SANTORO et al v. UNIQUE VACATIONS, INC.

Filing 71

OPINION filed. Signed by Judge Anne E. Thompson on 1/14/2015. (kas, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Jonathan SANTORO and Katherine
SANTORO,
Plaintiffs,

Civ. No. 10-3281

v.

OPINION

UNIQUE VACATIONS, INC., et al.,
Defendants.

THOMPSON, U.S.D.J.
This matter is before the Court upon Defendants’ Unique Vacations, Inc. (“Unique”) and
Sandals Resorts International, Ltd. (“SRI”) (collectively, “Defendants”) Motion for
Reconsideration. (Doc. No. 65). Plaintiffs Jonathan Santoro and Katherine Santoro
(“Plaintiffs”) oppose Defendants’ motion and cross-move to amend the complaint. (Doc. No.
66). The Court has decided the motions based on the written submissions of the parties and
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated
below, both motions will be denied.
BACKGROUND
The facts of this case are more fully summarized in the Court’s Opinion of April 22, 2014
granting Defendants partial summary judgment (the “April 22 Opinion”). (Doc. No. 51, Partial
Summ. J. Op.). Plaintiffs are a married couple who booked a trip to the Sandals Regency La Toc
Golf Resort & Spa in St. Lucia (“Sandals Regency La Toc”) for their honeymoon. (Doc. No. 4,
Am. Compl., at ¶ 23; Doc. No. 51, Partial Summ. J. Op. at 1). Unique is a Delaware corporation

that provides marketing services for a number of hotels doing business under the trade name
“Sandals;” SRI provides management services to those same hotels. (Doc. No. 51, Partial
Summ. J. Op. at 2). Through a travel agent, Plaintiffs purchased an all-inclusive package from
Unique for their stay at the Sandals Regency La Toc. (Doc. No. 4, Am. Compl., at ¶ 23).
Included with this package was a transportation voucher, which Plaintiffs were instructed to
present upon arrival at the Hewanorra International Airport in St. Lucia to a Sandals
representative, who would then assist them to a vehicle that would transport them to the Sandals
Regency La Toc. (Id. at ¶¶ 14-15). Plaintiffs followed these instructions after arriving in St.
Lucia and were led by a Sandals representative named Karan Alexander (“Alexander”) to a taxi
operated by Defendant Vallins Don C. Jean (“Jean”), who was not an employee of either Unique,
Sandals, or the Sandals Regency La Toc. (Doc. No. 51, Partial Summ. J. Op. at 2). This taxi
was either owned by Jean or Defendant Southern Taxi Association (“STA”). (Id. at 3). While
Jean was driving Plaintiffs from the airport to the Sandals Regency La Toc, he fell asleep, which
led to the vehicle’s running off the road and the Plaintiffs’ being injured. (Id. at 3-4).
Before embarking on their honeymoon, Plaintiffs had received an invoice from Unique.
(Id. at 2-3). This invoice contained the following waiver:
Limitation of Damages: Unique Vacation, SRI, any hotel or hotel management
company, their affiliates, subsidiaries, directors, officers, and employees, shall not
be liable to guest in any circumstances for: (A) any personal injuries or property
damage arising out of or caused by any act or omission on the part of any air
carrier or grand transportation carrier; (B) emotional distress, mental suffering, or
psychological injury of any kind; or (C) any consequential, incidental, punitive, or
exemplary damages.
(Id. at 3).
On December 13, 2013, Defendants moved for summary judgment on all of Plaintiffs’
claims. (Doc. No. 37, Defs.’ Mot. Summ. J.). In their brief supporting this motion, Defendants

