Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-30-2008
Girard Menoken v. John McNamara
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2445
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"Girard Menoken v. John McNamara" (2008). 2008 Decisions. Paper 28.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2445
___________
GIRARD MENOKEN,
Appellant
vs.
JOHN T. MCNAMARA; JOHN J. MURPHY, III; STRADLEY, RONON, STEVENS &
YOUNG, LLP; ROBERT J. BARRY; GERINGER & DOLAN LLP; KAUFMAN &
CANOLES; STANDARD FORMS INC; WORKFLOW MGMT INC; ABC CORP; XYZ
LLC; STANDARD BUSINESS FORMS; NICHOLAS C. BOZZI; DELAWARE
VALLEY BUSINESS FORMS INC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 07-cv-04610)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 29, 2008
Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges
(Opinion filed: December 30, 2008)
____________
OPINION
___________
PER CURIAM.
Girard Menoken appeals pro se from an order of the United States District
Court for the District of New Jersey granting, on statute of limitations grounds, a motion
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to dismiss and a motion for summary judgment in an action removed to federal court
pursuant to 28 U.S.C. §§ 1331 and 1441. We will affirm.
In 1996, Menoken brought an action in the United States District Court for
the District of New Jersey alleging violations the Family and Medical Leave Act
(“FMLA”), the Americans With Disabilities Act (“ADA”), and the Civil Rights Act of
1991. Menoken v. Standard Form, Inc., D.N.J. Civ. No. 96-1774 (“Menoken I”).
Following discovery and briefing by the parties, the District Court dismissed Menoken’s
claims, with the exception of an FMLA claim, which was later resolved in Menoken’s
favor after a bench trial. The District Court entered its final judgment on June 16, 2000.
On appeal, we affirmed the District Court’s partial dismissal of Menoken’s claims and
reversed the District Court’s finding of liability on the FMLA claim. See Menoken v.
Standard Forms, Inc., 275 F.3d 36 (3d Cir. 2001) (table).
In 2002, Menoken filed suit in New Jersey Superior Court against the
defendants in Menoken I and their attorneys, raising claims of tortious interference with
prospective economic advantage and fraudulent concealment of material evidence.
Menoken v. McNamara, D.N.J. Civ. No. 02-3341 (“Menoken II”). The defendants
removed Menoken II to the District Court, which determined that it had federal question
jurisdiction pursuant to 28 U.S.C. § 1331. Menoken then voluntarily dismissed the
action, but three months later, in January 2003, he moved the District Court to reverse its
ruling with respect to subject matter jurisdiction. See Fed. R. Civ. P. 60(b). The District
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Court denied Menoken’s motion. See Menoken v. McNamara, 213 F.R.D. 193, 197-98
(D.N.J. 2003). Menoken appealed, and we granted the appellees’ motion to dismiss for
lack of jurisdiction. See Menoken v. McNamara, 88 F. App’x 550 (3d Cir. 2004) (not
precedential).
Menoken filed the present action in the Superior Court of New Jersey on
August 13, 2007. The claims in Menoken’s amended complaint – which is virtually
identical to the complaint he filed in Menoken II – concerned alleged misconduct during
the discovery process and summary judgment proceedings in Menoken I. The principal
dispute centered around the defendants’ disclosure of, and statements regarding, an Asset
Purchase Agreement.1 The defendants removed the case to the District Court, which,
after determining that it had jurisdiction, granted certain defendants’ motion to dismiss
and granted the remaining defendants’ motion for summary judgment. The District
Court’s decision was based on its conclusion that New Jersey’s six-year statute of
limitations for non-personal injury actions barred Menoken’s claims. See N.J. Stat. Ann.
§ 2A:14-1. Menoken appealed.
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The Agreement pertained to the acquisition of Menoken’s former employer,
Delaware Valley Business Forms (“DVBF”), by Standard Forms, Inc. (“SFI”). SFI’s
purchase of DVBF took place while Menoken was out of work due to injuries he suffered
during a street mugging. When Menoken sought to return to work, SFI claimed that
DVBF had not identified him in an exhibit to the Asset Purchase Agreement listing
DVBF employees who would become employees of SFI after the transaction.
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Significantly, the alleged harm caused by the defendants’ failure to turn
over the Purchase Agreement, and by the defendants’ alleged misrepresentations
concerning a list of DVBF employees attached to that Agreement, was known to
Menoken before the District Court entered its final judgment in Menoken I on June 16,
2000. During a case management conference, Menoken’s attorney admitted that the
Asset Purchase Agreement was provided to Menoken on October 15, 1998, and that it
was at that time that Menoken first learned that SFI “had been misleading . . . with regard
to whether this employee list was actually part of that agreement.” The District Court
concluded that Menoken “was [not] harmed in any way by not having obtained a copy of
the agreement sooner than [he] did.”
Menoken failed to raise his allegations of fraud and misrepresentation after
entry of the final judgment in Menoken I; he did not appeal the District Court’s discovery
rulings; he has not alleged that the judgment should be set aside because of fraud upon
the court; and he has not sought to initiate an independent federal action to obtain relief.
In other words, Menoken has never pursued an appropriate available remedy in the
District Court, and now any attempt to do so would be time-barred and/or meritless.
Furthermore, to the extent Menoken’s claims are cognizable under state law and were
properly removed to federal court, we agree, for the reasons stated by the District Court,
that the claims are barred by New Jersey’s six-year statute of limitations.
Accordingly, we will affirm the District Court’s judgment.
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