DIANA MEY VS. ENVIRONMENTAL SAFETY INTERNATIONAL, INC. (L-3360-20, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1207-20
DIANA MEY,
Plaintiff,
v.
ENVIRONMENTAL
SAFETY INTERNATIONAL,
INC., a/k/a SEPTIC SAFETY,
a/k/a ACTIVATOR 1000, and
JOSEPH M. CARNEY,
Defendants-Appellants,
and
JOE REED,
Defendant.
____________________________
JAMES E. SHELTON,
Respondent.
____________________________
Submitted October 20, 2021- Decided November 10, 2021
Before Judges Hoffman and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3360-20.
Freeman Mathis & Gary, LLP, attorneys for appellants
(Paul Piantino, III, and Christopher Donnelly, on the
briefs).
James E. Shelton, respondent pro se.
PER CURIAM
Defendants Environmental Safety, International, Inc. and Joseph M.
Carney appeal from the August 27, 2020 order denying defendants' motion to
vacate and the September 16, 2020 order denying defendants' motion for
reconsideration. This matter stems from a foreign judgment entered against
defendant Carney in the United States District Court for the Northern District of
West Virginia. Defendants argue before us, as they did to the trial court, that
service was insufficient, and therefore the foreign judgment was void and should
have been vacated. We vacate and remand for further proceedings consistent
with our opinion.
In the West Virginia action, plaintiff Diana Mey alleged that defendants
violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and
the West Virginia Consumer Credit and Protection Act (WVCCPA), W.V.C. §
46A-6F-601, and W.V.C. § 61-3C-14a. Namely, plaintiff alleged that
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defendants made unsolicited telemarketing calls to her despite her status on the
National Do Not Call Registry.
In January 2017, plaintiff contacted defendant Carney via mail, sent to 43
Industrial Ave., Fairview, New Jersey 07022 and PO Box 397, Fairview, New
Jersey 07022, informing him that she received "anonymous unsolicited
prerecorded calls" from Environmental Safety, International, Inc. Plaintiff
alleged these calls violated the TCPA and requested $17,000 to settle the claim;
in response, defendants offered $1,500, which plaintiff rejected.
In October 2018, plaintiff filed a complaint against defendants in the
United States District Court for the Northern District of West Virginia, alleging
statutory do-not-call violations. Both the summons and the complaint were sent
to 20 Appletree Lane in Hillsdale (the Appletree Lane address), an address that
defendant Carney claims was "defunct" by then and not in use for a "number of
years." Defendant Carney filed a pro se answer to plaintiff's complaint; in his
first affirmative defense, he claimed that plaintiff failed to properly serve
process and that the court lacked jurisdiction. Defendant Carney maintains that
he was able to file a pro se answer because he was in "constant communication"
with plaintiff at his actual address, despite not receiving the summons and
complaint filed by plaintiff.
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In November 2019, plaintiff filed a motion for summary judgment. The
District Court issued a Roseboro notice to defendant Carney via certified mail
to provide notice that a summary judgment motion had been filed. See Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975) (holding that, before entering summary
judgment against a pro se party, the Court must provide the party with fair notice
of the requirements of the summary judgment rule). The notice was sent to the
same address where the summons and complaint were served: the Appletree
Lane address. On December 30, 2019, the post office returned the Roseboro
notice to the District Court, marked "unclaimed" and "unable to forward."
Notwithstanding the return of the Roseboro notice as undelivered, on
January 16, 2020, the District Court entered an order granting plaintiff's motion
for summary judgment. In its order, the court acknowledged that the Roseboro
notice "was returned as undeliverable." Nevertheless, the District Court entered
judgment in favor of plaintiff against defendant Carney in the amount of
$23,171.36; that same day, the judgment was sent by certified mail to the
Appletree Lane address. On February 4, 2020, the certified mailing was returned
to the District Court, marked "refused."
In March 2020, plaintiff assigned her judgment to James E. Shelton
(judgment creditor). In May 2020, pursuant to the Uniform Enforcement of
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Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to -33, the foreign
judgment was recorded with the Superior Court of New Jersey, Law Division,
Bergen County; the Superior Court Clerk served a Notice of Judgment Debtor
to defendant Carney at the Appletree Lane address, advising him of the foreign
judgment entered against him. Once defendants eventually received notice of
the domesticated judgment, they filed a motion to vacate the docketed judgment
in the Law Division, moving to collaterally attack the judgment due to
insufficient service of process.
On August 27, 2020, the motion judge ruled that "New Jersey is not the
proper venue for this matter," under N.J.S.A. 2A:49-25 and Rule 4:4-4, and
entered an order denying defendants' motion to vacate. Defendants filed a
motion for reconsideration, which the judge denied. The judge reconfirmed his
previous ruling that "[d]efendants' due process rights were not violated, and
judgment was properly entered in the District Court. This [c]ourt is not the
proper venue for [d]efendants to raise defenses to the West Virginia matter."
On appeal, defendants argue that service of process in the West Virginia
action was insufficient, and that they were deprived of due process. Defendants
similarly argue that they did not receive the Roseboro Notice and therefore
lacked adequate notice and an opportunity to be heard. They note that foreign
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judgments are not enforceable in New Jersey where there has been a denial of
due process.
The United States Constitution requires that “Full Faith and Credit shall
be given in each State to the public Acts, Records, and judicial Proceedings of
every other State." U.S. Const. art IV, § 1. A state must therefore enforce the
judgment of a sister state "if rendered by a court with adjudicatory authority
over the subject matter and persons governed by the judgment[.]" Baker v. Gen.
