CONSOLIDATED RAIL v. ALLIANCE SHIPPERS

Filing 79

OPINION. Signed by Judge Dickinson R. Debevoise on 6/12/2015. (anr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CONSOLIDATED RAIL CORPORATION,

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Plaintiff,
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v.
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ALLIANCE SHIPPERS, INC.,
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Defendant.
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__________________________________________:

Civ. No. 93-1327 (DRD)
OPINION

APPEARANCES:
RONALD HOROWITZ, ESQ.
2561 Moody Blvd., Suite D
Flagler Beach, FL 32136
Attorney for Third Party Plaintiff, Alliance Shippers, Inc.
JOHN DECINA
889 Gregory Drive
Brick, NJ 08723
Third Party Defendant Pro Se
JOSEPH PETER HOWARD, ESQ.
1101 Kings Highway N., Suite 402
Cherry Hill, NJ 08034
Attorney for Third Party Defendant, Gary A. Feldman
Debevoise, Senior U.S. District Judge
On February 14, 1996, this Court entered a judgment in favor of Third Party Plaintiff
Alliance Shippers, Inc., in the sum of $80,000 against John Decina, Gary Feldman, Resource
Management, Inc., and Environmental Transport, jointly and severally, together with punitive
damages in the amount of $40,000 against John Decina and punitive damages in the amount of
$40,000 against Gary Feldman. On August 25, 1998, a partial satisfaction of judgment in the sum

of $4,100 and release of lien from certain real property was entered as to John Decina. On March
5, 2015, Alliance Shippers filed a motion to renew and revive the judgment for an additional 20
years. By Order and accompanying Opinion entered on April 17, 2015, this Court denied the
motion without prejudice.
Presently before the Court are two motions filed by Alliance Shippers: a second motion to
renew and revive the judgment in favor of Alliance Shippers in the sum of $120,000 against John
Decina and Gary Feldman and a motion to enforce litigants rights seeking an order compelling
Gary Feldman to immediately furnish the answers required by an information subpoena or be held
in contempt of Court. For the reasons set forth below, the Court will deny both motions.
BACKGROUND
After a bench trial, on February 14, 1996, this Court entered a judgment in favor of Alliance
Shippers, Inc., in the sum of $80,000 against John Decina, Gary Feldman, Resource Management,
Inc., and Environmental Transport, jointly and severally, together with punitive damages in the
amount of $40,000 against John Decina and punitive damages in the amount of $40,000 against
Gary Feldman.

(ECF Nos. 66, 74-3 at 2-3.) On August 25, 1998, the Court entered a partial

satisfaction of judgment in the sum of $4,100 and release of lean from certain real property as to
John Decina. (ECF No. 68.)
On March 5, 2015, Alliance Shippers filed its first motion for an order renewing and
reviving the judgment, accompanied by a certification of counsel and a letter memorandum. (ECF
No. 70.) Relying on 28 U.S.C. § 1962 and N.J. Stat. Ann. § 2A:18-44, Alliance Shippers asked
this Court to revive and renew the judgment in the sum of $120,000 on the grounds that the 20year limitations period for reviving the judgment had not expired, good cause existed for reviving
and renewing the judgment at issue, and the judgment debtors - John Decina and Gary Feldman -

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had notice of the motion to renew and revive the judgment. By Order and Opinion entered on
April 17, 2015, this Court denied the motion without prejudice because Alliance Shippers had not
proved the unpaid balance, accounted for the partial satisfaction and the release with respect to
Decina’s property, or shown that there was no outstanding impediment to judicial enforcement, as
required by New Jersey law. (ECF Nos. 72, 73.)
On May 4, 2015, Alliance Shippers filed the present motion to revive the judgment in the
sum of $120,000 against Decina and Feldman. In counsel’s certification supporting the motion
counsel states that on August 25, 1998, a partial satisfaction of judgment was entered in the sum
of $4,100 and a release of the lien from certain unidentified property was entered as to Decina.
Counsel avers that on March 31, 2015, Alliance Shippers and John Decina executed a stipulation
of settlement. The stipulation of settlement, which is attached to counsel’s certification, states that
on February 14, 1996, Alliance Shippers obtained a judgment against John Decina in the principal
sum of $120,000; “the parties have agreed on certain terms and conditions to satisfy the said
judgment;” and, “for good and valuable consideration, hereby exchanged, the parties agree to settle
the judgment for $100,000,” provided Decina paid $75,000 on or before March 30, 2015, and
$25,000 by September 10, 2015. (ECF No. 75-3 at 9.) The stipulation further states: Alliance
Shippers will release its judgment lien from Decina’s principal residence located in New Jersey,
provided Decina makes the second payment; Decina consents to Alliance domesticating and
recording the judgment in the appropriate court in Florida, such that the judgment will act as a
judgment lien on Decina’s property in Florida; Decina will not challenge the Florida judgment
lien; and, in the event Decina fails to pay the $100,000 in accordance with the terms of the
settlement, Alliance Shippers “can resume execution proceedings in New Jersey on the entire
judgment less payments made[.]” Id. at 10. Counsel for Alliance Shippers avers that Decina paid

