NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2675-18T1
MARVIN T. BOYD, M.D.,
Plaintiff-Appellant,
v.
RENAL CENTER OF PASSAIC,
LLC and SUCCESSORS, KAREN
LEE LORENZO LIOI, R.N.,
NORTH JERSEY NEPHROLOGY
ASSOCIATES PA, and ANANTH
N. PRAKASH, M.D.,
Defendant-Respondents.
__________________________
Submitted February 24, 2020 – Decided August 11, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No. C-
000144-17.
Marvin T. Boyd, M.D., appellant pro se.
Pepper Hamilton LLP, attorneys for respondent Renal
Center of Passaic, LLC (Jeffrey Arthur Carr and Jason
J. Moreira, of counsel and on the brief).
Frier & Levitt, LLC, attorneys for respondents North
Jersey Nephrology Associates, PA and Ananth N.
Prakash, M.D. (Michelle Lynn Greenberg and Lucas
W. Morgan on the brief).
PER CURIAM
In this breach of contract action, plaintiff Marvin T. Boyd, M.D., appeals
pro se from four orders entered by the trial judge, namely: (1) a May 7, 2018
order granting New Jersey Nephrology Associates, P.A. (NJN) and Ananth N.
Prakash's motion to dismiss; (2) a May 7, 2018 order denying plaintiff's
motion to reinstate an entry of default against NJN, Prakash, and Karen Lee
Lorenzo Lioi, R.N.; (3) a January 11, 2019 order granting summary judgment
to Renal Center of Passaic, LLC (RCP); and (4) a January 11, 2019 order
denying his motion to suppress RCP's answer for failure to answer
interrogatories. Having reviewed the record, and in light of the applicable law,
we affirm.
We discern the following facts from the record. NJN is a nephrology
practice that specializes in the treatment of kidney diseases and hypertension.
At all times relevant to this appeal, Prakash served as an acting physician and
the Chief of Nephrology for NJN. Both Prakash and NJN are members and
equity owners of RCP, a dialysis center based in northern New Jersey.
A-2675-18T1
2
Prakash also serves as medical director for RCP. In May 2000, Prakash, in his
capacity as medical director for RCP, hired plaintiff to serve on RCP's medical
staff and attend to patients in its outpatient hemodialysis unit. Plaintiff did not
execute a written employment contract in connection with his being hired.
Thereafter, Karen Marcus, regional director of Renal Ventures
Management, LLC (RVM) 1 2 and managing partner for RCP, sent a letter to
plaintiff dated September 19, 2011. The letter detailed several complaints
made against plaintiff by RCP staff that could be construed as disruptive
behavior and/or harassment as defined in RVM's medical staff disruptive
behavior and harassment policy (the policy). The letter was intended to inform
plaintiff of the complaints, and to place him on notice of RVM's plans to
investigate the claims in accordance with RVM's bylaws and the policy.
Marcus sent plaintiff another letter dated October 7, 2011, informing
plaintiff that RVM had completed its investigation and that
1
RVM was the parent company for RCP, which it also operated and managed.
RCP advises that it is the successor to RVM as it pertains to RVM's bylaws
and harassment policies.
2
In May 2017, RVM sold RCP to DaVita, Inc. Davita subsequently divested
the RCP facility to Physicians Dialysis and GMF Capital LLC. None of these
entities that followed RVM's sale of RCP are named as defendants in the
present litigation.
A-2675-18T1
3
[Y]ou are hereby notified that your privileges at RVM
have been revoked.
You have fourteen (14) days from the date of
this notice to notify your patients that your privileges
have been revoked, and give them the option to
continue their care with you at another facility,
continue treating at a RVM facility with another
physician or treat with an entirely new physician and
facility.
The letter explained that the governing body of RVM had concluded
that plaintiff's behavior constituted disruptive and/or harassing behavior, and
established October 24, 2011 as the date by plaintiff needed to fully wind
down his practice. Between October 7 and October 24, 2011, plaintiff still
interacted with and treated patients.
On October 18, 2017, plaintiff filed a complaint naming RCP, NJN,
Prakash, and Lioi 3 as defendants. Plaintiff asserted that RCP's bylaws and the
policy constituted a contract. He claimed that defendants had breached the
contract by failing to adhere to the process for terminating employees
delineated in these documents. Plaintiff sought relief based solely on a breach
of contract theory. The parties executed a stipulation for an extension of time
to answer the complaint, allowing defendants an extension until December 24,
2017 to file an answer or response.
3
Lioi was the nurse manager for RCP.