Motors Corp., 522 U.S. 222, 233 (1998). However, the requirements of the Full
Faith and Credit Clause are predicated upon the judgment debtor having been
afforded due process in the forum state. Sonntag Reporting Servs., Ltd. v.
Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005).
When a party obtains a judgment in another state, he or she may
domesticate the judgment in New Jersey pursuant to the UEFJA to facilitate its
enforcement. N.J.S.A. 2A:49A–25 to –33. Through this process, New Jersey
discharges its obligation to give full faith and credit to judgments entered in
other states. Maine v. SeKap, S.A. Greek Coop. Cigarette Mfg. Co.,
S.A., 392 N.J. Super. 227, 235 (App. Div. 2007) (quoting Singh v.
Sidana, 387 N.J. Super. 380, 382 (App. Div. 2006), certif. denied, 189 N.J. 428(2007)). Domestication of a foreign judgment, however, is not an opportunity
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to collaterally attack the foreign judgment, except in limited circumstances, such
as the denial of due process in the state issuing the judgment. McKesson Corp.
v. Hackensack Med. Imaging, 197 N.J. 262, 275 (2009).
A denial of due process occurs when "'the rendering state 1) lacked
personal jurisdiction over the judgment debtor, 2) lacked subject matter
jurisdiction, [or] 3) failed to provide the judgment debtor adequate notice and
an opportunity to be heard.'" Sonntag Reporting Servs., Ltd., 374 N.J. Super. at
538 (quoting In Sik Choi v. Kim, 50 F.3d 244, 248 (3d Cir. 1995)); McKesson,
supra, 197 N.J. at 275. "[A]bsent such due process defenses, a litigation pursued
to judgment in a sister state is conclusive of the rights of the parties in the courts
of every state as though adjudicated therein." Sonntag, supra, 374 N.J. Super. at538 (citing DeGroot, Kalliel, Traint & Conklin, P.C. v. Camarota, 169 N.J.
Super. 338, 343 (App. Div. 1979)).
Here, a remand is necessary, as the trial court failed to fully consider
whether defendants were properly served in the West Virginia action; therefore,
it likewise failed to consider whether defendants were afforded due process. In
defendant Carney's sworn certification, he stated that, although he owned the
Appletree Lane property, the address "ha[d] not been [his] residence for a
number of years."
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Fed. R. Civ. P. 4(h) governs service of out-of-state defendants in federal
court and provides:
Serving a Corporation, Partnership, or Association.
Unless federal law provides otherwise or the
defendant's waiver has been filed, a domestic . . .
corporation . . . must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1)
for serving an individual; or
(B) by delivering a copy of the summons and
of the complaint to an officer, a managing or
general agent, or any other agent authorized
by appointment or by law to receive service
of process. . . .
In turn, Fed. R. Civ. P. 4(e) provides:
Serving an Individual Within a Judicial District of
the United States. Unless federal law provides
otherwise, an individual – other than a minor, an
incompetent person, or a person whose waiver has been
filed – may be served in a judicial district of the United
States by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in the
state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
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(B) leaving a copy of each at the individual's
dwelling or usual place of abode with
someone of suitable age and discretion who
resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
Considering Fed. R. Civ. P. 4(e)(1) allows for service of process by "following
state law . . . in the state where service [was] made," we look to our New Jersey
Rules of Court. Rule 4:4-4(b)(1) provides that personal jurisdiction can be
obtained by:
(C) mailing a copy of the summons and complaint by
registered or certified mail, return receipt
requested,
and, simultaneously, by ordinary mail to:
(1) a competent individual of the age of 14 or over,
addressed to the individual's dwelling house or
usual
place of abode;
....
(3) a corporation, partnership or unincorporated
association that is subject to suit under a recognized
name, addressed to a registered agent for service, or
to
its principal place of business, or to its registered
office. . . .
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The record reveals that in the West Virginia action, service of process was
sent by mail. Thus, only our Rules of Court govern, as the Federal Rules of
Civil Procedure do not expressly permit service by mail. Although the summons
and complaint were sent by mail, it is unknown whether Rule 4:4-4(b)(1)(C) was
satisfied. As noted, defendant Carney certified that the Appletree Lane address
"has not been [his] residence for a number of years." Therefore, the record does
not show that the Appletree Lane address was defendant Carney's "dwelling
house or usual place of abode" or that the Appletree Lane address was the
principal place of business or registered office for Environmental Safety,
International, Inc. In addition, the record is insufficient to determine whether
defendant Carney waived his due process claim by filing an answer, despite the
answer containing an affirmative defense contesting the sufficiency of service
of process.
We further conclude that the motion judge did not sufficiently address the
fact that the Roseboro Notice, issued by the District Court in West Virginia, was
returned to the court as "undeliverable." The Roseboro Notice, as mandated by
the Fourth Circuit Court of Appeals, requires federal courts within the Circuit
to inform a pro se litigant of his or her obligation to respond to a motion for
summary judgment. The return of the notice as "undeliverable" constitutes
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evidence that defendants never received it. If so, defendants were arguably
denied adequate notice and an opportunity to be heard. A remand is thus
necessary for the motion judge to fully consider whether defendants were denied
adequate notice, an opportunity to be heard, and ultimately due process. While
the judge cannot vacate the default judgment obtained in West Virginia, the
judge is empowered to vacate the domesticated New Jersey judgment under the
UEFJA if defendants demonstrate they were denied due process. State of Maine
v. SeKap, S.A. Greek Co-op. Cigarette Mfg. Co., S.A., 392 N.J. Super. 227, 235-
36 (App. Div. 2007) (remanding to the trial court for a hearing on the judgment
debtor's due process challenge).
Vacated and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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