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BUR L 000638-18 01/15/2021 Pg 1 of3 Trans ID: LCV2021185267
BURLINGTON COUNTY SUPERIOR COURT
J AN 15 2021
James J. Ferrelli, J.S.C.
EDITED BY THE COURT
JEFFREY BELLO SUPERIOR COURT OF NEW JERSEY
Plaintiff LAW DIVISION
BURLINGTON COUNTY
Vs. Docket No.: L-638-18
CADILLAC, a division of GENERAL
MOTORS COMPANY, et al., GENERAL
MOTORS HOLDINGS, LLC, GENERAL
MOTORS, LLC, HOLMAN CADILLAC,
a division of HOLMAN AUTOMOTIVE,
INC., ESIS, INC. a wholly owned
Subsidiary of THE CHUBB CORPORATION Civil Action.
KERBECK CADILLAC, INC., GENERAL
MOTORS FINANCIAL COMPANY,
a wholly owned Subsidiary of
GENERAL MOTORS COMPANY
AIRSEPT, INC., PRODUCT DEFENSE
INVESTIGATIVE SERVICES, LLC; MARY
T. BARRA, DANIEL E. BERCE, MELINDA
K. HOLMAN, MICHAEL SCHWAB, ORDER VACATING OCTOBER 23, 2020
STEVEN MADDERN, CHRIS C. ROFFEY, ORDER AWARDING COUNSEL FEES
JOSHUA PREISTER, TAMMY WARD, AGAINST PLAINTIFF
JOHN NEVITT, PATRICK RONALD
BURLEY , JOHN/JANE DOES #1-10
and/or ABC CORPORATIONS #1-10
Fictitious Corporations and/or Commercial
Entities, j/s/a
THESE MATTERS being brought before the Court by Jeffrey Bello, Pro Se Plaintiff, on a
Motion for Reconsideration of the Court’s October 23, 2020 Order; Contempt of Court; Fraud Upon the
Court and Default (“Motion for Reconsideration”); and the Court having considered the parties’ written
submissions, and having heard oral argument on January 14, 2021 in the presence of Plaintiff Jeffrey
Bello, appearing Pro Se on his own behalf, Monica Marisco, Esq., attomey for Defendants GM LLC,
ESIS, Holman Cadillac, and Kerbeck Cadillac, Anne Dalena, Esq., attorney for Airsept Inc., and Greyson
VanDyke, Esq., attorney for GM Financial, and for the reasons stated below and good cause shown;
IT IS, on this 15" day of January 2021,
BUR L 000638-18 01/15/2021 Pg 2 of3 Trans ID: LCV2021185267
ORDERED that Plaintiff's Motion for Reconsideration is hereby GRANTED
IN PART, and the
award of fees and costs in the amount of $1,938.70 granted by this Court in its October 23, 2020 Order is
hereby VACATED. All other relief sought by Plaintiff in the Motion for Reconsideration is DENIED
for the reasons stated on the record inasmuch as the record does not demonstrate a basis for a finding of
contempt of court, that a fraud has been perpetrated upon the Court, or for entry of default against the
Defendants.
IT IS FURTHER ORDERED that a copy of this Order shall be served upon all parties within
seven (7) days within the posting of this Order to eCourts.
FINDINGS AND LEGAL ANALYSIS
The Court’s October 23, 2020 Order awarding counsel fees and costs (“Fees”) against Plaintiff
did not give due regard to the fact that the Defendants failed to follow the express requirements of New
Jersey Court Rule 4:19 in serving their Notice of Vocational Examination upon Plaintiff on September 9,
2020 for the scheduled October 8, 2020 examination. Rule 4:19 requires that “[t]he time for the
examination stated in the notice shall not be scheduled to take place prior to 45 days following
the service of the notice, and a party who receives such notice and who seeks a protective order
shall file a motion therefor, retumable within said 45-day period.”