A-2675-18T1
4
RCP filed an answer on December 22, 2017, in which it asserted the
affirmative defense of the statute of limitations. NJN, Prakash, and Lioi all
failed to timely file responsive pleadings.4 NJN and Prakash moved to dismiss
plaintiff's complaint in lieu of filing an answer for failing to state a claim upon
which relief could be granted.5
On February 1, 2018, Judge Thomas J. LaConte held a case management
conference, at which both NJN and Prakash alleged that plaintiff failed to
personally serve them with his complaint and had only done so by certified
mail. Counsel for NJN and Prakash advised the judge that she appeared at the
conference merely to advise that she was representing NJN and Prakash and
that she would be seeking a dismissal of plaintiff's claims against her clients.
Judge LaConte agreed that plaintiff had improperly served NJN, Prakash, and
Lioi, as he failed to personally serve them as required by the Court Rules. 6
However, Judge LaConte deferred making any decisions regarding service to
allow NJN and Prakash to consider whether they wanted to proceed with their
motion to dismiss.
4
Lioi never filed a responsive pleading, and never appeared in this matter.
5
See R. 4:6-2(e).
6
See R. 4:4-4(a).
A-2675-18T1
5
On February 5, 2018, plaintiff filed for entry of default against
defendants NJN, Prakash, and Lioi on the basis that he had served them via
certified mail with return receipts. Default was entered against these
defendants that same day. NJN and Prakash sought to dismiss plaintiff's
complaint but were advised that because they were in default, they would first
need to file a motion to vacate the default. On February 22, 2018, NJN and
Prakash sent a letter to the court clerk requesting that it vacate the default
based on improper service. Recognizing that defendants were improperly
served, the court administratively vacated the default and allowed NJN and
Prakash to file a motion to dismiss plaintiff's complaint. Plaintiff responded
by resubmitting his previously filed papers, and then personally serving NJN,
Prakash, and Lioi, thereafter renewing his request to reinstate default.
On May 7, 2018, Judge LaConte held a hearing on the motion to dismiss
filed by NJN and Prakash, as well as plaintiff's motion to reinstate default.
The judge acknowledged that RCP's bylaws and the policy could constitute an
employment contract as between plaintiff and RCP. He determined, however,
that to extend plaintiff's breach of contract action to find either NJN or Prakash
personally liable would "require an exercise of either piercing the veil, a
protection extended to members of [RCP] or showing a personal breach of
A-2675-18T1
6
contract perpetrated by those parties, breach of fiduciary duties, or a showing
of unjust enrichment as non-parties of contracts cannot be held responsible for
a breach."
The judge concluded that there was no basis to pierce the corporate veil
and find either NJN or Prakash liable here, as plaintiff had not shown that RCP
was a mere instrumentality of either Prakash or NJN nor had he shown that
either NJN or Prakash used RCP to perpetrate fraud or act for an illegal
purpose. The judge further determined that neither NJN nor Prakash had
committed a tort subjecting them to liability; Prakash owed no fiduciary duties
to plaintiff; and NJN was not unjustly enriched from plaintiff's termination.
For these reasons, the judge granted NJN and Prakash's motion to dismiss
plaintiff's complaint without prejudice.7
Judge LaConte also denied plaintiff's motion to reinstate default
because plaintiff had not personally served defendants until after the court had
administratively vacated the default, and his initial service upon defendants by
mail was insufficient.
7
Plaintiff did not brief any of the judge's substantive rulings concerning
piercing the corporate veil, damages, or unjust enrichment on appeal;
therefore, we deem any such arguments to be abandoned. See Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on
appeal is deemed waived.").
A-2675-18T1
7
The judge also discussed the elements a plaintiff must prove in a breach
of contract action identified by our Supreme Court in Globe Motor Co. v.
Igdalev, 225 N.J. 469, 482 (2016). Applying those elements, the judge
concluded that even if plaintiff's complaint was not time-barred, he had failed
to establish that he suffered any quantifiable damages entitling him to relief.
On July 5, 2018, RCP moved for summary judgment as to plaintiff's
complaint against it. Plaintiff opposed RCP's motion and cross-moved to
strike its answer for failing to provide sufficient answers to interrogatories. A
hearing on these motions was held before Judge Randal C. Chiocca on January
11, 2019.
Relying upon N.J.S.A. 2A:14-1, Judge Chiocca determined that plaintiff
had six years from the date on which his breach of contract claim accrued to
file a complaint against RCP, explaining that the claim accrued on the date on
which plaintiff's right to sue arose. The judge found that plaintiff's cause of
action accrued on October 7, 2011, that being the day that plaintiff learned that
his privileges were revoked. The judge found that defendant's continued
employment and his treatment of patients at RCP through October 24, 2011
was not determinative, as it was reasonable to conclude that plaintiff was
aware of the alleged breach of the policy and bylaws more than two weeks
A-2675-18T1
8
prior. Thus, the judge held that defendant's complaint, filed on October 18,
2017, was untimely and statutorily barred.
