Opposition Brief — Salzano v. North Jersey Media Group, Inc.

\ Supreme Court, US.

\} FILED

No. 10-616 DEC 29 20.)

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

¢

THOMAS JOHN SALZANO,

Petitioner,

NORTH JERSEY MEDIA GROUP INC.,

dba THE RECORD, et al.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court OF NEw JERSEY

BRIEF IN OPPOSITION

JENNIFER A. Borc BRUCES. ROSEN

DINA L. SFORZA Counsel of Record

NORTH JERSEY KATHLEEN A. HIRCE

Mepia Group INC. McCusker, ANSELMI,

Legal Departmeuit RosEN & CaARVELLI, PC

1 Garret Mountain Plaza 210 Park Avenue

PO. Box 471 Suite 301

Woodland Park, NJ 07424 Florham Park, NJ 07932

(973) 569-7680 (973) 635-6300

brosen@marc-law.com

Attorneys for Respondents

233795 g

OUNSEL PRESS

(800) 274-3321 * (800) 359-6859

I].

III.

QUESTIONS PRESENTED

Whether the Petitioner presented compelling

reasons to grant the Petition, where the Petition

does not implicate an important federal question

that has not been settled by this Court and where

the Petition is interlocutory?

Whether the Petitioner presented compelling

reasons to grant the Petition, where the holdings

of the Supreme Court of New Jersey are based on

state common law and do not conflict with a

decision of this Court or a Court of Appeals?

Whether the Petitioner presented compelling

reasons to grant the Petition, where Petitioner is

asking this Court to review the factual and legal

determinations of the Supreme Court of New

Jersey, where that Court ruled that (1) the State

common law fair report privilege applies as a

conditional privilege only until a court determines

that the report was fair, accurate and complete,

when the privilege then becomes absolute; (2) the

initial pleadings exception for the fair report

privilege contained in the Restatement (Second)

of Torts § 611 (e) would thwart the public policy

underpinning of the fair report privilege, the free

flow of information based upon state defamation

law; and, (3) allegations against Petitioner

contained in a Complaint filed on behalf of the U.S.

Trustee in Bankruptcy Court “fitted comfortably

within the definition” * the word “steal,” which

was used in a news report to describe the contents

of that Complaint.

CORPORATE DISCLOSURE

ati d/b/a

as

Respondent North Jersey Media Gro lp |

he Record and northjersey COm 18 a wholly owned

ubsidiary of Macromedia Incorporated, a privately held

company, and there is no publicly held company that

owns 10% or more of its stock

TARLE OF CONTENTS

CORPORATE DISCLOSI

TABLE OF CONTE!

TABLE OF CITED AUTHORITII

INTRODUCTION

THE PETITION SHOULD BE DENIE]

BECAUSE THIS COURT LACK

JURISDICTION TO DECIDE THE ISSUE

PRESENTED B PETITIONER

SALZANO

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Cited Authorities

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Senna v. Florimont,

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STATUTES

i305. Comet, BION. Lvs kn ke dc cancsessen 3, 12, 14

Oe ee eee OS a cs ok a eh ee eee 13

ee ee Sh oes ee eee ede ee eee 8

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OTHER AUTHORITIES

Restatement (Second) of Torts § 611 (a) ....... 7

Restatement (Second) of Torts § 611 (e) ....... 1,6

Robert D. Sack, Sack ON DEFAMATION: LIBEL,

SLANDER, AND RELATED PROBLEMS § 7:3.5[B][8]

eG I ey ee eee ere ed 10

Rodney A. Smolla, Law oF DEFAMATION § 8.67

(Thomson Reuters/West, 2d ed. 2008) ....... 2

INTRODUCTION

Pro se Petitioner has presented no “compelling

reasons” for granting of his Petition for a Writ of

Certiorarz. In fact, the Petition does not meet any of

this Court’s criteria for grant of the Writ: the Petition

does not implicate an important federal question left

unsettled by this Court, it does not address a conflict

between the Courts of Appeals, and finally, it is

interlocutory, coming after resolution of a motion to

dismiss the case in the Supreme Court of New Jersey,

which remanded the remaining portion of this matter

back to the trial court for further proceedings.

