Petition for Writ of Certiorari — Alfred J. Petit-Clair, et al., Petitioners v. Gurbir Grewal, Attorney General of New Jersey, et al.

Supreme Court briefJul 30, 2018

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NO.

In the

Supreme Court of the United States

ALFRED J. PETIT-CLAIR JR. and

MATTHEW J. PETIT-CLAIR,

Petitioners,

ATTORNEY GENERAL FOR THE STATE

OF NEW JERSEY et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

Petition for Writ of Certiorari

Alfred J. Petit-Clair Jr.

Counsel of Record

313 State Street, Suite 315

Post Office Box 939

Perth Amboy, NJ 08862

(732) 826-6560

apetitclairjr@aol.com

QUESTIONS PRESENTED

Whether the U.S. Court of Appeals for the

Third Circuit erred in affirming the District Court for

the District of New Jersey's judgment dismissing with

prejudice the tort claims against one of the individual

defendants.

Whether the U.S. Court of Appeals for the

Third Circuit erred in affirming the District Court for

the District of New Jersey's judgment granting the

municipal defendant's motion to enforce settlement

with regard to the Americans with Disabilities Act

claims.

LIST OF ALL PARTIES TO THE PROCEEDING

Plaintiff

Alfred J. Petit-Clair Jr., Petitioner and

Plaintiff

Matthew J. Petit-Clair, Petitioner and

Attorney General for the State of New

Jersey, Defendant

Defendant

Comptroller for the State of New Jersey,

Defendant

Treasurer for the State of New Jersey,

City of Perth Amboy, New Jersey,

Respondent and Defendant

Defendant

State of New Jersey, Defendant

Gregory Fehrenbach, Respondent and

Joel Pabon Sr., Defendant

10.

William A. Petrick, Defendant

11.

Kenneth Balut, Defendant

12.

Wilda Diaz, Defendant

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

LIST OF ALL PARTIES TO THE

PROCEEDING . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . vii

CITATIONS OF THE OPINIONS

AND ORDERS ENTERED BELOW . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . 1

STATUTES INVOLVED IN THE CASE . . . . . . . . 1

STATEMENT OF FACTS AND

PROCEEDINGS BELOW . . . . . . . . . . . . . . 2

Dismissal Of The Tort Claims . . . . . . . . . . . 2

The Purported Settlement . . . . . . . . . . . . . . 7

The Proceedings Below . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE WRIT . . . . . . 10

TABLE OF CONTENTS (CONT'D)

Page

THE DISTRICT COURT ERRED IN

GRANTING THE MOTION TO DISMISS

THE TORT CLAIMS AGAINST

FEHRENBACH . . . . . . . . . . . . . . . . . . . . . 12

Petit-Clair Stated Plausible Tort

Claims Against Fehrenbach . . . . . . 12

Standard of Review . . . . . . . . 12

Petit-Clair

Stated

Plausible Fraud Claim

Against Fehrenbach . . . . . . . 13

Petit-Clair

Stated

Plausible Negligent

Misrepresentation Claim

Against Fehrenbach . . . . . . . 16

Alternatively, Even If Petit-Clair

Failed To State Tort Claims

Against Fehrenbach, Such Claims

Should Not Have Been Dismissed

With Prejudice . . . . . . . . . . . . . . . . . 17

Standard of Review . . . . . . . . 17

TABLE OF CONTENTS (CONT'D)

II.

Page

The District Court Abused

Its Discretion in Dismissing

the Tort Claims with

Prejudice . . . . . . . . . . . . . . . . 18

THE DISTRICT COURT ERRED IN

GRANTING THE MOTION TO

ENFORCE

SETTLEMENT

REGARDING THE ADA CLAIMS . . . . . . 21

Standard Of Review . . . . . . . . . . . . . 21

There Was No Valid And

Enforceable Settlement

Agreement Between The Parties . . 22

Petit-Clair Withdrew the

Offer to Settle Prior to the

City's Acceptance . . . . . . . . . 23

The City's Purported

Acceptance of the Offer

Failed to Include a Material

Term Thereof . . . . . . . . . . . . . 29

Several Express Conditions

Precedent to the Alleged

Settlement

Were

Unfulfilled . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

TABLE OF CONTENTS (CONT'D)

Page

APPENDIX

U.S. Court of Appeals for the Third Circuit,

Decision dated March 19, 2018 . . . . . . . . A-1

U.S. District Court for the District of New

Jersey, Decision dated August 4, 2015 . . A-12

U.S. District Court for the District of New

Jersey, Decision dated June 29, 2017 . . . A-30

U.S. Court of Appeals for the Third Circuit,

Decision dated May 15, 2018 . . . . . . . . . . A-38

Second Amended Complaint, dated April 30,

2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-40

vii

TABLE OF AUTHORITIES

Cases

Page

Adams v. Suozzi, 433 F.3d 220 (2d Cir. 2005) . . . 35

Allstate N.J. Ins. Co. v. Lajara, 222 N.J. 129,

117 A.3d 1221 (2015) . . . . . . . . . . . . . . . . . 13

Amatuzzo v. Kozmiuk, 305 N.J. Super. 469,

703 A.2d 9 (App. Div. 1997) . . . . . . . . . . . . 22

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Animal Sci. Prods., Inc. v. China Minmetals

Corp., 34 F. Supp. 3d 465 (D.N.J. 2014) . . 18

Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . 12

Banco Popular N. Am. v. Gandi, 184 N.J.

161, 876 A.2d 253 (2005) . . . . . . . . . . . . . . 13

Beverly v. Abbott Labs., 817 F.3d 328 (7th

Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Bhd. Mut. Ins. Co. v. ADT LLC, 978 F.

Supp. 2d 1001 (D. Minn. 2013) . . . . . . . . . 19

Bistrian Gravel Corp. v. Wainscott N.W.

Assocs., 116 A.D.2d 681, 497 N.Y.S.2d

748 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

viii

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Brumbaugh v. US Airways Group, Inc.,

No. 09-5981, 2011 WL 1983356

(D.N.J. May 20, 2011) . . . . . . . . . . . 21, 22, 23

Bush v. Dep't of Human Servs., No. 2:11-

CV-2612, 2013 WL 6164072 (E.D. Pa.

Nov. 20, 2013) . . . . . . . . . . . . . . . . . . . . . . . 19

Camden Bd. of Educ. v. Alexander, 181 N.J.

187, 854 A.2d 342 (2004) . . . . . . . . . . . . . . 24

Carlin v. City of Newark, 36 N.J. Super. 74,

114 A.2d 761 (Law Div. 1955) . . . . . . . . . . 30

Castrellon v. Ocwen Loan Servicing, LLC,

721 F. App'x 346 (5th Cir. 2018) . . . . . . . . 23

City of Jersey City v. Roosevelt Stadium

Marina, Inc., 210 N.J. Super. 315, 509

A.2d 808 (App. Div. 1986), cert. denied,

110 N.J. 152, 540 A.2d 156 (1988) . . . . . . . 26

CMR D.N. Corp. v. City of Philadelphia,

703 F.3d 612 (3d Cir. 2013) . . . . . . . . . . . . 18

Cooper Med. Ctr. v. Johnson, 204 N.J. Super.

79, 497 A.2d 909 (Law Div. 1985) . . . . 25, 28

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Cowell v. Palmer Twp., 263 F.3d 286 (3d

Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Cumberland Farms, Inc. v. N.J. Dep't of

Envtl. Prot., 447 N.J. Super. 423,

148 A.3d 767 (App. Div. 2016) . . 22, 24, 26, 34

DeAngelis v. Rose, 320 N.J. Super. 263,

727 A.2d 61 (App. Div. 1999) . . . . . . . . . . . 33

Duff v. Trenton Beverage Co., 4 N.J. 595,

73 A.2d 578 (1950) . . . . . . . . . . . . . . . . . . . 31

Edelstein v. City of Asbury Park, 51 N.J.