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$75,000 on or about April 2, 2015, and that, if Decina fails to make the final $25,000 payment,
then the balance due on the judgment against Decina will be $101,369.26, inclusive of interest.
Alliance Shippers also filed a motion to enforce litigant’s rights seeking an order
compelling Gary Feldman to furnish answers to questions attached to an information subpoena
and to hold him in contempt if he fails to do so. Counsel for Alliance Shippers avers that on April
6. 2015, he served Feldman by email addressed to Feldman’s attorney an information subpoena
with attached questions.1 Alliance Shippers’ counsel states that counsel for Feldman sent a
responding email stating that on April 24, 2015, Feldman received “a dismissal notice from the
court [and, b]ased on the court notice, we are not going to respond.” (ECF No. 74-3 at 13.)
Counsel for Alliance Shippers states that, as of April 30, 2015, he had not received the answers to
the questions attached to the information subpoena.
Feldman filed opposition to the motion to revive the judgment. (ECF No. 76.) Feldman
primarily argues that, since $80,000 of the judgment was a joint and several award against two
companies and two persons, Feldman should receive some credit against the joint and several
portion of the judgment for money paid by Decina to satisfy the judgment. Counsel for Feldman
states that Feldman is exploring options to reopen a Chapter 13 bankruptcy which was discharged
on October 11, 1996, and to insert this judgment debt.

Alliance Shippers filed a reply

memorandum arguing that, even if some of the payments made by Decina should be credited to
Feldman, such payments do not a legal basis to prevent the renewal of the judgment, as “once the
judgment is renewed and revived, it is subject to payments made on account thereof.” (ECF No.
77 at 1.)

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The information subpoena was attached to the certification but the questions were not.
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DISCUSSION
A.

Motion to Revive Judgment
The judgment in favor of Alliance Shippers consists of $80,000 against John Decina, Gary

Feldman, Resource Management, Inc., and Environmental Transport, jointly and severally,
punitive damages in the amount of $40,000 against John Decina, and punitive damages in the
amount of $40,000 against Gary Feldman. The judgment will not expire until February 14, 2016,
20 years after entry on February 14, 1996. Alliance Shippers acknowledges that the judgment has
been satisfied in part by payments by Decina of $4,100 in 1998 and $75,000 in April 2015. In
addition, the stipulation of settlement signed by Decina and the attorney representing Alliance
Shippers states that Alliance Shippers has agreed to settle the $120,000 judgment against Decina
for $100,000 (inclusive of the $75,000 Decina paid in April 2015), provided Decina pays the
remaining $25,000 by September 10, 2015. Given that the judgment has been satisfied in part,
Alliance Shippers is not entitled to revival of the judgment in the full amount ($80,000 jointly and
severally against John Decina, Gary Feldman, Resource Management, Inc., and Environmental
Transport; $40,000 punitive against Decina; and $40,000 punitive against Feldman). In addition,
the $120,000 judgment against Decina will be satisfied in full pursuant to the express terms of the
stipulation of settlement if Decina makes the final payment of $25,000 by September 10, 2015.
Under these circumstances, and because the amount paid against the judgment is not clear at this
point, revival of the judgment eight months before it expires is premature. The unpaid balance
will be known well before the judgment is set to expire on February 14, 2016, and Alliance
Shippers will remain free to show, after September 10, 2015, that the judgment is valid, subsisting,
and remains unpaid in part. See Adamar v. New Jersey, Inc., v. Mason, 399 N.J. Super. 63, 67
(App. Div. 2008); Kronstadt v. Kronstadt, 238 N.J. Super. 614, 618 (App. Div. 1990).

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This Court notes the contention of Alliance Shippers that Decina’s payments toward the
$80,000 joint and several judgment do not provide “a legal reason to prevent the renewal and
revival of the judgment [against Feldman]. At most, [such payments] could act as a limitation on
the extent of the enforcement of the judgment against [Feldman].” (ECF No. 77 at 1.) Alliance
Shippers provides no legal authority to support this contention. In the absence of unambiguous
legal authority, which authority the Court’s independent research has not revealed, the Court is not
prepared to revive a judgment in the amount of $120,000 against Feldman or Decina when the
original judgment has been satisfied in part by payments from Decina. This Court’s research
indicates that, at a minimum, Feldman is entitled to receive credit, prior to revival, against the
$80,000 joint and several judgment for Decina’s payments in excess of the punitive damages award
against Decina.2 And if Decina were to comply with the stipulation of settlement by paying
$25,000 by September 10, 2015, then the $80,000 joint and several judgment would appear to be
satisfied in full by virtue of the settlement, to the effect that the only judgment subject to revival
would be the punitive damages judgment of $40,000 against Feldman.3