argued that judgment should be granted in their favor on Plaintiffs’ negligence claim because it
was undisputed that Defendants did not own, operate, manage, or have control over STA, nor
was Jean employed by Defendants, and thus Defendants could not have been the proximate
cause of Plaintiffs’ injuries. (Doc. No. 37-5, Defs.’ Summ. J. Br. at 5). On December 31, 2013,
Plaintiffs filed an opposition to Defendants’ summary judgment motion and made a cross-motion
for partial summary judgment. (Doc. No. 43, Pls. Opp’n and Mot. Partial Summ. J.). In their
brief, Plaintiffs focused not on whether Jean had the apparent authority to act as an agent of
Defendants, as they had claimed in the 2010 Amended Complaint (Doc. 4, Am. Compl. at ¶ 13),
but rather focused on whether Alexander was an agent of Defendants. (Doc. No. 43, Pls. Opp’n
and Mot. Partial Summ. J. at 4-8).
By an order and opinion issued on April 22, 2014, the Court rejected Plaintiffs’
negligence claim because (1) Plaintiffs had not pointed to any evidence showing that Defendants
had any “role in the ownership, operation, or management of the vehicle in which Plaintiffs
traveled” or that Defendants had employed or exercised any control over Jean, and (2) because
the exculpatory clause contained in the invoice for the trip was enforceable against Plaintiffs
under Slotnick v. Club ABC Tours, Inc., 430 N.J. Super. 59 (Law Div. 2012). (Doc. No. 51,
Partial Summ. J. Op. at 5-6). The only claim on which the Court did not grant Defendants
summary judgment was a claim for negligent misrepresentation. (Id. at 8-9). Trial was
scheduled to commence on this single claim on November 17, 2014.
The first attorney who had represented Plaintiffs before this Court was Karim Arzadi of
the Law Offices of Karim Arzadi in Perth Amboy, New Jersey. (Doc. 40, Consent Order of
Substitution). On December 17, 2013, attorney Donald Joworisak filed a Consent Order of
Substitution along with a cover letter explaining to the Court that he would be representing

Plaintiffs going forward and that the name of the firm “The Law Offices of Karim Arzadi” was
being changed to “Joworisak & Associates, LLC.” (Id.). Mr. Joworisak signed Plaintiffs’
Opposition to Defendants’ Motion for Summary Judgment, and he appeared before the Court for
Plaintiffs at oral argument on the summary judgment motion on February 19, 2014. (Doc. 43,
Pls. Opp’n and Mot. Partial Summ. J.; Doc. No. 50). However, on November 14, 2014—the
Friday before trial was set to begin on Monday, November 17—the Court was advised in a
telephone conference that Vincent Glorisi of the Vincent R. Glorisi Law Offices in Old Bridge,
New Jersey, would be representing Plaintiffs at trial. Mr. Glorisi was listed in the pretrial order
but not as a separate law firm. He has never entered an appearance for his law firm. During the
telephone conference call, Mr. Glorisi informed the Court for the first time that he wished to
pursue a vicarious liability theory against Defendants, by which he would argue that Defendants
should be held liable for the injuries caused by Jean because Jean had the apparent authority to
act as agent of Defendants, and that therefore Defendants should be vicariously liable for his
negligence under respondeat superior.
At the end of the first day of trial, after the jury had been sworn and Plaintiffs had
presented the bulk of their case as to Defendants’ liability, Mr. Glorisi made a motion to amend
the complaint to make his vicarious liability claim against Defendants. The next day, the Court
indicated that it would deny Plaintiffs’ motion to amend the complaint because there was no new
evidence that had arisen to justify amending the complaint once trial had begun. At the end of
the day on Wednesday, in a conference in chambers with counsel for Plaintiffs and Defendants,
Mr. Glorisi informed the Court that Plaintiffs intended to dismiss their complaint altogether, as
they did not feel that they had been able to convincingly prove the case for negligent

misrepresentation and did not wish to expend the resources to call their expert medical witnesses
to present the case for Plaintiffs’ damages.
On Thursday morning, the Court informed the parties both initially in chambers and on
the record in the courtroom that it had further considered: Plaintiff’s motion to amend the
complaint in the light of the vicarious liability theory that Mr. Glorisi had expounded; the
evidence that Plaintiffs had offered at trial; and the claims that Plaintiffs had stated against
Defendants in their 2010 Amended Complaint (Doc. No. 4). Taking those factors into
consideration, the Court determined that in the interest of allowing Plaintiffs the opportunity to
have as complete an airing of their case as justice required, that the motion to amend the
complaint should: (1) be interpreted as a motion for reconsideration of the Court’s April 22, 2014
Order and Opinion granting summary judgment on Plaintiffs’ negligence claim, as Plaintiffs’ had
claimed Defendants were vicariously liable for Jean’s negligence in the 2010 Amended
Complaint, and thus the Complaint did not need to be amended; and (2) that this motion should
be granted so as to allow Plaintiffs to present this claim to a jury, as there was enough evidence
supporting the vicarious liability theory that summary judgment should not have been granted.
Though Defense counsel protested that the Court should not grant a motion for reconsideration
sua sponte, the Court corrected Defense counsel and stated very clearly that it was not, in fact,
granting a motion sua sponte but that it was responding to the motion made by Mr. Glorisi on the
record on November 17, 2014.
The following day, November 19, Defendants made a motion for a mistrial (Doc. No.
59), which the Court granted (Doc. No. 64). This case is now set to begin a new trial on
February 3, 2015. On December 3, 2014, Defendants filed the present motion for
reconsideration of the Court’s November 19, 2014 granting of Plaintiff’s motion for

reconsideration. (Doc. No. 65). On December 22, 2014, Mr. Joworisak, once again
representing Plaintiffs,1 filed an opposition to Defendants’ motion for reconsideration. (Doc. No.
66). Along with this opposition, Plaintiffs also filed a motion to amend the complaint to
substitute Ciceron Management Company, Ltd. for a fictitiously named defendant. (Id.).
Defendants oppose this amendment. (Doc. No. 70).
STANDARDS
I.