As to plaintiff's cross-motion, Judge Chiocca concluded that even if
RCP's answers to interrogatories were insufficient and discovery was
incomplete, plaintiff's breach of contract claim nevertheless was barred
because he failed to file his complaint before the applicable statute of
limitations expired. Therefore, the judge granted RCP's motion for summary
judgment and denied plaintiff's cross-motion to strike RCP's answer. This
appeal ensued.
On appeal, plaintiff raises the following arguments:
POINT I: [THE] LOWER COURT ERRED IN
GRANTING SUMMARY JUDGMENT TO
DEFENDANT BY FAILING TO RECOGNIZE THE
STATU[T]E OF LIMITATIONS ACCRUAL DATE
AS BEING OCTOBER 24, 2011.
A. CAUSE OF ACTION IS FAILURE OF A
CONTRACTUAL DUE PROCESS PERFORMANCE
PRIOR TO TERMINATION.
B. TERMINATION DATE AS ACCRUAL DATE IN
EMPLOYMENT PARADIGM PRECEDENT IS
APPLICABLE.
POINT II: [THE] LOWER COURT ERRED IN
DENYING CROSS-MOTION OF . . . PLAINTIFF TO
STRIKE ANSWER FOR FAILURE TO ANSWER
INTERROGATORIES BASED ON [THE] COURT'S
A-2675-18T1
9
ERRONEOUS OPINION THAT THE ACTION IS
TIME BARRED AND IGNORING THE MERIT OF
SAID MOTION.
POINT III: [THE] LOWER COURT ERRED IN
FAILING TO RECOGNIZE THE STIPULATION
EXTENDING TIME TO ANSWER COMPLAINT AS
AN APPEARANCE WITH FAILURE TO APPLY
[RULE] [4:]4-4(C) AND [RULE] [4:]4-6.
POINT IV: [THE] LOWER COURT ERRED BY
FAILING TO ADJUDICATE THE VACATION OF
DEFAULT AND DENYING CROSS-MOTION OF
. . . PLAINTIFF TO REINSTATE THE DEFAULT
WHICH WAS WRONGLY VACATED.
POINT V: [THE] LOWER COURT ERRED IN
GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S COMPLAINT IN LIEU OF FILING
AN ANSWER BECAUSE DEFENDANTS HAD NO
STANDING TO FILE PLEADINGS AS THEY
WERE IN DEFAULT.
After plaintiff filed his appeal, NJN and Prakash sent plaintiff a letter on
March 21, 2019, asserting that plaintiff's complaint and ensuing appeal are
frivolous and in violation of Rule 1:4-8. In their responsive briefs on appeal,
both request that we sanction plaintiff under this rule and award attorney's fees
to NJN and Prakash.
Plaintiff first argues that the trial judge erred in granting summary
judgment to RCP based on plaintiff's complaint being barred by the statute of
limitations for breach of contract claims, N.J.S.A. 2A:14-1. He claims that his
A-2675-18T1
10
claim accrued on the last day that he worked for RCP, as opposed to the date
on which he learned his privileges were being revoked, as he continued to treat
patients after he received his notice of termination. 8 Under this theory,
plaintiff's October 18, 2017 complaint would have been filed within time by
several days. We disagree.
We review a trial judge's grant of summary judgment de novo under the
same standard that governed the trial judge. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That
standard is well-established:
[I]f the evidence of record—the pleadings,
depositions, answers to interrogatories, and
affidavits—"together with all legitimate inferences
therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact,"
then the trial [judge] must deny the motion. On the
other hand, when no genuine issue of material fact is
at issue and the moving party is entitled to a judgment
as a matter of law, summary judgment must be
granted.
8
Both before the trial judge and on appeal, plaintiff relies on case law
governing statutes of limitations for claims under the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Under the CEPA, our courts
have held that such claims accrue not on the date when an employee learns of a
retaliatory discharge, but on the date when the employee is discharged. See
Alderiso v. Med. Ctr. of Ocean Cty., Inc., 167 N.J. 191, 201-02 (2001). As
plaintiff's complaint only raised a breach of contract theory, we concur with
the trial judge that the method for determining the date of accrual for a CEPA
claim does not govern plaintiff's action.
A-2675-18T1
11
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citation omitted) (quoting R. 4:46-2(c)).]
"When no issue of fact exists, and only a question of law remains, [reviewing
courts] afford[] no special deference to the legal determinations of the trial
[judge]." Templo Fuente, 224 N.J. at 199. Thus, "[t]o defeat a motion for
summary judgment, the opponent must '"come forward with evidence" that
creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J. Super.
589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v.