New Jersey “follows the general rule that a claimant is entitled to only one satisfaction, and that
a satisfaction of a judgment against one tort-feasor bars suit against another.” Williams v. Ocean
Transport Lines, Inc., 425 F.2d 1183, 1191 (3d Cir. 1970) (citing Theobald v. Kenney’s Suburban
House, Inc., 48 N.J. 203, 206-207 (1966)); see also Zukowitz v. Halperin, 360 N.J. Super. 69, 74
(App. Div. 2003) (observing that plaintiff asserting a negligence claim against building
superintendent for a dog bite and vicarious liability claim against landlord “is permitted only one
full recovery”). Accordingly, where persons are jointly and severally liable under a single
judgment, “[a]ny consideration received by the judgment creditor in payment of the judgment
debtor’s obligation discharges, to the extent of the amount of value received, the liability to the
judgment creditor of all other persons liable for the loss.” Restatement (Second) of Judgments §
50. “The rule that payment of a loss, in whole or in part, by one of several obligors reduces the
amount that may be obtained from other obligors also applies when the amount of the loss has
been adjudicated. The adjudication of the amount of the loss also has the effect of establishing the
limit of the injured party’s entitlement to redress, whoever the obligor may be.” Id., comment (d).
2

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As explained above, the stipulation of settlement states that Alliance Shippers has agreed to settle
the $120,000 judgment against Decina (consisting of an $80,000 joint and several judgment against
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B.

Motion to Compel Discovery
Relying on Rule 69(a)(2) of the Federal Rules of Civil Procedure and New Jersey Court

Rule 4:59-1, Alliance Shippers filed a motion to enforce litigant’s rights seeking an order
compelling Feldman to answer the questions attached to an information subpoena served on
Feldman’s attorney by email dated April 6, 2015, “or be held in contempt of Court,” (ECF No. 74
at 1), as counsel for Alliance Shippers avers that Feldman did not answer the questions.
Fed. R. Civ. P. 4:69(a)(2) provides: “In aid of the judgment or execution, the judgment
creditor . . . may obtain discovery from any person - including the judgment debtor - as provided
in these rules or by the procedure of the state where the court is located.” New Jersey Court Rule
4:59-1(f) provides in relevant part:
In aid of the judgment or execution, the judgment creditor . . . may examine any
person, including the judgment debtor, by proceeding as provided by these rules for
the taking of depositions or the judgment creditor may proceed as provided by R.
6:7-2, except that service of an order for discovery or an information subpoena shall
be made as prescribed by R. 1:5-2 for service on a party. The court may make any
appropriate order in aid of execution.
N.J. Ct. R. 4:59-1(f).
New Jersey Court Rule 1:5-2 provides that “[s]ervice upon a party . . . shall be made as
provided in R. 4:4-4 or by registered or certified mail, return receipt requested, and simultaneously
by ordinary mail to the party’s last known address.” N.J. Ct. R. 1:5-2. New Jersey Court Rule
4:4-4 provides for service upon a person over the age of 14 “by delivering a copy of the [document]
to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual
place of abode with a competent member of the household of the age of 14 or over then residing

Decina and Feldman and a $40,000 punitive judgment against Decina) for the sum of $100,000,
to be paid in full by September 10, 2015. “The one satisfaction rule applies to settlements as well
as to satisfaction of judgments.” Williams, 425 F.3d at 1191.
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therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive
service of process on the individual's behalf.” N.J. Ct. R. 4:4-4(a)(1).
New Jersey Court Rule 6:7-2(b) provides that an information subpoena, accompanied by
written questions in the form and limited to those set forth in Appendix XI-L, may be served upon
the judgment debtor without leave of court and that the original subpoena, with the answers to the
written questions annexed thereto shall be returned to the judgment creditor’s attorney within 14
days after service. See N.J. Ct. R. 6:7-2(b).
In this case, the motion to enforce litigant’s rights filed by Alliance Shippers does not
comply with New Jersey Court Rules in two respects. First, Alliance Shippers did not comply
with Rules 4:59-1(f) and 1:5-2 by serving the information subpoena upon Feldman either by
effecting personal service in accordance with Rule 4:4-4(a)(1) or by serving it by registered or
certified mail, return receipt requested, and simultaneously by ordinary mail.

Instead, the

certification of Alliance Shippers’ counsel states that counsel served the information subpoena by
email upon the attorney for Feldman. Second, New Jersey Court Rule 6:7-2(b) limits the form and
substance of the questions attached to an information subpoena to those set forth in Appendix XIL of the New Jersey Court Rules, see N.J. Ct. R. 6:7-2(b), but Alliance Shippers has not established
that the questions attached to the information subpoena were limited to the 17 questions for
individuals set forth in Appendix XI-L of the New Jersey Court Rules. Given the failure of
Alliance Shippers to establish compliance with New Jersey court rules governing post-judgment
discovery, this Court will not grant its motion seeking to enforce litigant’s rights by compelling
Feldman to answer the unknown questions on pain of contempt.

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CONCLUSION
This Court will deny the motion to revive the judgment without prejudice, deny the motion
to enforce litigant’s rights, and enter an appropriate order.

s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated: June 12, 2015

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