Super. 368, 143 A.2d 860 (App. Div.

1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Estate of Oliva ex rel. McHugh v. New

Jersey, 604 F.3d 788 (3d Cir. 2010) . . . . . . 19

Felipe v. 2820 W. 36th St. Realty Corp., 20

A.D.3d 503, 798 N.Y.S.2d 738 (2005) . . . . . 34

Foglia v. Renal Ventures Mgmt., LLC, 754

F.3d 153 (3d Cir. 2014) . . . . . . . . . . . . . . . . 12

Gamble v. Connolly, 399 N.J. Super. 130,

943 A.2d 202 (Civ. Div. 2007) . . . . . . . . . . . 29

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

H. Rosenblum, Inc. v. Adler, 93 N.J. 324,

461 A.2d 138 (1983) . . . . . . . . . . . . . . . . . . 16

Hedges v. United States, 404 F.3d 744 (3d

Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hill v. City of Scranton, 411 F.3d 118 (3d

Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410 (3d Cir. 1997) . . . . . . . . . . . 19

In re Caterpillar Inc., 67 F. Supp. 3d 663

(D.N.J. 2014) . . . . . . . . . . . . . . . . . . . . . 19, 20

In re Lipitor Antitrust Litig., 868 F.3d

231 (3d Cir. 2017) . . . . . . . . . . . . . . . . . 13, 15

Intarome Fragrance & Flavor Corp. v.

Zarkades, Civ. No. 07-873 (DRD),

2009 WL 931036 (D.N.J. Mar. 30,

2009) (not for publication) . . . . . . . . . . . . . 16

Jordan v. Fox, Rothschild, O'Brien &

Frankel, 20 F.3d 1250 (3d Cir. 1994) . . . . . 13

Kaufman v. i-Stat Corp., 165 N.J. 94, 754

A.2d 1188 (2000) . . . . . . . . . . . . . . . . . . . . . 16

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Kress v. LaVilla, 335 N.J. Super. 400,

762 A.2d 682 (App. Div. 2000) . . . . . . . 25, 27

Langbord v. U.S. Dep't of Treas., 832 F.3d

170 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . . . 18

Lenape Reg'l High Sch. Dist. Bd. of Educ. v.

G.P., 2010 WL 4054130 (N.J. Super.

Ct. App. Div. Aug. 23, 2010)

(unpublished opinion) . . . . . . . . . . . . . . . . . 26

Liberty Mut. Ins. Co. v. President Container,

Inc., 297 N.J. Super. 24, 687 A.2d 760

(App. Div. 1997) . . . . . . . . . . . . . . . . . . 31, 33

Lindsay v. Lewandowski, 139 Cal. App. 4th

1618, 43 Cal. Rptr. 3d 846 (2006) . . . . . . . 31

Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 85 A.3d 947 (2014) . . . . . . . . . . . . 33

Marino v. Indus. Crating Co., 358 F.3d 241

(3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . 22

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986) . . . . . . . . . . . . . 22

Mayer v. Belichick, 605 F.3d 223 (3d Cir.

2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

xii

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Midtown Props., Inc. v. Twp. of Madison,

68 N.J. Super. 197, 172 A.2d 40 (Law

Div. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Moorestown Mgmt., Inc. v. Moorestown

Bookshop, Inc., 104 N.J. Super. 250,

249 A.2d 623 (Ch. Div. 1969) . . . . . . . . . . . 32

Nationwide Emerging Mgrs., LLC v.

NorthPointe Holdings, LLC, 112

A.3d 878 (Del. 2015) . . . . . . . . . . . . . . . . . 28

New York v. Hill, 528 U.S. 110 (2000) . . . . . . . . . 18

Nolan v. Lee Ho, 120 N.J. 465, 577 A.2d

143 (1990) . . . . . . . . . . . . . . . . . . . . 22, 23, 31

Pote v. Pine Hill Mun. Utils. Ass'n, 2013 WL

3357654 (N.J. Super. Ct. App. Div.

July 5, 2013) (unpublished opinion) . . . . . 27

Racing Props., L.P. v. Baldwin, 885 So. 2d

881 (Fla. Dist. Ct. App. 2004) . . . . . . . 31, 34

Roach v. BM Motoring, LLC, 228 N.J. 163,

155 A.3d 985 (2017) . . . . . . . . . . . . . . . 30, 34

Santiago v. Warminster Twp., 629 F.3d

121 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . 12

xiii

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Schmidt v. Skolas, 770 F.3d 241 (3d Cir.

2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Seidenberg v. Summit Bank, 348 N.J. Super.

243, 791 A.2d 1068 (App. Div. 2002) . . . . . 35

Shell's Disposal & Recycling, Inc. v. City of

Lancaster, 504 F. App'x 194 (3d Cir.

2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sheridan v. NGK Metals Corp., 609 F.3d

239 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . 12

Silverstein v. Keane, 19 N.J. 1, 115 A.2d 1

(1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Sons of Thunder, Inc. v. Borden, Inc., 148

N.J. 396, 690 A.2d 575 (1997) . . . . . . . . . . 34

Tiernan v. Devoe, 923 F.2d 1024 (3d Cir.

1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Twp. of White v. Castle Ridge Dev. Corp.,

419 N.J. Super. 68, 16 A.3d 399 (App.

Div. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Washington v. Klem, 388 F. App'x 84 (3d

Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

xiv

TABLE OF AUTHORITIES (CONT'D)

Cases

Page

Weichert Co. Realtors v. Ryan, 128 N.J. 427,

608 A.2d 280 (1992) . . . . . . . . . . . . . . . . . . 29

Wells Reit II-80 Park Plaza, LLC v. Dir., Div.

of Tax'n, 414 N.J. Super. 453, 999 A.2d

489 (App. Div. 2010) . . . . . . . . . . . . . . . . . . 32

Willingboro Mall, Ltd. v. 240/242 Franklin

Ave., LLC, 421 N.J. Super. 445,

24 A.3d 802 (App. Div. 2011) . . . . . . . . . . . 32

Rules

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 15 . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . 2, 21

Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF AUTHORITIES (CONT'D)

Statutes

Page

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 794a . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

N.J. Stat. Ann. § 43:15A-7.2 . . . . . . . . . . . . . . . . 3, 4

Other

"Bad Faith," Black's Law Dictionary (10th

ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

11 Williston on Contracts § 31:6 (4th ed.

& Westlaw database updated May

2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

17A C.J.S. Contracts § 450 (Westlaw database

updated Sept. 2017) . . . . . . . . . . . . . . . . . . 28

17B C.J.S. Contracts § 961 (Westlaw database

updated Sept. 2017) . . . . . . . . . . . . . . . . . . 32

CITATIONS OF THE OPINIONS

AND ORDERS ENTERED BELOW

The U.S. Court of Appeals for the Third Circuit's

decision to affirm the trial court's judgment in this

case was unpublished but is available at 2018 WL

1768215 and is reproduced here at A-1 to A-11. The

Third Circuit's denial of the motion for rehearing in

this case was also unpublished but is reproduced here

at A-38 to A-39.