State, 425 N.J. Super. 1, 32 (App. Div. 2012)). However, "conclusory and
self-serving assertions by one of the parties are insufficient to overcome the
motion," Puder v. Buechel, 183 N.J. 428, 440-41 (2005), and the opponent
must "do more than 'point[] to any fact in dispute' in order to defeat summary
judgment," Igdalev, 225 N.J. at 479 (alteration in original) (emphasis omitted)
(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)).
Disputes about "facts which are immaterial or of an insubstantial nature"
provide no basis to deny the moving party summary judgment. Id. at 480
(quoting Brill, 142 N.J. at 529). "An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences therefrom
A-2675-18T1
12
favoring the non-moving party, would require submission of the issue to the
trier of fact." R. 4:46-2(c). "The practical effect of [Rule 4:46-2(c)] is that
neither the motion [judge] nor an appellate [judge] can ignore the elements of
the cause of action or the evidential standard governing the cause of action."
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
Rule 4:5-4 provides that "[a] responsive pleading shall set forth
specifically and separately a statement of facts constituting an avoidance or
affirmative defense," including a statute of limitations defense. In a breach of
contract action, whether express or implied, the statute of limitations is six
years. N.J.S.A. 2A:14-1. Here, there is no question that RCP pleaded the
defense in its answer.
The statute of limitations does not begin until the claim has accrued.
"[F]or purposes of determining when a cause of action accrues so that the
applicable period of limitation commences to run, the relevant question is
when did the party seeking to bring the action have an enforceable right."
Metromedia Co. v. Hartz Mountain Assocs., 139 N.J. 532, 535 (1995) (quoting
Andreaggi v. Relis, 171 N.J. Super. 203, 235-36 (Ch. Div. 1979)). A breach of
contract action accrues on "the date upon which the right to institute and
maintain a suit first arises." Holmin v. TRW, Inc., 330 N.J. Super. 30, 35
A-2675-18T1
13
(App. Div. 2000) (quoting Hartford Accident & Indem. Co. v. Baker, 208 N.J.
Super. 131, 135-36 (Law Div. 1985)), aff'd, 167 N.J. 205 (2001). Specifically,
the right to institute and maintain a suit for a breach of contract accrues either
when the breach occurs or when the plaintiff should, with the exercise of due
diligence, have discovered the breach. Sodora v. Sodora, 338 N.J. Super. 308,
313 (Ch. Div. 2000); see Lopez v. Swyer, 62 N.J. 267, 272-73 (1973).
Here, plaintiff was aware of RCP's alleged breach when he received
Marcus' October 7, 2011 letter that unequivocally stated his privileges had
been revoked. Judge Chiocca correctly found that plaintiff's cause of action
for a breach of contract claim accrued on that date. Plaintiff did not file his
breach of contract action against defendants until October 18, 2017. He failed
to seek the requested relief within six years, as required by N.J.S.A. 2A:14 -1,
and his complaint is therefore time-barred. Similarly, we reject plaintiff's
argument that the judge should have stricken RCP's answer for failure to
answer interrogatories because as the judge determined, any answers would
not have cured the statute of limitations issue.
We also reject plaintiff's argument that the judge erred in entertaining
NJN and Prakeshesh's motion to dismiss. The judge aptly noted that service
was defective as to defendants NJN, Prakash and Lioi in his oral opinion, and
A-2675-18T1
14
we concur. Neither the filing of a stipulation to extend the time to answer, nor
the appearance of counsel for NJN and Prakash at the May 7, 2018 hearing,
constituted a general appearance. The appearance only subjected NJN and
Prakash to the jurisdiction of the court for the limited purpose of filing their
motion to dismiss plaintiff's complaint.
Moreover, at the time they filed the motion, NJN and Prakash were not
in default because, as the judge found, plaintiff only effected personal service
on them after the default was administratively vacated. See R. 4:4-4(c)
("Where personal service is required[,] . . . service, in lieu of personal service,
may be made by registered, certified or ordinary mail, provided, however, that
. . . default shall not be entered against a defendant who fails to answer or
appear in response thereto.").
Finally, as to the request made by NJN and Prakash that we award them
attorney's fees to be paid by plaintiff because plaintiff's initial complaint and
present appeal are frivolous, we conclude that NJN and Prakash must seek
such relief by way of a separate motion, to be filed with the trial judge in the
manner required by our Court Rules. See R. 1:4-8(b)(1) (requiring in part that
an application seeking sanctions be made by way of a separate motion).
A-2675-18T1
15
To the extent we have not addressed any of the parties' remaining
arguments, we conclude that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2675-18T1
16
MARVIN T. BOYD, M.D. VS. RENAL CENTER OF PASSAIC (C-000144-17, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion