KHAZIN v. GEOWEALTH MANAGMENT, LLC et al

Filing 31

LETTER OPINION. Signed by Judge Susan D. Wigenton on 6/7/2018. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF

MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903

SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

June 7, 2018
Keith N. Biebelberg, Esq.
Biebelberg & Martin
Schoolhouse Plaza
374 Millburn Avenue
Millburn, NJ 07041
Attorney for Plaintiff
Rafael Vergara, Esq.
White & Williams LLP
The Legal Center
One Riverfront Plaza
1037 Raymond Blvd., Ste. 230
Newark, NJ 07102
Attorney for Defendants
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Re:

Khazin v. Geowealth Management, LLC et al.
Civil Action No. 17-11487 (SDW)(CLW)

Counsel:
Before this Court is Plaintiff Boris Khazin’s motion to certify this Court’s March 12, 2018
Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), or in the alternative, to enter a
partial final judgment as to the dismissed claim under Federal Rule of Civil Procedure (“Rule”)
54(b). This Court, having considered the parties’ submissions and reached its decision without
oral argument pursuant to Rule 78, and for the reasons discussed below, DENIES Plaintiff’s
motion.
This Court assumes the parties’ familiarity with the factual background and procedural
history in this matter and thus will summarize only those facts germane to Plaintiff’s motion. On
March 12, 2018, after hearing oral argument, this Court granted Defendants’ Motion to Dismiss
Plaintiff’s New Jersey Consumer Fraud Act (“NJCFA”) claim, N.J. Stat. Ann. § 56:8-19 (Count
Three). (ECF Nos. 6, 16, 18.) On March 23, 2018, Plaintiff filed the instant motion requesting
either leave to file an interlocutory appeal or entry of partial final judgment. (ECF No. 22.)
Defendants filed their opposition brief on April 23, 2018, and Plaintiff replied on April 27, 2018.
(ECF Nos. 29-30.)
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DISCUSSION
A. Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
Under § 1292(b), permission to file an interlocutory appeal of a district court’s decision
should only be granted when:
(1) the order involves a controlling question of law; (2) as to which
there is substantial ground for difference of opinion; (3) and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.
Kassin v. AR Res., Inc., No. 16-4171, 2017 U.S. Dist. LEXIS 164294, at *4 (D.N.J. Sept. 28, 2017)
(citing § 1292(b)). “Even if all three criteria are present, the decision to certify is wholly within
the district court’s discretion.” Castro v. Sanofi Pasteur Inc., No. 11-7178, 2013 U.S. Dist. LEXIS
50784, at *7 (D.N.J. Apr. 9, 2013) (citing Huber v. Howmedica Osteonics Corp., No. 07-2400,
2009 U.S. Dist. LEXIS 91526, at *1 (D.N.J. Mar. 10, 2009)).
Here, Plaintiff fails to meet the requisite conditions for an interlocutory appeal. Plaintiff
argues that under a liberal interpretation of the NJCFA, Plaintiff is entitled to protection as a
“consumer,” (ECF No. 22 at 1-2), and that “[a] substantial ground for difference of opinion exists
. . . because at least one New Jersey court has found that a NJCFA claim states a cause of action
not only when there is no privity, but even when there is no direct contact between the parties[,]”
(ECF No. 30 at 2 (citing Matera v. M.G.C.C. Grp., Inc., 952 A.2d 525 (N.J. Super. Ct. Law Div.
2007))). Importantly, Matera is not controlling law in this Circuit. Further, while it is true that
this Court found that Plaintiff was not a “consumer” for purposes of the NJCFA claim, the
dismissal of his claim was not based on that finding alone. Thus, Plaintiff’s disagreement with
this Court’s analysis is insufficient to warrant a permissive appeal.
During oral argument, this Court explained that Plaintiff failed to establish that he suffered
an “ascertainable loss” or that the performance calculations at issue were sold to the public, both
of which are required to assert a NJCFA claim. See Frederico v. Home Depot, 507 F.3d 188, 202
(3d Cir. 2007) (explaining “[t]o state a claim under the NJCFA, a plaintiff must allege that the
defendant engaged in an unlawful practice that caused an ascertainable loss to the plaintiff”); see
also Marketvision/Gateway Research, Inc. v. Carter, No. 10-1537, 2012 U.S. Dist. LEXIS 29157,
at *3 (D.N.J. Mar. 6, 2012) (explaining that as part of a NJCFA claim a plaintiff must allege that
the goods at issue were sold to the public).
Additionally, this Court found that the learned professional exception exempted Defendant
Ivo Ivanov from liability under the NJCFA because the transaction at issue was coordinated
between two financial industry professionals on behalf of their respective financial institutions.
See Friest v. Luxottica Group S.P.A., No. 16-3327, 2016 U.S. Dist. LEXIS 174955, at *8 (D.N.J.
Dec. 16, 2016). As such, this Court finds that there is no substantial difference of opinion, and an
interlocutory appeal of the March 12, 2018 Order would only delay the ultimate resolution of the
case.

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B. Partial Final Judgment Pursuant to Rule 54(b)
Rule 54(b) permits district courts to “direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is no just reason
for delay.” Fed. R. Civ. P. 54(b). To determine whether an entry of final judgment is appropriate,
courts must first determine whether there is a final judgment on a cognizable claim for relief, and
if so, then consider whether there is any just reason for delaying appellate review. Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980).
Here, the parties do not dispute that dismissal of Plaintiff’s NJCFA claim is a final
disposition as to that claim. Therefore, this Court need only consider whether there is any just
reason for delaying appellate review. In making this determination, courts consider the following
factors:
(1) the relationship between the adjudicated and unadjudicated
claims; (2) the possibility that the need for review might or might
not be mooted by future developments in the district court; (3) the
possibility that the reviewing court might be obliged to consider the
same issue a second time; (4) the presence or absence of a claim or
counterclaim which could result in set-off against the judgment to
be made final; and (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial,
frivolity of competing claims, expenses, and the like.
Castro, 2013 U.S. Dist. LEXIS 50784, at *8 (citing Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d
195, 203 (3d Cir. 2006)). “In keeping with their responsibility to ensure that appeals are not raised
in piecemeal fashion, courts should focus their inquiry on ‘whether the pending issues and those
that have been dismissed are legally and factually separable.’” Id. at *9 (quoting U.S. Golf Ass’n
v. St. Andrews Sys., Data-Max, Inc., 749 F.2d 1028, 1031 n.5 (3d Cir. 1984)).
Having considered these factors, this Court is not persuaded that entering a partial final
judgment is appropriate. Indeed, the adjudicated and unadjudicated claims involve the same
parties and raise common questions, including whether Defendant Ivo Ivanov’s statements were
negligent or fraudulent misrepresentations that caused Plaintiff to lose his job. Moreover, the need
for appellate review could become moot if, as discovery proceeds, a determination is made as to
whether the statements were misrepresentations. There is also a risk that “grant[ing] . . . leave to
appeal at this stage would raise a substantial likelihood that the Third Circuit may have to revisit
these questions on a future appeal after final disposition of Plaintiff[’s] claims before this Court.”
Id. at *10. Further, given the unpredictability of the amount of time for an appeal, entering partial
final judgment would foreseeably delay this litigation. Therefore, Plaintiff’s motion is denied.

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CONCLUSION
For the reasons set forth above, Plaintiff’s motion for certification of an interlocutory
appeal or for partial final judgment is DENIED. An appropriate order follows.

/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.

Orig:
cc:

Clerk
Cathy L. Waldor, U.S.M.J.
Parties

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