STATEMENT OF JURISDICTION

The U.S. Court of Appeals for the Third Circuit

affirmed the trial court's judgment in this matter on

April 12, 2018 and then denied rehearing on May 15,

2018. See A-1 to A-11 & A-38 to A-39, respectively.

This Petition for Writ of Certiorari was filed within 90

days from the date the Third Circuit denied the motion

for rehearing in this matter. See Sup. Ct. R. 13.1, 13.3.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTES INVOLVED IN THE CASE

In relevant part, the Federal Rules of Civil

Procedure establish that a complaint states a claim for

relief provided that it contains "(2) a short and plain

statement of the claim showing that the pleader is

entitled to relief; . . . and (3) a demand for the relief

sought." Fed. R. Civ. P. 8(a)(2)-(3). Moreover, "[n]o

technical form is required," Fed. R. Civ. P. 8(d)(1), and

"[p]leadings must be construed so as to do justice,"

Fed. R. Civ. P. 8(e).

Summary judgment is appropriate only when

"there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a).

The Americans with Disabilities Act provides

that "[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by

reason of her or his disability, be excluded from the

participation in, be denied the benefits of, . . . any

program or activity receiving Federal financial

assistance." 29 U.S.C. § 794(a). "The remedies,

procedures, and rights set forth in title VI of the Civil

Rights Act of 1964 (42 U.S.C. 2000d et seq.) . . . shall

be available to any person aggrieved by any act or

failure to act by any recipient of Federal assistance or

Federal provider of such assistance under section 794

of this title." Id. § 794a(a)(2).

STATEMENT OF FACTS AND

PROCEEDINGS BELOW

Dismissal Of The Tort Claims

In July 1990, the Petitioner, Alfred J. PetitClair Jr. ("Petit-Clair"), was hired by the Respondent,

City of Perth Amboy, New Jersey (the "City"), to serve

as the attorney for the City's Zoning Board of

Adjustment ("ZBA"). See A-13.

Petit-Clair accepted the position based upon the

package offered to him, to wit, as a permanent parttime City employee who was eligible to and did, in fact,

participate in City-provided medical and dental

coverage (for both himself and his dependents) as well

as the New Jersey Public Employees' Retirement

System ("PERS"). See A-13 to A-14.

As compensation for his services as ZBA

Attorney, Petit-Clair received a fixed salary, subject to

increases and cost of living adjustments as enjoyed by

other City employees. Specifically, the City paid PetitClair's salary every two weeks with various payroll

deductions, and at year's end, provided Petit-Clair

with an Internal Revenue Service ("IRS") Form W-2.

Additionally, however, Petit-Clair had other

duties for the ZBA that were not covered by his salary,

such as working on applications to the ZBA outside of

the public meetings and communicating with

applicants and their legal counsel. As compensation for

these additional services, the City paid Petit-Clair

pursuant to the City's Professional Fee Escrow

Ordinance.

Upon learning that the City was keen on

reducing its expenses, coupled with the fact that PetitClair's primary concern pertained to pension and

health benefits in retirement rather than to current

pay, Petit-Clair did not increase his hourly rate for his

nonsalaried work and eventually ceased billing the

City for his work outside of City Hall altogether.

The State of New Jersey conducted an

investigation into possible improper participation by

professional service providers in the state pension

system, which investigation ultimately resulted in the

enactment of N.J. Stat. Ann. § 43:15A-7.2, effective

July 1, 2008. See A-14. In relevant part, the statute

provides as follows:

A person who performed professional

services for a political subdivision of this

State . . . shall not be eligible, on the

basis of performance of those professional

services, for membership in [PERS], if

the person meets the definition of

independent contractor as set forth in

regulation or policy of the federal

Internal Revenue Service for the

purposes of the Internal Revenue Code.

N.J. Stat. Ann. § 43:15A-7.2(b).

In July 2008, the City's Interim Business

Administrator, Respondent Gregory Fehrenbach

("Fehrenbach"), not only sought to comply with the

new statutory mandate but also sought to deal with

the City's financial troubles by eliminating, or at least

minimizing, the City's expenses. See A-15.

In October 2009, the City enacted an ordinance

that limited health benefits in retirement to full-time

employees who had worked continuously for at least 25

years and were employed prior to January 1, 2008. See

A-14, A-19.

In 2011, after Petit-Clair had met the years of

service and age requirements for postemployment

pension and health-care benefits, he informed the City

that he was contemplating retirement. See A-3. At

that time, however, the City (at Fehrenbach's

direction) informed Petit-Clair that he was no longer

entitled to paid health-care benefits in retirement. See

A-3, A-15. When Petit-Clair inquired of the mayor, he

was told not to worry and that it would be

straightened out. Believing the determination was

made in error, Petit-Clair immediately withdrew his

retirement application with the intention to remain on

the job until the matter was resolved.

In 2012, Fehrenbach retained outside legal

counsel to review Petit-Clair's status with the City, but

in doing so, he provided counsel with false facts so as

to elicit a conclusion that Petit-Clair was not an

employee with, but rather an independent contractor

of, the City. See A-15, A-21. Notably, Fehrenbach did

not notify Petit-Clair of his ongoing investigation, nor

did Fehrenbach solicit any information from PetitClair in the matter.

In August 2012, the City formally notified PetitClair (and PERS) that Petit-Clair was being

retroactively removed from PERS effective January 1,

2008 and that his continued service to the City would

need to be in the form of a professional services

contract.

In February 2013, Fehrenbach collaborated with

the City's Chief Financial Officer to complete two

forms which sought to determine whether Petit-Clair

was an employee or an independent contractor. The

City's answers on the forms heavily favored a finding

of independent contractor status, and, thus, the City

concluded that Petit-Clair was an independent

contractor rather than an employee of the City.

In filling out these forms, however, Fehrenbach

answered the questions falsely and incompletely in an

effort to substantiate his desire to characterize PetitClair as an independent contractor rather than as an

employee. In depositions of Fehrenbach taken in

March 2014, Fehrenbach's falsehoods were exposed

and he admitted to numerous incorrect answers.

For instance, Fehrenbach admitted that a

former part-time prosecutor for the City who retired in

September 2009 was receiving health benefits in

retirement even though the City had adopted the

ordinance limiting health benefits in retirement to fulltime retirees three months before the former

prosecutor's retirement. Although Fehrenbach claimed

that this was an error of a staff person, six years later,

at the time of Fehrenbach's depositions, the former

prosecutor was still receiving health insurance in

retirement.

Also as part of the PERS investigation,

Fehrenbach responded to a proffered IRS

questionnaire by providing additional false and

misleading information about Petit-Clair's

employment with the City. See A-21. For instance,

Fehrenbach falsely asserted that Petit-Clair was hired

pursuant to a request for proposal when that was

clearly not the case. Moreover, Fehrenbach provided

several pieces of misleading information. For instance,

Fehrenbach asserted that the City never provided

Petit-Clair with a performance evaluation or with

vacation/sick/administrative leave; although all true,

that was solely because Petit-Clair was a part-time

employee, and the City provided those things only to

full-time employees. Similarly, Fehrenbach asserted

that Petit-Clair was appointed on a yearly basis;

although true, the undisputed evidence was that the

City routinely had appointed Petit-Clair every single

year for in excess of 25 years.

In January 2014, PERS notified Petit-Clair that

as a result of its investigation, Petit-Clair's eligibility

to participate in PERS was terminated effective

January 1, 2008.

In November 2014, Petit-Clair commenced the

instant litigation alleging, inter alia, that based upon

the above-recited actions and omissions, Fehrenbach

had tortiously injured Petit-Clair. See A-17. In August

2015, the District Court granted Fehrenbach's motion

to dismiss the claims against him, and it dismissed

those claims with prejudice. See A-3, A-22 to A-23.

The Purported Settlement

As previously noted, Petit-Clair's employment

included City-provided health-care coverage for both

himself and his dependents, including Petit-Clair's

son, Petitioner Matthew J. Petit-Clair ("Matthew").

See A-13 to A-14.

In 2007, at 17 years of age, Matthew was

diagnosed with a progressive disability that weakened

his legs. See A-16. In 2009, Matthew's condition had

progressed such that he became eligible for Social

Security disability benefits.

Since 2012, Petit-Clair has been a tenant in the

City's marina. After Superstorm Sandy destroyed the

marina, the City rebuilt the marina in 2013. Yet other

than the bathrooms, the rebuilt marina made no

provisions for disabled boaters. See A-16 to A-17.

By 2014, Matthew's disability had rendered it

difficult and dangerous for him to get on and off PetitClair's boat at the City's marina. The City repeatedly

refused Petit-Clair's requests to permit him to install

a lift at the boat dock at Petit-Clair's own expense. See

A-17, A-31.

In November 2014, Petit-Clair and Matthew

commenced the instant litigation, alleging, inter alia,

that based upon the above-recited actions and

omissions, the City had violated the Americans with

Disabilities Act ("ADA"). See A-7, A-30 to A-31.

In October 2016, the parties allegedly verbally

agreed to a settlement regarding the pending ADA

claims. See A-7 to A-8. In short, the substantive terms

of the purported agreement were as follows: (1) the

City would construct and/or install an ADA-compliant

lift for Petit-Clair's son in the marina for the start of

the 2017 boating season (i.e., April 15, 2017); and (2)

the City would pay Petit-Clair $7,500 as and for

attorney's fees. See A-31.

Shortly thereafter, however, Petit-Clair and

Matthew withdrew their purported agreement to a

settlement and sought to proceed with litigation. See

A-8, A-31. After the instant lawsuit was filed, the City

engaged in bad faith with regard to Petit-Clair and the

payment of attorney's fees due and owing for services

rendered. See A-31. Furthermore, Petit-Clair and

Matthew recognized that the installation of a lift at

the marina would not be sufficient to permit Matthew

to safely utilize the boat slip without ADA-compliant

grading of the ramp also.

Meanwhile, however, in January 2017, the City

forwarded a draft copy of a settlement agreement to

Petit-Clair for review, and in February 2017, the City

formally authorized the settlement by resolution. See

A-8, A-31 to A-32.

In March 2017, the City filed a Motion to

Enforce Settlement. See A-30, A-32. Over Petit-Clair

and Matthew's opposition, the District Court granted

the City's Motion to Enforce Settlement of the ADA

claims. See A-8, A-37.

The Proceedings Below

The District Court for the District of New Jersey

had original jurisdiction over this matter pursuant to

28 U.S.C. §§ 1331 and 1367. See A-2.

The District Court dismissed Petit-Clair's

Second Amended Complaint against Fehrenbach with

prejudice. See A-23, A-29. The District Court also

granted the City's Motion to Enforce Settlement on the

Petitioners' ADA claims. See A-30, A-37.

The Court of Appeals for the Third Circuit had

jurisdiction over this matter pursuant to 28 U.S.C. §

1291. See A-2.

The Third Circuit affirmed both of the abovereferenced decisions of the District Court and then

denied the Petitioners' Motion for Rehearing. See A-1

to A-11 & A-38 to A-39, respectively.

Thereafter, the Petitioners timely filed the

instant Petition for Writ of Certiorari. See supra

Statement of Jurisdiction.

REASONS FOR GRANTING THE WRIT

In the instant case, the District Court

committed two distinct errors, contained in two

distinct orders, both of which require that this Court

reverse and remand the case for further proceedings.

Despite the well-established standards of review for a

motion to dismiss and a motion for summary

judgment, the lower courts' decisions here have so far

departed from the accepted and usual course of judicial

proceedings (as defined by this Court and the rules

promulgated by this Court) as to call for an exercise of

this Court's supervisory power.

First, Petit-Clair stated plausible tort claims

against Fehrenbach. Liberally construing the

complaint, as amended, as required by the applicable

standard of review, Petit-Clair sufficiently stated a

claim for fraud and/or negligent misrepresentation

against Fehrenbach based on Fehrenbach's false and

misleading information about Petit-Clair's

employment status with the City, which proximately

caused Petit-Clair to lose significant retirement

benefits. Further, even if Petit-Clair's current

allegations failed to state a claim against Fehrenbach,

the District Court abused its discretion by dismissing

the tort claims with prejudice rather than allowing

Petit-Clair an opportunity to amend the allegations.

Second, there was no valid and enforceable

settlement agreement between the Petitioners and the

City regarding the ADA claims. Viewing the facts and

evidence in the light most favorable to the Petitioners,

as required by the applicable standard of review, no

reasonable factfinder could conclude that there was a

valid and enforceable contract between the parties to

settle the dispute. Substantively, this is so for any one

of three reasons: (1) the Petitioners withdrew the offer

to settle prior to the City's acceptance thereof; (2) the

City's purported acceptance failed to include a

material provision of the alleged terms of settlement;

and (3) several express conditions precedent to the

purported agreement remained unsatisfied.

With regard to both of the errors summarized

above, the Petitioners were prematurely precluded

from having their day in court. If this pattern and

practice is permitted to continue, it will have

widespread and detrimental effects on the ability of all

plaintiffs to have a full and fair trial on the merits of

their civil claims within the federal judiciary.

Accordingly, this case presents a question of

exceptional importance, potentially affecting all

persons who are or may become plaintiffs in the

federal court system.

THE DISTRICT COURT ERRED IN

GRANTING THE MOTION TO

DISMISS THE TORT CLAIMS

AGAINST FEHRENBACH

Petit-Clair Stated Plausible Tort

Claims Against Fehrenbach

Standard of Review

The party seeking dismissal "bears the burden

of showing that no claim has been presented." Hedges

v. United States, 404 F.3d 744, 750 (3d Cir. 2005). "To

survive a motion to dismiss, a complaint must contain

sufficient factual matter . . . to state a claim to relief

that is plausible on its face." Santiago v. Warminster

Twp., 629 F.3d 121, 128 (3d Cir. 2010) (quoting

Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27

(3d Cir. 2010)).

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). While "[t]he plausibility

standard is not akin to a 'probability requirement' . . .

it asks for more than a sheer possibility." Id.

Significantly, in making that determination, the

courts are "required to accept as true all allegations in

the complaint and all reasonable inferences that can

be drawn from them after construing them in the light

most favorable to the nonmovant." Foglia v. Renal

Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir.

2014) (quoting Jordan v. Fox, Rothschild, O'Brien &

Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994)).

Moreover, "[i]n deciding a Rule 12(b)(6) motion,

a court must consider only the complaint, exhibits

attached to the complaint, matters of public record, as

well as undisputedly authentic documents if the

complainant's claims are based upon these

documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d

Cir. 2010). Thus, the court "may consider documents

'integral to or explicitly referred to in the complaint'

without turning a motion to dismiss into a motion for

summary judgment." In re Lipitor Antitrust Litig., 868

F.3d 231, 250 (3d Cir. 2017) (quoting Schmidt v.

Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).

Petit-Clair

Stated

Plausible Fraud Claim

Against Fehrenbach

There are five elements of a common-law fraud

claim under New Jersey law: "(1) a material

misrepresentation of a presently existing or past fact;

(2) knowledge or belief by the defendant of its falsity;

(3) an intention that the other person rely on it; (4)

reasonable reliance thereon by the other person; and

(5) resulting damages." Allstate N.J. Ins. Co. v. Lajara,

222 N.J. 129, 147, 117 A.3d 1221, 1231 (2015) (quoting

Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73,

876 A.2d 253, 260 (2005)).

In the instant case, Petit-Clair sufficiently

alleged that Fehrenbach (1) made several material

misrepresentations of fact regarding Petit-Clair's

position as ZBA Attorney, see A-62 (¶ 13), A-64 (¶ 17);

(2) knowing them to be false, see A-62 (¶ 13), A-63 (¶

16); (3) with the intent that the City Council and PERS

rely thereon, see A-63 (¶ 16); (4) that the City Council

and PERS did, in fact, reasonably rely thereon by

reclassifying Petit-Clair as an independent contractor

rather than as an employee, see A-60 (¶ 7), A-62 (¶ 13)

to A-63 (¶ 15); and (5) Petit-Clair suffered damage

thereby when the City Council terminated Petit-Clair's

employment and retirement benefits and PERS

removed several years of earned pension credits, see A56 to A-57 (¶ 37).