Motion for Reconsideration
The Third Circuit has held that “The purpose of a motion for reconsideration is ‘to

correct manifest errors of law or fact or to present newly discovered evidence,’” and that,
accordingly, motions for reconsideration should be granted only where (1) there has been a
change in controlling law; (2) there is new evidence; or (3) there is a need to correct a “clear
error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.
2010) (quoting Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
II.

Motion to Amend
Federal Rule of Civil Procedure 15(c) governs when a pleading may be amended after the

statute of limitations has passed. See Padilla v. Twp of Cherry Hill, 110 F. App’x 272, 276 (3d
Cir. 2004). The statute of limitations passed long before Plaintiffs filed their motion to amend on
December 22, 2014, as the accident giving rise to this cause of action occurred in July of 2008
(Doc. 4, Am. Compl. at ¶ 12) and the statute of limitations for personal injuries in New Jersey is
two years (N.J.S.A. 2A:14-2.2(a)). Rule 15(c)(1)(A) allows an amendment to a complaint when
the amendment relates back to the original pleading:
(1) An amendment to a pleading relates back to the date of the original pleading
when:
1

It is the Court’s understanding that Mr. Glorisi will represent Plaintiffs again at trial, though he
needs to file his appearance on the record.

(A) the law that provides the applicable statute of limitations allows
relation back.
New Jersey’s statute of limitations for personal injuries does not discuss relating back, but under
New Jersey’s fictitious party rule, N.J.R. 4:26-4, an amendment relates back to the original
pleading where the plaintiff named a fictitious defendant in the original pleading and later seeks
to amend the complaint to substitute a specific, named defendant for the fictitious defendant. To
be able to invoke this rule, however, a plaintiff must show that she “exercised due diligence to
ascertain defendant’s true name before and after filing the complaint.” Monaco v. City of
Camden, 366 F.App’x 330, 334 (3d Cir. 2010) (quoting DeRienzo v. Harvard Indus., 357 F.3d
348, 353 (3d Cir. 2004).
ANALYSIS
I.

Defendants’ Motion for Reconsideration
The Court will deny Defendants’ motion for reconsideration because the Court believes

that its decision to grant Plaintiff’s motion for reconsideration on November 19, 2014 was fairly
decided and Defendants have not shown any new evidence, any change in controlling law, or any
clear error of law.
As discussed above, the Court granted Mr. Glorisi’s motion for reconsideration of the
granting of summary judgment on Plaintiff’s negligence claim because Mr. Glorisi persuaded the
Court that there were material issues of fact which should have gone to the jury. While it would
have been better for the apparent authority and negligence issues to have been placed firmly
before the Court before trial began, it nonetheless became clear to the Court that Plaintiffs—Mr.
and Mrs. Santoro—deserved to have this claim heard by the jury, and that to deny them that
opportunity would have been a manifest injustice. Accordingly, the Court granted the motion for
reconsideration, reinstating that claim.

As the Court noted in its April 22 Opinion, in order to establish vicarious liability under
an apparent authority theory, a party must “establish that: (1) the appearance of authority has
been created by the conduct of the alleged principal and not solely by the conduct of the putative
agent; (2) a third party has relied on the agent’s apparent authority to act for a principal; and (3)
the reliance was reasonable under the circumstances.” (Doc. No. 51 at 6-7) (quoting Mayflower
Transit, LLC v. Prince, 314 F.Supp. 2d 362, 374 (D.N.J. 2004)). The doctrine of apparent
authority exists so that a party cannot escape liability where there is no contractual relationship
between a principal and a tortfeasor but the principal’s behavior has misled a third party into
believing that the tortfeasor was acting under the authority of the principal as its agent or
employee; as such, the question of whether an apparent authority relationship exists is very
factually intensive. Mayflower Transit LLC, 314 F.Supp. 2d at 374. After Plaintiffs’
presentation at trial, the Court came to appreciate fully that Defendants had sold Plaintiffs an allinclusive vacation package that included a voucher for ground transportation from the airport to
the resort, and that the marketing materials for the package and the transportation voucher could
have led Plaintiffs to believe that the person who would drive them from the airport to the resort
would be a Sandals employee. The Court concluded that there were material issues of fact as to
whether the driver Jean was under the apparent authority of Defendants. See Casey v. Sanborn’s
Inc. of Tex., 478 S.W.2d 234, 236–39 (Tex. Civ. App. 1972) (finding that plaintiffs had made the
prima facie showing of liability against a Texas travel agency under the doctrine of respondeat
superior by showing that they had been injured by the negligent conduct of a Mexican driver
who had been contracted with by a Mexican travel service which was held out by the Texas
travel agency as “our men in Mexico,” even though the Texas travel agency had no contractual
relationship with the Mexican driver.)