This matter involves pure application of state

defamation law by a state’s highest tribunal in

dismissing most of Respondent’s claims under the fair

report privilege. The Supreme Court of New Jersey

made three rulings in this matter. First, it unanimously

recognized a national trend among state courts

interpreting their common and statutory law by holding

that the fair report privilege applies to news reports of

initial complaints, even if those initial filings have not

been the subject of “judicial action,” thus rejecting an

exception that is contained in the Restatement (Second)

of Torts § 611 (e). Second, the high court, also

interpreting New Jersey common law, unanimously

adopted the modern view that fair report is a “hybrid”

of a “conditional” and “absolute” privilege; that is, a news

report is conditionally privileged until a court has ruled

that it is full, fair, and accurate, at which time it becomes

absolutely privileged and cannot be overcome by a

showing of actual malice.

?

Finally, the New Jersey court split 3-3 on whether

the privilege applied to this case; that is, whether the

“sist” or “sting” of the news reports at issue was any

worse than the serious allegations made against

Respondent in the Complaint filed by the U.S. Trustee

in the involuntary bankruptcy of NorVergence, a

Newark, N.J. telecommunications company controlled

by Petitioner’s family. However, because the New Jersey

intermediate court, the Appellate Division of the

Superior Court, had ruled affirmatively that the “gist”

or “sting” of the news reports was no worse than the

language in the Complaint, that portion of the Appellate

Division decision was upheld and most of the claims were

dismissed.

There can be no dispute that the fair report

privilege is a common law privilege, and not a

constitutional defense. As the Supreme Court of New

Jersey noted below:

The fair-report privilege is considered to be

“one of the most powerful and frequently

invoked common-law defenses.” Rodney A.

Smolla, LAw OF DEFAMATION § 8.67 (Thomson

Reuters/West, 2d ed. 2008) and is widely

recognized in judicial decisions and by statute.

[n.2] The fair report privilege has been

recognized by common law or statute in at

least forty seven states and the District of

Columbia.

Petitioner’s Appendix (“Pet. App.”) at 18a (balance of

footnote omitted from quotation).

”

oO

In his argument seeking this Court’s review,

Petitioner confuses the jurisdictional requirement of a

conflict among the Federal Circuits with a conflict among

the states (or a conflict among Federal Circuits

interpreting state law). While many states have slight

variations in their fair report privilege, none of these

variations involves a federal question, and a conflict

among the states regarding state common law issues is

not a compelling reason to accept this Petition. These

variations clearly fall within this Court’s holding in Gertz

v. Robert Welch, Inc., 418 U.S. 323, 347 (1974), that

States are free to make their own standaras regarding

libel law so long as they do not impose strict liability.

Equally unavailing is Petitioner’s argument

confusing the First Amendment “conditional privilege”

imposed by the actual malice standard, which

“immuniz[es] non-malicious misstatements of fact

regarding the official conduct of a government officer”

as set forth in New York Times Co. v. Sullivan, 376 U.S.

254 (1964) (and expanded, by its progeny, to publie

figures and certain matters of public concern), with the

“conditional privilege” of a fair report, whereby in many

states actual malice can overcome a fair report. In his

bewilderment, Petitioner equates New Jersey’s “ecision

to end years of conflicting rulings regarding whether

the State’s fair report privilege was a conditional

privilege, with somehow violating this Court’s

precedents and undercutting reputational protections

for plaintiffs, which he purports are provided by the

actual malice standard. This position constitutes nothing

more than a fundamental misunderstanding of both the

actual malice doctrine and common law privileges as they

are examined in cases Petitioner cites; it does not

present a valid reason for this Court to grant the

Petition.

Finally, Petitioner desperately attempts to conjure

a federal question by asking this Court to review the

lower court’s determination that the Trustee’s

allegations against Petitioner—of fraudulent transfer,

common Jaw conversion, misappropriation and unjust

enrichment—carried the same “gist” or “sting” as

references in headlines and in the body of the news

reports at issue. Because a State court’s defamation

law analysis touched upon terms used in bankruptcy

law, however, does not mean that a federal question

exists. Further, Petitioner’s argument, carried to its

logical extension, would require that journalists

essentially be lawyers, and would permit the fair report

privilege only where journalists specifically and exactly

define allegations of bankruptcy fraud according to

definitions propounded by a federal court. This onerous

and unprecedented burden for the media would

eliminate the current standard of “substantial accuracy”

in determining whether a report is full, fair and

accurate. In any event, examination of this issue

involves focusing on interpretation of state common law

outside of any federal constitutional framework, a

practice in which this Court does not engage.

In sum, Petitioner has failed completely to carry his

burden of demonstrating that there are compelling

reasons for this Court to grant the Petition.