Admittedly:

With allegations of fraud, "a party

must state with particularity the

circumstances constituting fraud or

mistake," although "intent, knowledge,

and other conditions of a person's mind

may be alleged generally." Fed. R. Civ. P.

9(b); see also U.S. ex rel. Moore & Co.,

P.A. v. Majestic Blue Fisheries, LLC, 812

F.3d 294, 307 (3d Cir. 2016) ("A plaintiff

alleging fraud must therefore support its

allegations 'with all of the essential

factual background that would

accompany the first paragraph of any

newspaper story—that is, the who, what,

when, where and how of the events at

issue.'" (quoting In re Rockefeller Ctr.

Props., Inc. Securities Litig., 311 F.3d

198, 217 (3d Cir. 2002))) . . . . In doing so,

"a party must plead [its] claim with

enough particularity to place defendants

on notice of the 'precise misconduct with

which they are charged.'" United States

ex rel. Petras v. Simparel, Inc., 857 F.3d

497, 502 (3d Cir. 2017) (quoting Lum v.

Bank of Am., 361 F.3d 217, 223-24 (3d

Cir. 2004), abrogated on other grounds by

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007)).

Lipitor Antitrust Litig., 868 F.3d at 249.

In the instant case, Petit-Clair clearly satisfied

this heightened pleading requirement. See A-62 (¶ 13)

("Defendant Fehrenbach . . . submitted false,

inaccurate, and incomplete factual synopsis of [PetitClair's] position . . . to . . . obtain [an] opinion . . . [that

he was] disqualified from PERS . . . [and] ineligible for

health insurance in retirement, [all with the] intent to

harm Plaintiffs."), A-63 (¶ 16) (although the ZBA hired

Petit-Clair just once, as permanent part-time employee

in 1990, pursuant to statutory authority giving the

ZBA broad discretion in such matters, "Defendant

Fehrenbach concocted Ordinance 1658-2012, enacted

on 12/27/2012, declaring that the [ZBA] shall annually

appoint and fix the compensation of its attorney" "to

make it appear as if Plaintiff is appointed for only a

one-year term"), A-64 (¶ 17) ("In 2013, Plaintiff filed an

SS-8 application with the IRS to attempt to get its

determination of his status as an employee. In

response to the IRS inquiry to Defendant City,

Defendant Fehrenbach indicated that Plaintiff's salary

covers his preparation of resolutions in his office

(which is false), and he falsely represented that if

Plaintiff is unable to attend a meeting, he must pay for

another attorney to cover him.").

Therefore, taking the factual allegations of the

Complaint as true, as the courts must on a Rule

12(b)(6) motion to dismiss, Petit-Clair sufficiently

alleged a plausible fraud claim against Fehrenbach.

Petit-Clair

Stated

Plausible Negligent

Misrepresentation Claim

Against Fehrenbach

Under New Jersey law, "[n]egligent

misrepresentation is . . . [a]n incorrect statement,

negligently made and justifiably relied on, [and] may

be the basis for recovery of damages for economic loss

. . . sustained as a consequence of that reliance."

Kaufman v. i-Stat Corp., 165 N.J. 94, 109, 754 A.2d

1188, 1195 (2000) (quoting H. Rosenblum, Inc. v.

Adler, 93 N.J. 324, 334, 461 A.2d 138, 142-43 (1983)).

"The elements of negligent misrepresentation

are essentially the same as those of common law fraud

except negligent misrepresentation does not require

scienter." Intarome Fragrance & Flavor Corp. v.

Zarkades, Civ. No. 07-873 (DRD), 2009 WL 931036, at

*12 (D.N.J. Mar. 30, 2009) (not for publication).

Indeed, "[b]ecause negligent misrepresentation does

not require scienter as an element, it is easier to prove

than fraud." Kaufman, 165 N.J. at 110, 754 A.2d at

1196.

Thus, for the same reasons specified above with

regard to fraud, so too did Petit-Clair sufficiently

allege negligent misrepresentation against

Fehrenbach. See supra Part I.A.2.

Therefore, taking the factual allegations of the

complaint as true, as the courts must on a Rule

12(b)(6) motion to dismiss, Petit-Clair sufficiently

alleged a plausible negligent misrepresentation claim

against Fehrenbach.

Alternatively, Even If Petit-Clair

Failed To State Tort Claims

Against Fehrenbach, Such Claims

Should Not Have Been Dismissed

With Prejudice

Even if the dismissal of the tort claims against

Fehrenbach were warranted, the question remains

whether such dismissal should have been with

prejudice or whether Petit-Clair should have been

permitted to file an amended complaint to remedy the

deficiencies of the previous complaint.

Standard of Review

"The Federal Rules of Civil Procedure allow for

the liberal amendment of pleadings[1] and the decision

whether such leave should be granted is 'committed to

the sound discretion of the district court.' As such, we

review a district court's determination only for abuse

See Fed. R. Civ. P. 15(a)(2) ("The court should freely give

leave when justice so requires.").

of discretion." Langbord v. U.S. Dep't of Treas., 832

F.3d 170, 188 (3d Cir. 2016) (quoting CMR D.N. Corp.

v. City of Philadelphia, 703 F.3d 612, 629 (3d Cir.

2013)).

The District Court Abused

Its Discretion in Dismissing

the Tort Claims with

Prejudice

This Court has characterized dismissal with

prejudice as a "harsh remedy." New York v. Hill, 528

U.S. 110, 118 (2000). Accordingly:

The Third Circuit has adopted a

particularly liberal approach in favor of

permitting pleading amendments to

ensure that "a particular claim will be

decided on the merits rather than on

technicalities." Dole v. Arco Chem. Co.,

921 F.2d 484, 487 (3d Cir. 1990). Indeed,

where a complaint is dismissed on Rule

12(b)(6) grounds "a District Court must

permit a curative amendment, unless an

amendment would be inequitable or

futile." Alston v. Parker, 363 F.3d 229,

235 (3d Cir. 2004) (emphasis added).

Animal Sci. Prods., Inc. v. China Minmetals Corp., 34

F. Supp. 3d 465, 515-16 (D.N.J. 2014).

In the context of a Rule 12(b)(6) motion,

"futility" means that even if amended, the complaint

would still fail to state a claim upon which relief could

be granted. See In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

In the instant case, Petit-Clair's tort claims

against Fehrenbach are not futile, because even if

somewhat vague, the allegations in the Second

Amended Complaint reflect a realistic possibility that

the facts may well establish the alleged torts. See Bhd.

Mut. Ins. Co. v. ADT LLC, 978 F. Supp. 2d 1001, 1003

(D. Minn. 2013) (dismissal without prejudice was

warranted where plaintiff's negligence allegation,

though vague, sufficiently reflected possibility that

facts might demonstrate that negligence occurred); cf.

Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir.

2001) (where the plaintiff cannot overcome a statute of

limitations, a proposed amendment would be futile).

In the context of a Rule 12(b)(6) motion,

"inequitable" means "undue delay, bad faith or dilatory

motives" by the amending party or "prejudice [to] the

other party." Hill v. City of Scranton, 411 F.3d 118,

134 (3d Cir. 2005). Here, Petit-Clair's tort claims

against Fehrenbach are not inequitable.

