PAUL KUEHL VS. ELECTROCORE, INC. (L-0876-19 AND L-1007-19, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2972-19
PAUL KUEHL,
Plaintiff-Appellant,
v.
ELECTROCORE, INC., FRANCIS
R. AMATO, JOSEPH P. ERRICO,
PETER S. STAATS, GLENN S.
VRANIAK, MICHAEL G. ATIEH,
NICHOLAS COLUCCI, CARRIE S.
COX, TREVOR J. MOODY,
STEPHEN L. ONDRA, MICHAEL
W. ROSS, DAVID M. RUBIN,
JAMES L.L. TULLIS, THOMAS J.
ERRICO, EVERCORE GROUP,
LLC, CANTOR FITZGERALD &
CO., JMP SECURITIES, BTIG,
LLC, CORE VENTURES II, LLC,
and CORE VENTURES IV, LLC,
Defendants-Respondents.
______________________________
SHIRLEY STONE, individually and
on behalf of all others similarly
situated,
Plaintiff-Appellant,
v.
ELECTROCORE, INC., FRANCIS
R. AMATO, GLENN S. VRANIAK,
JOSEPH P. ERRICO, NICHOLAS
COLUCCI, THOMAS J. ERRICO,
TREVOR J. MOODY, MICHAEL
W. ROSS, DAVID M. RUBIN,
JAMES L.L. TULLIS, MICHAEL
G. ATIEH, CARRIE S. COX,
STEPHEN L. ONDRA,
EVERCORE GROUP, LLC,
CANTOR FITZGERALD & CO.,
JMP SECURITIES, LLC, and BTIG,
LLC,
Defendants-Respondents.
______________________________
Argued September 27, 2021 – Decided October 8, 2021
Before Judges Rothstadt, Mayer, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket Nos. L-0876-19
and L-1007-19.
Noam Mandel (Robbins Geller Rudman & Dowd, LLP)
of the New York bar, admitted pro hac vice, argued the
cause for appellants (Cohn Lifland Pearlman Herrmann
& Knopf, LLP, Daniel A. Griffith and Kaan Eikiner
(Whiteford, Taylor & Preston, LLC), Yury A.
Kolesnikov (Bottini & Bottini, Inc.) of the California
bar, admitted pro hac vice, attorneys; Peter S.
Pearlman, Audra DePaolo, Matthew F. Gately, Daniel
A. Griffith, Kaan Ekiner, Noam Mandel, and Yury A.
Kolesnikov, on the briefs).
A-2972-19
2
Kenneth J. Pfaehler (Dentons US, LLP) of the District
of Columbia and New York bars, admitted pro hac vice,
argued the cause for respondents electroCore, Inc.,
Francis R. Amato, Joseph P. Errico, Peter S. Staats,
Glen S. Vraniak, Michale G. Atieh, Nicholas Colucci,
Carrie S. Cox, Trevor J. Moody, Stephen L. Ondra,
Michael W. Ross, David M. Rubin, James L. L. Tullis,
Thomas J. Errico, Core Ventures II, LLC, and Core
Ventures IV (Dentons US, LLP, Kenneth J. Pfaehler
and Drew Marrocco (Dentons US, LLP) of the District
of Columbia and Virginia bars, admitted pro hac vice,
attorneys; Kenneth J. Pfaehler, Jonathan S. Jemison,
Jonathan D. Henry, and Drew Marrocco, on the briefs).
Zeichner Ellman & Krause LLP, Jeffrey D. Hoschander
(Shearman & Sterling, LLP) of the New York bar,
admitted pro hac vice, and Adam S. Hakki (Shearman
& Sterling, LLP) of the New York bar, admitted pro hac
vice, attorneys for respondents Evercore Group, LLC,
Cantor Fitzgerald & Co., JMP Securities, LLC, and
BTIG, LLC (Philip S. Rosen, Adam S. Hakki, and
Jeffrey D. Hoschander, on the brief).
PER CURIAM
Plaintiffs Paul Kuehl and Shirley Stone appeal from a February 14, 2020
order dismissing their complaint with prejudice and denying as moot a motion
for leave to amend their pleadings.1 We reverse and remand.
1
The trial court consolidated plaintiffs' separate complaints into a single action.
A-2972-19
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We rely on plaintiffs' amended complaint for the facts. The facts of record
are sparse as a result of the motion judge's non-compliance with the
requirements of Rule 1:7-4(a).
Plaintiffs filed a consolidated putative class action against a manufacturer
of a migraine headache treatment device. Plaintiffs also sued some of the
manufacturers' officers, directors, underwriters, and venture capital associates.
Plaintiffs allege the manufacturer's initial public offering documents contained
materially false and misleading statements and material omissions.
Defendants moved to dismiss plaintiffs' amended complaint for failure to
state causes of action under Rule 4:6-2(e) and failure to plead fraud with
specificity under Rule 4:5-8(a). The motion judge granted dismissal of
plaintiffs' pleadings with prejudice. However, the judge did not conduct
argument on the dismissal motion and failed to issue an oral or written opinion
articulating factual findings and legal conclusions.
On appeal, plaintiffs argue the motion judge erred in granting defendants'
motion to dismiss their amended complaint with prejudice. Additionally,
plaintiffs contend the judge erred in denying as moot their motion to amend the
complaint. We agree with both arguments.
A-2972-19
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First, there was no oral argument on defendants' dismissal motion.
Defendants sought substantive, dispositive relief in seeking the dismissal of
plaintiffs' pleadings with prejudice. In the motion, defendants requested oral
argument if the motion was opposed. Because plaintiffs filed opposition, oral
argument should have been granted.
A request for oral argument on a dispositive motion should be granted as
of right. See Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003);
R. 1:6-2(d). While a trial court may deny a request for oral argument on a
substantive motion, "the reason for the denial of the request, in that
circumstance, should itself be set forth on the record." Id. at 532.
Here, the motion judge did not conduct oral argument. Nor did she offer
reasons for declining to allow oral argument.
In addition, the motion judge failed to set forth findings of fact and
conclusions of law in support of the February 14, 2020 order. A motion judge
is required to provide reasons in support of his or her decision, either on the
record or in writing.
As we said nearly twenty-five years ago,
Unfortunately, the judge made no findings of fact or
legal conclusions as required by Rule 1:6-2(f). An
articulation of reasons is essential to the fair resolution
of a case. A trial judge has a duty to make findings of
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fact and conclusions of law "on every motion decided
by written orders that are appealable as of right." R.
1:7-4. Failure to perform this duty "'constitutes a
disservice to the litigants, the attorneys and the
appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-
70 (1980) (quoting Kenwood Assocs. v. Bd. of
Adjustment of Englewood, 141 N.J. Super. 1, 4 (App.
Div. 1976)); see id. at 570 ("Naked conclusions do not
satisfy the purpose of Rule 1:7-4.").
[Italiano v. Rudkin, 294 N.J. Super. 502, 505 (App.
Div. 1996).]
"Moreover, the appellate court ordinarily cannot perform its review function in
the absence of findings." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div.
1997). We cannot review the decision of the trial court on a blank slate. Estate
of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018).
For these reasons, we are constrained to vacate the February 14, 2020
order and remand to a new judge because the judge who issued the February 14,
2020 order retired. The remand judge will address anew the issues in defendants'
motion to dismiss and plaintiffs' motion to amend the complaint. In addition,
the remand judge should conduct oral argument on defendants' substantive
dismissal motion. The remand judge is not bound by the prior judge's
disposition of the motions. We express no opinion on the outcome of the
motions upon remand.
Vacated and remanded. We do not retain jurisdiction.
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