Accordingly, the Petition should be denied.

STATEMENT OF THE CASE

On March 1, 2006, the U.S. Trustee for New Jersey,

through counsel, publicly filed a Complaint that

Petitioner “unlawfully diverted, converted and

misappropriated” approximately $470,000 from

NorVergence, a bankrupt Newark, N.J. company

controlled by his family, “fe his own personal benefit,”

which included the purchase of a residence and charging

personal expenses to a corporate charge card, with no

intention of reimbursing NorVergence. Pet. App. at 5a

ba, 76a-77a.

The news reports at issue were published on the

business pages of The Record, which covers northern

New Jersey news, and were reprinted on

northjersey.com and in the Glen Ridge Voice, each

published by Respondent North Jersey Media Group

Ine. (““NJMG”). Pet. App. at 6a-9a. The reports followed

the U.S. Federal Trade Commission’s $181.7 million

default judgment against NorVergence anu the abrupt

involuntary bankruptcy of the company, which coincided

with the loss of approximately 1,300 jobs and the

dislocation of thousands of small businesses dependent

on its telecommunications services. Jd. at 4a, 8a.

Together, all of these events made publication of

information involving NorVergence’s bankruptcy

indisputably a matter of public concern.

Petitioner’s Complaint for defamation, invasion of

yrivacy, and infliction of emotional distress alleges that

the news reports implied that he was criminally charged

with theft; specifically, Petitioner alleges that references

in headlines and in the body of these news reports, such

6

as “Man accused of stealing $500,000 for high living,”

and “Argyle residence allegedly bought with stolen

funds” were defamatory per se because use of the words

“stealing” and “stolen funds” impute criminal conduct

and stray from the narrow legal definitions of “fraudulent

transfer.” /d. at 9a-10a. In fact, the allegations in the

news reports wer broader than simply “fraudulent

transfer,” and were clearly attributed to information

contained in the Trustee’s Complaint, which was filed

in the czv2l U.S. Bankruptcy Court, and which

allegations accused Petitioner of taking funds with the

intent not to repay them. /d. at 5a-6a, 76a-77a.

Moreover, the news reports carried no mention of an

arrest, a criminal charge or potential charge, any

potential penalties, or the name of a governmental

authority that would bring such a charge, such as the

U.S. Attorney’s Office.

Among other defenses, Respondents asserted the

fair report privilege. Pet. App. at lla. The trial court

summarily dismissed the Complaint, ostensibly as a fair

report, ruling that the news reports accurately

described the Trustee’s Complaint and, thus, there was

no falsity and no actionable defamation. /d. at 100a.

The Appellate Division reversed, ruling that while the

news reports were full, fair, and accurate, they were not

eligible for fair report protection because they were

based on an initial complaint against Petitioner that had

not yet been subjected to “judicial action.” Jd. at 78a-

8la. The news reports were, therefore, excepted from

the fair report privilege pursuant to Restatement

(Second) of Torts § 611 (e). Pet. App. at 78a-8la. The

appellate panel also ruled that under New Jersey law,

the news reports were a matter of publie concern

requiring Petitioner to prove actual malice. /d. at 88a.

7

Both parties sought review in the Supreme Court

of New Jersey, which granted certification. That Court

first stayed, then unanimously reversed, the appellate

panel’s holding that the initial filing exception to fair

report exists in New Jersey, instead adopting the

modern view that no such exception exists. /d. at 13a,

30a-3la. The Court then further clarified years of

conflicting decisions regarding whether fair report was

a conditional or absolute privilege and unanimously held,

in accord with Restatement (Second) of Torts § 611 (a),

that the fair report privilege:

is neither fish nor fowl—that is, it is neither

purely absolute nor purely conditional.

Rather, it is a hybrid; it is conditional insofar

as it cannot attach unless the report is full,

fair, and accurate. Once that condition is met,

the privilege becomes absolute and cannot be

defeated. The publisher’s failure to do what

is necessary to make the report full, fair, and

accurate is the only relevant inquiry.

Pet. App. at 40a-41la. Finally, the Court split 3-3 on

whether the “gist” or “sting” of the news reports was

any worse than the significant allegations against

Respondent contained in the Trustee’s Complaint. Jd.

at 32a-35a, 48a. Because of the Court’s deadlock on this

issue, the Appellate Division’s previous ruling that the

“gist” or “sting” of the news reports was no worse than

the Complaint against Petitioner was upheld. /d. at 46a.