"Delay is 'undue' when it places an unwarranted

burden on the Court or if the plaintiff has had previous

opportunities to amend." In re Caterpillar Inc., 67 F.

Supp. 3d 663, 668 (D.N.J. 2014) (citing Estate of Oliva

ex rel. McHugh v. New Jersey, 604 F.3d 788, 803 (3d

Cir. 2010)). Even though Petit-Clair is seeking to file

a fourth amended complaint, that alone is no basis to

dismiss with prejudice. See, e.g., Bush v. Dep't of

Human Servs., No. 2:11-CV-2612, 2013 WL 6164072

(E.D. Pa. Nov. 20, 2013) (dismissing third amended

complaint without prejudice and granting plaintiff

another opportunity to amend the complaint and state

a claim upon which relief can be granted).

Moreover, there is no evidence of bad faith on

Petit-Clair's part but, rather, solely good-faith

attempts to set forth the claims in an effort to right a

perceived wrong. See "Bad Faith," Black's Law

Dictionary (10th ed. 2014) ("Dishonesty of belief,

purpose, or motive").

Nor will Fehrenbach be prejudiced by granting

Petit-Clair leave to amend.

Prejudice involves the irretrievable loss

of evidence, the dimming of witnesses'

memories, or the excessive irremediable

burdens or costs imposed on the

non-moving party if an amendment is

granted. Briscoe v. Klaus, 538 F.3d 252,

259 (3d Cir. 2008); Cureton v. NCAA, 252

F.3d 267, 273 (3d Cir. 2001). Prejudice

also may include significantly delaying

the resolution of the case. Long v. Wilson,

393 F.3d 390, 400 (3d Cir. 2004).

Incidental prejudice and delay are

insufficient grounds on which to deny

leave to amend. TransWeb, LLC v. 3M

Innovative Properties Co., C.A. No. 104413(FSH), 2011 WL 2181189, at *8

(D.N.J. June 1, 2011). None of this will

result from plaintiffs' amendment.

Caterpillar Inc., 67 F. Supp. 3d at 668.

Therefore, even assuming, arguendo, that

dismissal is appropriate for Petit-Clair's tort claims

against Fehrenbach, such dismissal should have been

without prejudice so that Petit-Clair would have had

an opportunity to cure the perceived defects in the

complaint.

II.

THE DISTRICT COURT ERRED IN

GRANTING THE MOTION TO

ENFORCE

SETTLEMENT

REGARDING THE ADA CLAIMS

Standard Of Review

"Courts treat a motion to enforce settlement

under the same standard as a motion for summary

judgment because the central issue is whether there is

any disputed issue of material fact as to the validity of

the settlement agreement." Brumbaugh v. US Airways

Group, Inc., No. 09-5981, 2011 WL 1983356, at *2

(D.N.J. May 20, 2011) (citing Washington v. Klem, 388

F. App'x 84, 85 (3d Cir. 2010) (in turn citing Tiernan v.

Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991))).

The court may grant summary judgment when

"there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a). In resolving a

motion for summary judgment, the court must

determine "whether the evidence presents a sufficient

disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail

as a matter of law." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

In making this determination, the court must

view the evidence and facts in the light most favorable

to the nonmoving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

In fact, "a district court may not make credibility

determinations or engage in any weighing of the

evidence; instead, the non-moving party's evidence 'is

to be believed and all justifiable inferences are to be

drawn in his favor.'" Brumbaugh, 2011 WL 1983356,

at *2 (quoting Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (in turn quoting Anderson, 477

U.S. at 255)).

There Was No Valid And

Enforceable

Settlement

Agreement Between The Parties

"The validity and enforceability of settlement

agreements is governed by state contract law." Shell's

Disposal & Recycling, Inc. v. City of Lancaster, 504 F.

App'x 194, 200 (3d Cir. 2012).

"A settlement agreement between parties to a

lawsuit is a contract." Cumberland Farms, Inc. v. N.J.

Dep't of Envtl. Prot., 447 N.J. Super. 423, 438, 148

A.3d 767, 776 (App. Div. 2016) (quoting Nolan v. Lee

Ho, 120 N.J. 465, 472, 577 A.2d 143, 146 (1990)).

The burden of proving that the parties entered

into a settlement agreement is upon the party seeking

to enforce the settlement. See Amatuzzo v. Kozmiuk,

305 N.J. Super. 469, 475, 703 A.2d 9, 12 (App. Div.

1997). "It is only where a contract of settlement is

actually held to exist that the party seeking to vacate

the settlement must show compelling circumstances."

Id., 703 A.2d 11-12 (citing Nolan, 120 N.J. at 472, 577

A.2d at 146).

In the instant case, the City failed to establish

on any one of three grounds a valid and enforceable

settlement agreement as a matter of law. See infra

Part II.B. At worst, there exists a genuine issue of

material fact as to the purported settlement. In either

event, there was no basis to grant the City's Motion to

Enforce Settlement. See, e.g., Brumbaugh, 2011 WL

1983356, at *3; Castrellon v. Ocwen Loan Servicing,

LLC, 721 F. App'x 346 (5th Cir. 2018).

Petit-Clair Withdrew the

Offer to Settle Prior to the

City's Acceptance

The pertinent law on contract formation has

long been well established:

"A contract arises from offer and

acceptance, and must be sufficiently

definite 'that the performance to be

rendered by each party can be

ascertained with reasonable certainty.'"

Weichert Co. Realtors v. Ryan, 128 N.J.

427, 435, 608 A.2d 280 (1992) (quoting

West Caldwell v. Caldwell, 26 N.J. 9, 2425, 138 A.2d 402 (1958)). . . . Thus, "[i]t is

requisite that there be an unqualified

acceptance to conclude the manifestation

of assent." Weichert Co. Realtors, supra,

128 N.J. at 435-36, 608 A.2d 280 (quoting

Johnson & Johnson [v. Charmley Drug

Co., 11 N.J. 526, 539, 95 A.2d 391

(1953)]). "In the very nature of the

contract, acceptance must be absolute"

and "unequivocally shown." Johnson &

Johnson, supra, 11 N.J. at 538, 95 A.2d

391.

Cumberland Farms, 447 N.J. Super. at 439, 148 A.3d

at 776.

Moreover, "parties in New Jersey are . . .

presumed to have contracted with reference to the

existing law." Camden Bd. of Educ. v. Alexander, 181

N.J. 187, 195, 854 A.2d 342, 347 (2004) (quoting

Silverstein v. Keane, 19 N.J. 1, 13, 115 A.2d 1, 7

(1955)). Being that the City is a municipal corporation,

the City has limited authority in how it goes about

taking certain actions.

"It is axiomatic that municipal

bodies in this State have no powers other

than those granted by the Legislature,

and must perform their prescribed

activities within the statutory ambit."

Sinclair Refining Co. v. County of

Bergen, 103 N.J.Super. 426, 433, 247

A.2d 484 (App.Div.1968), certif. denied,

53 N.J. 272, 250 A.2d 136 (1969).

"[T]here is no inherent right of local

self-government. Municipalities are but

creatures of the State, limited in their

powers and capable of exercising only

those powers of government granted to

Sussex

Woodlands, Inc. v. Mayor and Council of

West Milford, 109 N.J.Super. 432, 434them

the

Legislature."

35, 263 A.2d 502 (Law Div.1970) (citation

and internal quotation marks omitted).

Kress v. LaVilla, 335 N.J. Super. 400, 409-10, 762 A.2d

682, 687 (App. Div. 2000).

As is relevant here, although "a municipal

corporation may, generally speaking, deal with its

contracts and adjust and settle claims against it in the

same manner as a natural person," Edelstein v. City of

Asbury Park, 51 N.J. Super. 368, 389-90, 143 A.2d 860,

872 (App. Div. 1958), the power of a municipality to

enter into contracts is limited by the authority granted

to it by the Legislature, and the Legislature has

provided that a municipality can "'only act by

resolution or ordinance,'" Kress, 335 N.J. Super. at

411, 762 A.2d at 687 (quoting Midtown Props., Inc. v.

Twp. of Madison, 68 N.J. Super. 197, 208, 172 A.2d 40,

46 (Law Div. 1961)). See also Cooper Med. Ctr. v.

Johnson, 204 N.J. Super. 79, 82, 497 A.2d 909, 910

(Law Div. 1985) ("It is well settled that a municipal

corporation cannot be bound in contract, express or

implied, unless the officer or employee has authority to

enter into such a contract on behalf of the corporation.

. . . The authority to contract on behalf of a

municipality is vested solely in the governing body of

that municipality.").

In the instant case, before the City adopted a

resolution approving the proposed settlement, Petit-

Clair rescinded his offer and thus thwarted the

purported agreement.

Accordingly, Petit-Clair withdrew his offer to

settle the matter prior to the City's acceptance thereof.

See, e.g., Cumberland Farms, 447 N.J. Super. at 439,

148 A.3d at 776 (a state agency did not accept citizen's

offer to settle their dispute and, thus, no enforceable

settlement agreement was created where the state

employees did not have authority to unilaterally enter

into a binding settlement agreement); Lenape Reg'l

High Sch. Dist. Bd. of Educ. v. G.P., 2010 WL 4054130,

at *4 (N.J. Super. Ct. App. Div. Aug. 23, 2010)

(unpublished opinion) ("In this case, we have no

indication that the district's board of education

formally approved the agreements it now seeks to

enforce. Without the board's express and formal

approval, no contract can be deemed legally

enforceable.").

In the decision(s) below, the courts ruled that

the parties had previously verbally agreed to the

settlement. See A-8 to A-11, A-33. Significantly,

however, the courts' analysis skips over the threshold

issue of the City's limitations as a municipal

corporation, i.e., the City could not take any action,

including entering into an enforceable contract to

settle the parties' dispute, absent a resolution or

ordinance. See City of Jersey City v. Roosevelt

Stadium Marina, Inc., 210 N.J. Super. 315, 327, 319,

509 A.2d 808, 815, 811 (App. Div. 1986) (given that

"municipalities can ordinarily act only by adoption of

an ordinance or resolution at a public meeting," "it

would seem to be belaboring the obvious to observe

that formal governmental action was required to

approve a settlement" ), cert. denied, 110 N.J. 152, 540

A.2d 156 (1988); accord Pote v. Pine Hill Mun. Utils.

Ass'n, 2013 WL 3357654 (N.J. Super. Ct. App. Div.

July 5, 2013) (unpublished opinion) (affirming trial

court's denial of plaintiff's motion to enforce settlement

where plaintiff failed to establish that the parties had

entered into a verbal settlement agreement between

the respective attorneys given that the utility never

obtained municipal approval therefor).

Indeed:

"Any exercise of a delegated power by a

municipality in a manner not within the

purview of the governing statute is

capricious and ultra vires of the

delegated powers." Giannone v. Carlin,

20 N.J. 511, 517, 120 A.2d 449 (1956). "A

municipality in exercising the power

delegated to it must act within such

delegated power and cannot go beyond it.

Where the statute sets forth the

procedure to be followed, no governing

body, or subdivision thereof, has the

power to adopt any other method of

procedure." Midtown Properties, Inc.,

supra, 68 N.J. Super. at 207, 172 A.2d 40.

Kress, 335 N.J. Super. at 410-11, 762 A.2d at 687.

And, as previously noted, a municipal contract

can only be authorized by ordinance or resolution of

the governing body. See id. at 411, 762 A.2d at 687;

Cooper Med. Ctr., 204 N.J. Super. at 82, 497 A.2d at

910. Thus, the City's purported

acceptance was a legal nullity.

preresolution

Also in its opinions, the courts below ruled that

the passage of a municipal resolution approving the

settlement was merely an implied condition precedent

of the settlement contract. See A-9 to A-10, A-34 to A35. Once again, however, this skips over the threshold

matter of the City's limitations as a municipal

corporation. See supra discussion in text.

"Traditionally, the general rule that prohibits a

court from rewriting the parties' agreement while

purporting to construe it also prevents a court from

adding terms or provisions to the contract." 11

Williston on Contracts § 31:6 (4th ed. & Westlaw

database updated May 2017) (footnotes omitted);

accord Nationwide Emerging Mgrs., LLC v.

NorthPointe Holdings, LLC, 112 A.3d 878, 897 (Del.

2015) ("An interpreting court cannot use an implied

covenant to re-write the agreement between the

parties[.]").

Clearly, if the parties truly intended for the

agreement to be contingent upon such an implied

term, the parties easily could have so stated in their

express agreement. See 17A C.J.S. Contracts § 450

(Westlaw database updated Sept. 2017) ("A condition

precedent may not be implied when it might have been

seen and provided for by express agreement." (footnote

omitted)).

Thus, the judicial imposition of an implied

condition precedent to the alleged contract here is

wholly unwarranted. See, e.g., Bistrian Gravel Corp.

v. Wainscott N.W. Assocs., 116 A.D.2d 681, 681, 497

N.Y.S.2d 748, 749 (1986) ("[T]he oral agreement

between the parties did not make approval of the fire

department a condition precedent for payment [and

thus] the trial court properly refused to construe the

parties' agreement as being conditioned upon an

implied duty to obtain such fire department

approval.").

The City's Purported

Acceptance of the Offer

Failed to Include a

Material Term Thereof

It is a fundamental concept of contract law that

"there must be an unqualified acceptance of the offer

for there to be a contract." Gamble v. Connolly, 399

N.J. Super. 130, 141, 943 A.2d 202, 208 (Civ. Div.

2007) (citing Weichert Co. Realtors v. Ryan, 128 N.J.

427, 608 A.2d 280 (1992)).

In the instant case, Petit-Clair made an offer to

the City to settle the litigation if the City would agree

to pay Petit-Clair $7,500 in legal fees as well as

construct and install an ADA-compliant lift in the

municipal marina so that Matthew could use and enjoy

the marina slip. Yet the City Council's purported

formal approval of the alleged settlement of this

matter by resolution authorized only the monetary

payment of $7,500 and was silent as to the

construction and/or installation of an ADA-compliant

lift.

Accordingly, the City resolution was not an

unqualified acceptance of the Petit-Clairs' offer but,

rather, was a counteroffer. See Carlin v. City of

Newark, 36 N.J. Super. 74, 89, 114 A.2d 761, 768 (Law

Div. 1955) ("A qualified or conditional acceptance

containing terms and conditions not found in the

original proposal may operate as a counter-offer but

does not constitute an acceptance and does not result

in the formation of a valid contract binding upon the

parties.").

Given that Matthew was unable to utilize the

marina slip without the ADA-compliant lift, such term

was clearly essential to the Petit-Clairs' offer of

settlement. See Roach v. BM Motoring, LLC, 228 N.J.

163, 174-75, 155 A.3d 985, 991-92 (2017) ("'[A] breach

is material if it goes to the essence of the contract.'

Ross Sys. v. Linden Dari–Delite, Inc., 35 N.J. 329, 341,

173 A.2d 258 (1961). To determine if a breach is

material, we adopt the flexible criteria set forth in

Section 241 of the Restatement (Second) of Contracts

(1981) . . . [which includes] 'the extent to which the

injured party will be deprived of the benefit which he

reasonably expected[,]' quoting Restatement (Second)

supra, § 241(a).").

Thus, the City's purported approval of the

proposed settlement failed to include a material

provision of the agreed terms of settlement. "In the

event of a 'breach of a material term of an agreement,

the non-breaching party is relieved of its obligations

under the agreement.'" Id. at 174, 155 A.3d at 991

(quoting Nolan, 120 N.J. at 472, 577 A.2d at 146); see

also Racing Props., L.P. v. Baldwin, 885 So. 2d 881,

883 (Fla. Dist. Ct. App. 2004) ("To ignore one term of

the agreement, but uphold the others, would be

tantamount to the creation of a new contract.").

Accordingly, even the City's formal resolution

purporting to approve the alleged settlement is invalid

and/or defective. See, e.g., Beverly v. Abbott Labs., 817

F.3d 328, 334 (7th Cir. 2016) (applying Illinois law)

(the omission of a material term in a settlement

agreement renders the agreement unenforceable);

Lindsay v. Lewandowski, 139 Cal. App. 4th 1618,

1622, 43 Cal. Rptr. 3d 846, 849-50 (2006) ("A

settlement agreement, like any other contract, is

unenforceable if the parties fail to agree on a material

term or if a material term is not reasonably certain.";

holding that a stipulated settlement agreement was

unenforceable due to an uncertainty regarding a

material term thereof).

Several Express Conditions

Precedent to the Alleged

Settlement

Were

Unfulfilled

"The parties to a contract 'may make

contractual liability dependent upon the performance

of a condition precedent.'" Liberty Mut. Ins. Co. v.

President Container, Inc., 297 N.J. Super. 24, 34, 687

A.2d 760, 766 (App. Div. 1997) (quoting Duff v.

Trenton Beverage Co., 4 N.J. 595, 604, 73 A.2d 578,

583 (1950)).

"A condition precedent is a fact or event . . .

which must exist or occur before there is a right to

immediate performance, before there is a breach of

contract duty or before the usual judicial remedies are

available." Moorestown Mgmt., Inc. v. Moorestown

Bookshop, Inc., 104 N.J. Super. 250, 262, 249 A.2d 623,

630 (Ch. Div. 1969).

In the instant case, in January 2017, the City

provided Petit-Clair with a written copy of the

proposed settlement agreement. See Full and Final

Release of Plaintiffs' ADA Claims & Settlement Agrmt.

(the "Writing").

Although the initial settlement terms were

verbal, the Writing may be considered as evidence of

the parties' intent regarding their oral agreement. See

17B C.J.S. Contracts § 961 (Westlaw database updated

Sept. 2017) ("Where the existence of an alleged oral

contract is in issue in the case, and the making of such

a contract is disputed, all the . . . facts connected with

the history of the transaction, . . . including written

proposals . . . , even though never completed, are

admissible in the case." (footnotes omitted)); see also

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC,

421 N.J. Super. 445, 453, 24 A.3d 802, 807 (App. Div.

2011) ("The addition of terms to effectuate the

settlement that do not alter the basic agreement will

not operate to avoid enforcement of an agreement to

settle a litigated matter.").

Alternatively, the Writing may be considered a

modification of the previous oral terms of the

agreement. See Wells Reit II-80 Park Plaza, LLC v.

Dir., Div. of Tax'n, 414 N.J. Super. 453, 465-66, 999

A.2d 489, 497 (App. Div. 2010) ("New Jersey has long

recognized the ability to modify one's contract, [which]

can be proved by . . . 'the actions and conduct of the

parties.'" (quoting DeAngelis v. Rose, 320 N.J. Super.

263, 280, 727 A.2d 61, 70 (App. Div. 1999))).

In either event, the Writing states, in relevant

part, that "this Agreement is made conditional upon

[(1)] Plaintiffs' receipt of a fully executed original of

this Agreement and [(2)] receipt of the [$7,500]

payment[] . . . and [(3)] the execution of a consent order

[regarding the settlement of the subject litigation]."

Written Agrmt. ¶ 1(c).

Accordingly, the Writing states, in plain and

unambiguous terms, that the "Agreement is made

conditional upon" the happening of the abovedescribed three events, meaning that those three

events are conditions precedent to a binding and

enforceable contract. See Manahawkin Convalescent

v. O'Neill, 217 N.J. 99, 118, 85 A.3d 947, 958-59 (2014)

("If the language of a contract 'is plain and capable of

legal construction, the language alone must determine

the agreement's force and effect.'" (quoting Twp. of

White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68,

74-75, 16 A.3d 399, 403 (App. Div. 2011))); Liberty

Mut. Ins., 297 N.J. Super. at 34, 687 A.2d at 766

(although conditions precedent are not favored, they

will be enforced if clearly intended).

Significantly, none of the three conditions

precedent noted in the Writing has occurred.

Accordingly, the purported agreement is not a valid

and binding contract. See, e.g., Cumberland Farms,

447 N.J. Super. at 440-41, 148 A.3d at 777 ("[T]he

draft agreement expressly stated that the settlement

would not be effective until it was executed by both

parties. . . . Because neither party signed the

marked-up version of the agreement . . . there was no

final, enforceable contract between the parties.");

Felipe v. 2820 W. 36th St. Realty Corp., 20 A.D.3d 503,

503, 798 N.Y.S.2d 738, 738 (2005) (the delivery of a

fully executed copy of the contract was a condition

precedent to the formation of a binding contract, and,

thus, vendor's failure to deliver a copy to the

purchasers precluded an action by the purchasers to

enforce the purported contract); Racing Props., 885 So.

2d at 882-83 (purported settlement agreement was

rendered unenforceable by lender's failure to timely

complete required documentation, which was a

condition precedent under the agreement).

The lower courts held that these conditions

precedent were not satisfied only because of PetitClair's actions and omissions. See A-11. Indeed, the

duty of good faith and fair dealing is an implied

covenant in all contracts "that neither party shall do

anything which will have the effect of destroying or

injuring the right of the other party to receive the

fruits of the contract." Roach, 228 N.J. at 175, 155 A.3d

at 992 (quoting Sons of Thunder, Inc. v. Borden, Inc.,

148 N.J. 396, 420, 690 A.2d 575, 587 (1997) (in turn

quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117,

130, 207 A.2d 522, 531 (1965))).

Yet Petit-Clair's conduct did not destroy or

injure the City's rights because there was no valid and

enforceable contract between the parties in the first

place. See supra Part II; cf. Seidenberg v. Summit

Bank, 348 N.J. Super. 243, 258, 791 A.2d 1068, 1076

(App. Div. 2002) ("[T]he implied covenant requires that

a contracting party act in good faith when exercising

. . . discretion in performing its contractual

obligations[.]" (emphasis added)).

In any event, at least one of the conditions

precedent (for the City to pay Petit-Clair $7,500) was

not satisfied solely due to the City's own actions and

omissions; Petit-Clair's conduct had absolutely nothing

to do with the failure to satisfy that condition

precedent.

Although the City finally paid Petit-Clair the

$7,500 in April 2017, that was only after Petit-Clair

had withdrawn his offer to settle the case. See supra

Part II.B.1.

Accordingly, the City's purported

compliance with the condition precedent was too late

to be effective. See, e.g., Adams v. Suozzi, 433 F.3d

220, 227-28 (2d Cir. 2005) (applying New York law).

CONCLUSION

In light of the foregoing arguments and

authorities cited, the Petitioners respectfully request

that a writ of certiorari issue to review the judgment

of the U.S. Court of Appeals for the Third Circuit on

the questions presented herein.

/s/ Alfred J. Petit-Clair Jr.

Alfred J. Petit-Clair Jr.

Counsel of Record

313 State Street, Suite 315

Post Office Box 939

Perth Amboy, NJ 08862

(732) 826-6560

apetitclairjr@aol.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.