It is undisputed that the Defendants here did not provide the Plaintiff with 45 days’ notice
of the examination and also filed their Motion to Compel which resulted in the award of Fees in
less than 45 days as well. Further, as of September 9, 2020, the date Defendants served the
Notice of Vocational Examination for October 8, 2020, the Defendants had more than 45 days
before the November 15, 2020 deadline for completion of the defense IMEs. Also, it should be
noted that the Plaintiff did attend without objection two other IMEs (Neurological Examination
and Neuropsychiatric Examination) for which notices were served by Defendants on September
1, 2020 and which provided more than 45 days’ notice in accordance with Rule 4:19.
BUR L 000638-18 01/15/2021 Pg 3 of3 Trans ID: LCV2021185267
It was entirely appropriate for the Defendants to seek a vocational expert examination of
the Plaintiff based upon the Plaintiff's economic loss claim in this case. Further, the Court’s
rejection of Plaintiff's objection to such examination based upon his doctors’ prior conclusions
or determinations and/or prior findings of disability was correct based upon the law applicable to
the scope of discovery in this matter.
Nevertheless, a prerequisite to an award of Fees under the circumstances is the moving
party’s compliance with the express terms of the applicable Court Rule, Rule 4:19. The
language of Rule 4:19 is clear and unequivocal: the examination in the notice “shall not be
scheduled to take place prior to 45 days following the service of the notice.” Without the
Plaintiff's agreement or permission from the Court, Defendants did not have authority under
Rule 4:19 to unilaterally schedule the vocational examination on less than 45 days written notice
to the Plaintiff.
The Rules are to be followed by all parties. It is particularly critical in a hotly contested
case such as this that the Rules be followed in order to minimize conflicts and disruption of the
legal process. The Court finds that it is “palpably incorrect and irrational,” D’ Atria v. D’ Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990) as well as unjust under the circumstances to a self:
represented litigant who is clearly experiencing financial hardship to award the Defendants
Fees based upon Plaintiff's alleged failure to comply with Rule 4:19 when the Defendants
themselves did not comply with the express terms of the very Court Rule upon which they rely
for their remedy. Accordingly, the Court VACATES the portion of the October 23, 2020 Order
ordering Plaintiff to pay Defendants’ fees and costs in the amount of $1,938.70.
oO
irre
CANE ). Ferrekle __
JAMES, 7FERRELLI,
taal S:
(X) Opposed (_ ) Unopposed
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BUR L 000638-18 01/15/2021 Pg 1 of3 Trans ID: LCV2021185267 BURLINGTON COUNTY SUPERIOR COURT J AN 15 2021 James J. Ferrelli, J.S.C. EDITED BY THE COURT JEFFREY BELLO SUPERIOR COURT OF NEW JERSEY Plaintiff LAW DIVISION BURLINGTON COUNTY Vs. Docket No.: L-638-18 CADILLAC, a division of GENERAL MOTORS COMPANY, et al., GENERAL MOTORS HOLDINGS, LLC, GENERAL MOTORS, LLC, HOLMAN CADILLAC, a division of HOLMAN AUTOMOTIVE, INC., ESIS, INC. a wholly owned Subsidiary of THE CHUBB CORPORATION Civil Action. KERBECK CADILLAC, INC., GENERAL MOTORS FINANCIAL COMPANY, a wholly owned Subsidiary of GENERAL MOTORS COMPANY AIRSEPT, INC., PRODUCT DEFENSE INVESTIGATIVE SERVICES, LLC; MARY T. BARRA, DANIEL E. BERCE, MELINDA K. HOLMAN, MICHAEL SCHWAB, ORDER VACATING OCTOBER 23, 2020 STEVEN MADDERN, CHRIS C. ROFFEY, ORDER AWARDING COUNSEL FEES JOSHUA PREISTER, TAMMY WARD, AGAINST PLAINTIFF JOHN NEVITT, PATRICK RONALD BURLEY , JOHN/JANE DOES #1-10 and/or ABC CORPORATIONS #1-10 Fictitious Corporations and/or Commercial Entities, j/s/a THESE MATTERS being brought before the Court by Jeffrey Bello, Pro Se Plaintiff, on a Motion for Reconsideration of the Court’s October 23, 2020 Order; Contempt of Court; Fraud Upon the Court and Default (“Motion for Reconsideration”); and the Court having considered the parties’ written submissions, and having heard oral argument on January 14, 2021 in the presence of Plaintiff Jeffrey Bello, appearing Pro Se on his own behalf, Monica Marisco, Esq., attomey for Defendants GM LLC, ESIS, Holman Cadillac, and Kerbeck