Thus, the Supreme Court of New Jersey dismissed

all claims regarding news reports of the U.S. Trustee’s

filing, remanding the one remaining claim—libel and

8

associated torts related to the news reports’ description

of Charity Snack, a separate business venture between

Petitioner and his father—back to the trial court. /d.

at 46a. The Supreme Court of New Jersey denied a

subsequent motion by Petitioner asking it to reconsider

its finding that the news report was protected by the

fair report privilege. /d. at 102a.

REASONS FOR DENYING THE PETITIOT’

THE PETITION SHOULD BE DENIED BECAUSE

THIS COURT LACKS JURISDICTION TO DECIDE

THE ISSUES PRESENTED BY PETITIONER

SALZANO.

The decisions of the New Jersey courts below do

not conflict with a decision of this Court or any Court of

Appeals, nor do they implicate a federal question that

has not been decided by this Court. Accordingly,

Petitioner has not carried his burden of demonstrating

any “compelling reason” for his Petition to be granted.

See Sup. Ct. R. 10.

I. The Instant Matter Does Not Involve a Question

of Federal Law.

Petitioner Salzano improperly cites 28 U.S.C. § 1254

(“Courts of appeals; certiorari; certified questions”) as

the basis for this Court’s jurisdiction over his Petition.

That statute describes the methods by which this Court

may review federal appellate cases. Since this matter

involves a decision of state law by the Supreme Court

of New Jersey, the question of jurisdiction is properly

~y

viewed through the requirements of 28 U.S.C. § 1257

9

(“State courts; certiorari”). As this Court has continually

recognized, its jurisdiction over decisions of state courts

has been limited by Congress to include only those cases

involving a question of federal law and a final judgment

by a state’s highest court. See, e.g., Jefferson v. City of

Tarrant, 522 U.S. 75, 80-81 (1997) (noting both that

“Congress has vested in this Court authority to review

federal question decisions made by state courts|[]” and

that “Congress has limited that power to cases in which

the State’s judgment is final.”). Finality—which is not

present in this case—will be discussed further below.

The more immediate flaw in the instant Petition is the

lack of a federal question. Pursuant to 28 U.S.C. § 1257,

this Court may review only final judgments of a state’s

highest court:

where the validity of a treaty or statute of the

United States is drawn in question or where

the validity of a statute of any State is drawn

in question on the ground of its being

repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set

up or claimed under the Constitution or the

treaties or statutes of, or any commission held

or authority exercised under, the United

States.

The instant Petition evokes none of these criteria.

As noted, this case involves the application of New

Jersey’s common law fair report privilege. Thus, on the

most basic level, this case does not involve a state

statute “repugnant to the Constitution, treaties, or laws

of the United States” and does not meet the

jurisdictional mandate of 28 U.S.C. § 1257.

10

Petitioner’s attempts to paint this matter as

involving a federal question are unpersuasive. To the

extent Petitioner attempts to fashion the fair report

issue as an “overwhelming” area of national divide, he

is misguided. All of the decisions cited by Petitioner

claiming a purported “conflict” requiring resolution of

this Court are state or federal cases deciding state

common law defamation; this Court has never

determined the fair report privilege to be a federal

issue. Petition (“Pet.”) at 17-19. As Judge Sack

succinctly noted in his defamation treatise: “The

constitutional status of the fair report privilege is

uncertain; the Supreme Court has not treated the

matter directly.” Robert D. Sack, Sack ON DEFAMATION:

LIBEL, SLANDER, AND RELATED PROBLEMS § 7:3.5/ B][8] (4th

ed. 2010) (footnote omitted). Thus, without any

constitutional or federal statutory issue, this matter

does not properly fall within this Court’s jurisdiction.

Nor does Petitioner’s invocation of this Court’s

jurisprudence regarding application of the actual malice

doctrine as a “conditional” check on defamatory

publication transform his arguments into a federal]

question. As explained above, Petitioner confuses the

“conditional privilege” imposed by the actual malice

standard, as set forth in New York Times, supra, 376

U.S. 254, with the “conditional privilege” of a fair report,

which in some states means that actual malice can

overcome a fair report. Pet. at 26, 30. Here, the

Supreme Court of New Jersey ended years of conflicting

rulings within the State regarding whether actual malice

could defeat the State’s fair report privilege. Pet. App.

at 38a, 40a-4la. The court ruled that once the report is

determined by a court to be full, fair, and accurate, “the

1]

privilege becomes absolute and cannot be defeated.”

