K. BARBERI, EDWARD J.
BARBERI, PERSONAL SERVICE
INSURANCE COMPANY, JOHN DOE 1-
10 AND ABC CORP. 1-10 (NAMES Granted.
BEING FICTITIOUS AS TRUE
IDENTITIES ARE UNKNOWN AT THIS
TIME)
Defendant(s) ORDER CHANGING VENUE TO
BURLINGTON COUNTY
This matter having been opened to the Court upon motion of Gina M. Graham, attorney
for Defendants, BROCK K. BARBERI and EDWARD J. BARBERI and the Court having
considered the moving papers and any opposition submitted thereto, and for good cause shown;
IT IS, on this ___30th____ day of _________August__________, 2023, ORDERED that
this case should be and is hereby transferred to Burlington County.
IT IS FURTHER ORDERED that a copy of this Order shall be deemed served upon
counsel for all parties upon e-filing by the Court.
/ Sheila Venable____
HON. SHEILA A. VENABLE, A.J.S.C.
ESX-L-003767-23 08/30/2023 Pg 2 of 3 Trans ID: LCV20232485904
STATEMENT OF REASONS
ESX-L-3767-23
This cause of action arises out of a motor vehicle accident which occurred on December 16, 2021,
in Mount Holly Township, Burlington County, New Jersey. See Cert. of Gina M. Graham, Esq. ¶
2. Rajeeah Jones (“Plaintiff”) resided at the time of the accident and currently resides at 432 Raven
Road, Robbinsville, Mercer County, New Jersey. Id. ¶ 3. Defendants Brock K. Barberi and Edward
J. Barberi presently, and at the time of the accident, reside in Lumberton, Burlington County, New
Jersey. Id. ¶ 5.
Plaintiff filed this suit against Defendants Brock K. Barberi, Edward J. Barberi, Personal Service
Insurance Company and fictitious defendants on June 13, 2023. Defendants Brock K. Barberi and
Edward J. Barberi filed their answer on July 10, 2023. Defendants Brock K. Barberi and Edward
J. Barberi (hereinafter, “Moving Defendants”) filed this instant motion to transfer venue on July
18, 2023. Moving Defendants claim that according to the Complaint, Plaintiff alleges that Personal
Service Insurance Company is responsible to pay medically related expenses (PIP) for the injuries
referred to in the Complaint. See Cert. of Gina M. Graham, Esq. ¶ 6. Furthermore, Moving
Defendants state that Plaintiff alleges that Personal Service Insurance Company is a company
transacting business throughout Essex County and therefore is the sole reason for filing this case
in Essex County. Id. Moving Defendants allege that placing venue in Essex County for the sole
reason that a corporate defendant transacts business there is against the spirit of R. 4:3-2, and
respectfully, should not be allowed. Id. ¶ 9. Accordingly, Moving Defendants claim that Essex
County is an improper venue and instead Burlington County is the most proper venue for this
action since the accident occurred in Burlington County and Defendants reside in Burlington
County. Id. ¶ 10. Furthermore, Moving Defendants allege that in the alternative, the proper venue
would be Mercer County. Id.
No Opposition was filed.
R. 4:3-2 provides, in relevant part: “venue…shall be laid [by the plaintiff] 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.” R. 4:3-2(a)(3).
Further, “a business entity shall be deemed to reside in the county in which its registered office is
located or in any county in which it is actually doing business.” R. 4:3-2(b); see also Crepy v.
Reckitt Benckiser, LLC, 448 N.J. Super. 419 (Law Div. 2016) (elucidating the meaning of the
“actually doing business” requirement).
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 (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, 191 N.J. Super. at 124 (“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”).
R. 4:3-3 addresses change of venue and provides, in relevant part:
a change of venue may be ordered by the Assignment Judge… of the county in
which venue is laid… (1) if the venue is not laid in accordance with R. 4:3-2; or (2)
if there is a substantial doubt that a fair and impartial trial can be had in the county
ESX-L-003767-23 08/30/2023 Pg 3 of 3 Trans ID: LCV20232485904
in which venue is laid; or (3) for the convenience of the parties and witnesses in the
interest of justice[.]
R. 4:3-3(a).
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, Current N.J. Court Rules,
cmt. on R. 4:3-3 (2022). On the other hand, “[i]f the motion is made pursuant to R. 4:3-3(a)(1),
the respondent has the burden of demonstrating good cause for not making a change.” Ibid.
Applicable to either situation,
If a motion is based on facts not appearing of record or not judicially noticeable,
the court may hear it on affidavits made on personal knowledge, setting forth only
facts which are admissible in evidence to which the affiant is competent to testify
and which may have annexed thereto certified copies of all papers or parts thereof
referred to therein.
R. 1:6-6. This means that “facts based merely on ‘information and belief’” will not be considered
by a court. Pressler & Verniero, cmt. on R. 1:6-6. Moreover, “[a]ffidavits by attorneys of facts
not based on their personal knowledge but related to them by and within the primary knowledge
of their clients constitutes objectionable hearsay.” Ibid.
Here, Plaintiff alleged that Defendant Personal Service Insurance Company is a company
transacting business throughout Essex County. Plaintiff did not cite to any website nor any exhibits
to explain such statement. The only mention by Plaintiff in their Complaint is the following,
“[u]pon information and belief, Personal Service Insurance Company is a company transacting
business throughout Essex County, New Jersey.” See Pl. Compl. Defendant Personal Service
Insurance Company is not included on the motion to transfer venue, nor have they filed an Answer,
thus they have neither denied or conceded that they do business in Essex County. Accordingly, the
Court can only determine whether Defendant Personal Service Insurance Company based off the
moving papers and therefore the Court finds that Plaintiff did not provide sufficient evidence.
For the foregoing reasons, Moving Defendants’ Motion to Transfer Venue to Burlington County
is GRANTED.
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ESX-L-003767-23 08/30/2023 Pg 1 of 3 Trans ID: LCV20232485904 LAW OFFICES OF FRANCIS D. MACKIN By: Gina M. Graham NJ Attorney ID No.: 025522002 325 Columbia Turnpike, Suite 105 Florham Park, NJ 07932 (973) 443-9100 Attorney for Defendants, BROCK K. BARBERI and EDWARD J. BARBERI SUPERIOR COURT OF NEW JERSEY RAJEEAH L. JONES LAW DIVISION ESSEX COUNTY Plaintiff(s) vs. DOCKET NO: ESX-L-003767-23 BROCK K. BARBERI, EDWARD J. BARBERI, PERSONAL SERVICE INSURANCE COMPANY, JOHN DOE 1- 10 AND ABC CORP. 1-10 (NAMES Granted. BEING FICTITIOUS AS TRUE IDENTITIES ARE UNKNOWN AT THIS TIME) Defendant(s) ORDER CHANGING VENUE TO BURLINGTON COUNTY This matter having been opened to the Court upon motion of Gina M. Graham, attorney for Defendants, BROCK K. BARBERI and EDWARD J. BARBERI and the Court having considered the moving papers and any opposition submitted thereto, and for good cause shown; IT IS, on this ___30th____ day of _________August__________, 2023, ORDERED that this case should be and is hereby transferred to Burlington County. IT IS FURTHER ORDERED that a copy of this Order shall be deemed served upon counsel for all parties upon e-filing by the Court. / Sheila Venable____ HON. SHEILA A. VENABLE, A.J.S.C. ESX-L-003767-23 08/30/2023 Pg 2 of 3 Trans ID: LCV20232485904 STATEMENT OF REASONS ESX-L-3767-23 This cause of action arises out of a motor vehicle accident which occurred on December 16, 2021, in Mount Holly Township, Burlington County, New Jersey. See Cert. of Gina M. Graham, Esq. ¶ 2. Rajeeah Jones (“Plaintiff”) resided at the time of the accident and currently resides at 432 Raven Road, Robbinsville, Mercer County, New Jersey. Id. ¶ 3. Defendants Brock K. Barberi and Edward J. Barberi presently, and at the time of the accident, reside in Lumberton, Burlington County, New Jersey. Id. ¶ 5. Plaintiff filed this suit against Defendants Brock K. Barberi, Edward J. Barberi, Personal Service Insurance Company and fictitious defendants on June 13, 2023. Defendants Brock K. Barberi and Edward J. Barberi filed their answer on July 10, 2023. Defendants Brock K. Barberi and Edward J. Barberi (hereinafter, “Moving Defendants”) filed this instant motion to transfer venue on July 18, 2023. Moving Defendants claim that according to the Complaint, Plaintiff alleges that Personal Service Insurance Company is responsible to pay medically related expenses (PIP) for the injuries referred to in the Complaint. See Cert. of Gina M. Graham, Esq. ¶ 6. Furthermore, Moving Defendants state that Plaintiff alleges that Personal Service Insurance Company is a company transacting business throughout Essex County and therefore is the sole reason for filing this case in Essex County. Id. Moving Defendants allege that placing venue in Essex County for the sole reason that a corporate defendant transacts business there is against the spirit of R. 4:3-2, and respectfully, should not be allowed. Id. ¶ 9. Accordingly, Moving Defendants claim that Essex County is an improper venue and instead Burlington County is the most proper venue for this action since the accident occurred in Burlington County and Defendants reside in Burlington County. Id. ¶ 10. Furthermore, Moving Defendants allege that in the alternative, the proper venue would be Mercer County. Id. No Opposition was filed. R. 4:3-2 provides, in relevant part: “venue…shall be laid [by the plaintiff] 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.” R. 4:3-2(a)(3). Further, “a business entity shall be deemed to reside in the county in which its registered office is located or in any county in which it is actually doing business.” R. 4:3-2(b); see also Crepy v. Reckitt Benckiser, LLC, 448 N.J. Super. 419 (Law Div. 2016) (elucidating the meaning of the “actually doing business” requirement). 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 (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, 191 N.J. Super. at 124 (“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”). R. 4:3-3 addresses change of venue and provides, in relevant part: a change of venue may be ordered by the Assignment Judge… of the county in which venue is laid… (1) if the venue is not laid in accordance with R. 4:3-2; or (2) if there is a substantial doubt that a fair and impartial trial can be had in the county ESX-L-003767-23 08/30/2023 Pg 3 of 3 Trans ID: LCV20232485904 in which venue is laid; or (3) for the convenience of the parties and witnesses in the interest of justice[.] R. 4:3-3(a). 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, Current N.J. Court Rules, cmt. on R. 4:3-3 (2022). On the other hand, “[i]f the motion is made pursuant to R. 4:3-3(a)(1), the respondent has the burden of demonstrating good cause for not making a change.” Ibid. Applicable to either situation, If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. R. 1:6-6. This means that “facts based merely on ‘information and belief’” will not be considered by a court. Pressler & Verniero, cmt. on R. 1:6-6. Moreover, “[a]ffidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitutes objectionable hearsay.” Ibid. Here, Plaintiff alleged that Defendant Personal Service Insurance Company is a company transacting business throughout Essex County. Plaintiff did not cite to any website nor any exhibits to explain such statement. The only mention by Plaintiff in their Complaint is the following, “[u]pon information and belief, Personal Service Insurance Company is a company transacting business throughout Essex County, New Jersey.” See Pl. Compl. Defendant Personal Service Insurance Company is not included on the motion to transfer venue, nor have they filed an Answer, thus they have neither denied or conceded that they do business in Essex County. Accordingly, the Court can only determine whether Defendant Personal Service Insurance Company based off the moving papers and therefore the Court finds that Plaintiff did not provide sufficient evidence. For the foregoing reasons, Moving Defendants’ Motion to Transfer Venue to Burlington County is GRANTED.