Another basis for the Court’s grant of summary judgment to the Defendants on the
negligence claim was the exculpatory clause contained in the invoice sent to Plaintiffs. While
the Court cited Slotnick v. Club ABC Tours, Inc., 430 N.J. Super. 59 (Law Div. 2012) as having
established the precedent in New Jersey that such clauses will generally be found enforceable,
the Court concludes now that Slotnick is distinguishable from the present case. First, in Slotnick,
the Defendant who was found to be protected by the exculpatory clause was Club ABC Tours,
Inc., (“Club ABC”) which was the entity with whom the plaintiff had booked her trip to Egypt.
Slotnick, 430 N.J. Super. at 69–70. However, the party that allegedly injured plaintiff was the
cousin of a tour guide employed by Al Thuraya Travel & Tours (“T3”), which was hired to
provide travel services for plaintiff and others on a Jordan add-on tour from the Egypt tour by
STI Travel, LLC, which itself had been hired by Club ABC to act as tour operator for the Egypt
tour. Id. at 62–64. The event at which plaintiff was injured was an optional excursion from the
Jordan add-on tour for dinner in the T3 tour guide’s family cave. Id. at 64. Thus, there were
many layers of privity between Club ABC and the tortfeasor. Under those circumstances, it is
more reasonable to allow exculpatory clauses, which are generally disfavored under New Jersey
law and are subjected to close judicial scrutiny. See Stelluti v. Casapenn Enter., LLC, 203 N.J.
286, 303 (2010). Here, it is plausible that the driver Jean was acting under the apparent
authority of Sandals, and that he was executing a duty that Defendants had marketed to Plaintiffs
and for which Plaintiffs had paid a premium to Defendants. In Slotnick, by contrast, the plaintiff
had not purchased the excursion for the dinner in the cave in Jordan from Club ABC. Slotnick,
430 N.J. Super. at 64. Thus, the factual situation here is significantly distinguishable from the
situation presented in Slotnick.

More to the point, however, the New Jersey Appellate Division has held that an
“exculpatory agreement does not and should not insulate dangerous conduct that is more
culpable than ordinary negligence or carelessness” (i.e., gross negligence). Stelluti v. Casapenn
Enter., LLC, 408 N.J. Super. 435, 457 n.6 (N.J. Super. Ct. App. Div. 2009) (aff’d, 203 N.J. 286
(2010)). Here, a reasonable jury might reasonably have found that Jean was grossly negligent in
causing the car crash. Defendants would be liable for the damages resulting from such
negligence if the jury were also to find that Jean acted under the apparent authority of
Defendants. Thus, the Court concludes that the Defendants’ exculpatory clause was insufficient
as a basis for the grant of summary judgment.
II.

Plaintiffs’ Motion to Amend
To avail itself of New Jersey’s fictitious party rule, which allows a party to amend a

complaint to add a defendant where it had named a fictitious defendant originally, the party must
have acted with diligence before and after filing the complaint. Monaco, 366 F.App’x at 334.
Though Plaintiffs did name “Sandals Regency La Toc Golf Resort & Spa in St. Lucia
Management (fictitious name)” as a defendant in its complaint in 2010, there is no evidence that
Plaintiffs acted with any diligence at all in the almost four and half years between the filing of
the complaint and the filing of the instant motion. Apparently, nothing was done to determine
the identity of the management company and add it as a party, even though there are several
indications in the record that Circeron Management Company, Ltd. was the party to be named in
the complaint. See DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 354–55 (3d Cir. 2004)
(collecting cases where the fictitious party rule has been applied). Accordingly, Plaintiffs’
motion will be denied.

CONCLUSION
For the foregoing reasons, both Defendants’ and Plaintiffs’ motions are denied. An
appropriate order will follow.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.