Pet. App. at 40a-41la. Petitioner essentially argues that

by creating an “absolute” state common law privilege,

as exists in many states, the Supreme Court of New

Jersey violated this Court’s precedents and undercut

reputational protections for plaintiffs, which he

purports are provided by the actual malice standard.’

Pet. at 30.

Thus, in a fanciful attempt to turn state common

law defamation on its head, Petitioner urges this Court

to “strike a proper balance of preserving individual

reputation with freedom of speech and the press” (Pet.

at 20) by federalizing and limiting the common law fair

report privilege. Not only does this assertion belie the

rationale behind the actual malice standard, which is

designed to provide more breathing room for speech on

matters of public concern through a higher standard of

proof for libel plaintiffs, but it also completely

undermines the rationale for the fair report privilege,

without which it would be practically impossible for the

media to cover publie events, particularly court

activities, which are naturally imbued with defamatory

allegations.

1. Petitioner - who argues strenuously against the actual

malice standard applying to him — nevertheless creates out of

whole cloth the baseless notion that this Court’s actual malice

standard extends to the state common law privilege in reverse,

by reducing protections for the media in a sort of “good for the

goose, good for the gander,” parity. Pet. at 25-26, 30. This

nonsensical interpretation of the law ignores this Court's

holding in Gertz, supra, 418 U.S. at 345-46, permitting states to

“retain substantial latitude in their efforts to enforce a legal

remedy for defamatory falsehood injurious to the reputation of

a private individual.” (emphasis added),

13

for the States. Gertz, supra, 418 U.S. at 347. Petitioner

acknowledges this in a roundabout way when he

concedes that the United States Supreme Court cases

he cites do no more than “demonstrate compelling

evidence that imply the fair report privilege should only

command protection as a conditional privilege and will

always be defeated by a showing of actual malice.” Pet.

at 30. In fact, as explained above, these cases do nothing

of the sort.

Petitioner further unsuccessfully attempts to twist

his argument into a federal question by insinuating that

the New Jersey courts created an issue of federal law

by mistakenly interpreting how the term “fraudulent

transfer” is defined by federal courts and statutes. The

New Jersey courts below ruled that a fair report existed

because allegations made against Petitioner by the

Trustee involving fraudulent transfer, common law

conversion, misappropriation, and unjust enrichment,

carry the same “gist” or “sting” as references in

headlines and in the body of the news reports at issue,

such as “Man accused of stealing $500,000 for high

living,” and “Argyle residence allegedly bought with

stolen funds.” While this determination—including how

much reliance should be placed on court interpretations

of the statute—is clearly a matter of state common law,

Petitioner claims that based on federal decisions that

narrowly define the bankruptcy law violation of

“fraudulent transfer,” 11 U.S.C. § 548, the courts below

should have required Respondents to characterize the

Trustee’s allegations against Petitioner only according

to the exact definitions propounded by a federal court.

Pet. at 36.

14

Petitioner’s theory of the law would eviscerate any

notion of substantial accuracy, which is a hallmark not

only of the fair report privilege but also of determining

whether a statement is capable of a defamatory

meaning. Neither this, nor any other court, has ever

placed such an onerous burden on the news media. See,

e.g., Costello v. Ocean County Observer, 136 N.J. 594,

619 (1994) (noting “we realize that journalists are not

lawyers by trade. Errors in reports on court

proceedings are bound to occur from time to time, and

the First Amendment protects those errors as long as

they are not recklessly or intentionally made.”); Racci

v. Venture Magazine, Inc., 574 F. Supp. 1563, 1568 (D.

Mass. 1983) (“courts hearing defamation claims are to

apply a common sense standard of expected lay

interpretation of media reports of trials, rather than

inquiring whether a report was strictly correct in

defining legal charges and describing legal! rulings.”).

Additionally, Petitioner’s acknowledgment that

“{ajlthough the {Supreme Court of New Jersey] majority

correctly observed the [fair report] privilegel’]s legal

requirements [ ] it failed to faithfully apply said

principles to the matter at hand[,]” Pet. at 30, is yet

another sure sign that this Petition seeks review of an

issue this Court rarely entertains. See Sup. Ct. R. 10

(“A petition for a writ of Certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule

of law.”). Even if the Supreme Court of New Jersey

decision was erroneous, which it was not, it is not the

type of error reviewed by this Court.