Cadillac, Anne Dalena, Esq., attorney for Airsept Inc., and Greyson VanDyke, Esq., attorney for GM Financial, and for the reasons stated below and good cause shown; IT IS, on this 15" day of January 2021, BUR L 000638-18 01/15/2021 Pg 2 of3 Trans ID: LCV2021185267 ORDERED that Plaintiff's Motion for Reconsideration is hereby GRANTED IN PART, and the award of fees and costs in the amount of $1,938.70 granted by this Court in its October 23, 2020 Order is hereby VACATED. All other relief sought by Plaintiff in the Motion for Reconsideration is DENIED for the reasons stated on the record inasmuch as the record does not demonstrate a basis for a finding of contempt of court, that a fraud has been perpetrated upon the Court, or for entry of default against the Defendants. IT IS FURTHER ORDERED that a copy of this Order shall be served upon all parties within seven (7) days within the posting of this Order to eCourts. FINDINGS AND LEGAL ANALYSIS The Court’s October 23, 2020 Order awarding counsel fees and costs (“Fees”) against Plaintiff did not give due regard to the fact that the Defendants failed to follow the express requirements of New Jersey Court Rule 4:19 in serving their Notice of Vocational Examination upon Plaintiff on September 9, 2020 for the scheduled October 8, 2020 examination. Rule 4:19 requires that “[t]he time for the examination stated in the notice shall not be scheduled to take place prior to 45 days following the service of the notice, and a party who receives such notice and who seeks a protective order shall file a motion therefor, retumable within said 45-day period.” It is undisputed that the Defendants here did not provide the Plaintiff with 45 days’ notice of the examination and also filed their Motion to Compel which resulted in the award of Fees in less than 45 days as well. Further, as of September 9, 2020, the date Defendants served the Notice of Vocational Examination for October 8, 2020, the Defendants had more than 45 days before the November 15, 2020 deadline for completion of the defense IMEs. Also, it should be noted that the Plaintiff did attend without objection two other IMEs (Neurological Examination and Neuropsychiatric Examination) for which notices were served by Defendants on September 1, 2020 and which provided more than 45 days’ notice in accordance with Rule 4:19. BUR L 000638-18 01/15/2021 Pg 3 of3 Trans ID: LCV2021185267 It was entirely appropriate for the Defendants to seek a vocational expert examination of the Plaintiff based upon the Plaintiff's economic loss claim in this case. Further, the Court’s rejection of Plaintiff's objection to such examination based upon his doctors’ prior conclusions or determinations and/or prior findings of disability was correct based upon the law applicable to the scope of discovery in this matter. Nevertheless, a prerequisite to an award of Fees under the circumstances is the moving party’s compliance with the express terms of the applicable Court Rule, Rule 4:19. The language of Rule 4:19 is clear and unequivocal: the examination in the notice “shall not be scheduled to take place prior to 45 days following the service of the notice.” Without the Plaintiff's agreement or permission from the Court, Defendants did not have authority under Rule 4:19 to unilaterally schedule the vocational examination on less than 45 days written notice to the Plaintiff. The Rules are to be followed by all parties. It is particularly critical in a hotly contested case such as this that the Rules be followed in order to minimize conflicts and disruption of the legal process. The Court finds that it is “palpably incorrect and irrational,” D’ Atria v. D’ Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) as well as unjust under the circumstances to a self: represented litigant who is clearly experiencing financial hardship to award the Defendants Fees based upon Plaintiff's alleged failure to comply with Rule 4:19 when the Defendants themselves did not comply with the express terms of the very Court Rule upon which they rely for their remedy. Accordingly, the Court VACATES the portion of the October 23, 2020 Order ordering Plaintiff to pay Defendants’ fees and costs in the amount of $1,938.70. oO irre CANE ). Ferrekle __ JAMES, 7FERRELLI, taal S: (X) Opposed (_ ) Unopposed