II. The Instant Matter Involves An Interlocutory

Decision.

This Court has recognized that its jurisdiction over

decisions of the state courts is limited by the “firm final

judgment rule[]” of 28 U.S.C. § 1257. Jefferson, supra,

522 U.S. at 81. Before a state court judgment may be

reviewed, it “must be final ‘in two senses: it must be

subject to no further review or correction in any other

state tribunal; it must also be final as an effective

determination of the litigation and not of merely

interlocutory or intermediate steps therein.” /d.

(quoting Market St. R.R. Co. v. R.R. Comm’n of Cal.,

324 U.S. 548, 551 (1945)). In short, the judgment “must

be the final word of a final court.” Jefferson, supra, 522

U.S. at 81 (quoting Market St. R.R. Co., supra, 324 U.S.

at 551). The instant matter is far from “the final word

of a final court.”

Indeed, the Supreme Court of New Jersey

essentially affirmed the appellate court’s ruling that,

with respect to the remaining claim regarding Charity

Snack, the case must be remanded to the trial court

due to the “paucity of the record” below, and directed

that the Law Division should “apply the standard set

out in Senna [v. Florimont, 196 N.J. 469 (2008)] and

may address any other issues raised by either party

specific to the Charity Snack claim.” Pet. App. at 45a-

46a. Further proceedings, including an answer,

discovery, motion practice and potentially a trial, will

occur in this case (and a case management conference

was held with the trial judge on December 3, 2010 to

discuss scheduling of these proceedings); as such, the

judgment of the Supreme Court of New Jersey was not

16

final, and this Court should respectfully deny the

Petition. Jefferson, supra, 522 U.S. at 81 (holding that

case was outside the Court’s jurisdiction and noting

particularly that “[ajbsent settlement or further

dispositive motions, the proceedings on remand will

include a trial on the merits of the state-law claims.”).

Finally, while this Court has recognized four

exceptions to the final judgment rule, which exceptions

allow review notwithstanding a remand and future

proceedings in state court, the instant matter does not

fall within one of those very narrow categories — each

requiring the involvement of a federal issue, which, as

explained above, does not exist here. Cox Broad. Corp.

v. Cohn, 420 U.S. 469, 479-83 (1975); see also Johnson v.

California, 541 U.S. 428, 430-32 (2004) (citing Cox

Broad-asting for descriptions of the narrow categories

aud ultimately determining that the Court lacked

jurisdiction). Thus, this Petition simply cannot — and

does not - involve a situation (1) where there will be

further proceedings, even a trial, but “for one reason

or another the federal issue is conclusive or the outcome

of further proceedings preordained”; (2) where the

federal issue “finally decided by the highest court in the

State, will survive and require decision regardless of

the outcome of future state-court proceedings”; (3)

where if Salzano “ultimately prevails on the merits, the

federal issue will be mooted” but if he were to lose, “the

governing state law would not permit him again to

present his federal claims for review.” Cox Broad. Corp.,

supra, 420 U.S. 479-81. Nor, finally is this a situation

where, (4):

17

|T}he federal issue has been finally decided

in the state couits with further proceedings

pending in which the party seeking review

here might prevail on the merits on nonfederal

grounds, thus rendering unnecessary review

of the federal issue by this Court, and where

reversal of the state court on the federal issue

would be preclusive of any further litigation

on the relevant cause of action rather than

merely controlling the nature and character

of, or determining the admissibility of evidence

in, the state proceedings still to come.

Id. at 482-83.

In short, the case being appealed from is a state

court decision on a matter of state law, in a case that is

now the subject of ongoing proceedings. It is not

properly within the jurisdiction of this Court and as such,

the Petition must, respectfully, be denied.

18

CONCLUSION

Petitioner has failed to provide a jurisdictional basis

or compelling reason for this Court to grant the Petition

for Certiorari. Respondents, therefore, respecifully

request that the Petition be denied.

Respectfully submitted,

BRUCE S. ROSEN

Counsel of Record

KATHLEEN A. HIRCE

McCusker, ANSELMI, ROSEN &

CARVELLI, PC

210 Park Avenue, Suite 301

Florham Park, N.J. 079382

(973) 635-6300

brosen@marc-law.com

JENNIFER A. BorG

Dina L. SFORZA

Nortu JERSEY Mepia Group Inc.

Legal Department

1 Garret Mountain P'sza

PO. Box 471

Woodland Park, N.J. 07424

(973) 569-7680

Attorneys for Respondents