Opinion
DOCKET NO. A-5658-11T3
07-19-2013
IFUTURISTICS, INC., Plaintiff-Appellant, v. AVACORP, LLC., Defendant-Respondent.
Indik & McNamara, P.C., attorneys for appellant (Carl J. Dallarda and Martin K. Indik, on the briefs). Archer & Greiner, P.C., attorneys for respondent (Patrick Papalia, of counsel; Michael R. Olszak, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0452-12.
Indik & McNamara, P.C., attorneys for appellant (Carl J. Dallarda and Martin K. Indik, on the briefs).
Archer & Greiner, P.C., attorneys for respondent (Patrick Papalia, of counsel; Michael R. Olszak, on the brief). PER CURIAM
Plaintiff IFuturistics appeals from a June 14, 2012 summary judgment order entered by the Law Division on behalf of defendant Avacorp, LLC. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
I.
We briefly summarize the relevant procedural history and the facts based on the record before us.
IFuturistics is a software development company. In March 2010, IFuturistics entered into a professional services agreement with Avacorp, whereby IFuturistics would "provide AVACORP with the services of certain consultants." Prior to this agreement, IFuturistics entered into a business opportunity and liaison agreement with HRD Systems Inc. (HRD) to provide business opportunities to render computer professional services with third parties. One of these third parties was Avacorp.
Article II of the professional services agreement between IFuturistics and Avacorp provided that the consultants would not be employees of Avacorp, and that IFuturistics would be responsible with regard to the contractors for compliance with labor laws, withholding of taxes, and insurance and benefit coverage. However, all insurance required by the agreement had to be with insurers approved by Avacorp and Avacorp was to be named an alternate employer in the contractors' employer's liability policy. The agreement was to commence on the date both parties executed the agreement and terminate one year following such date.
Attached to the agreement was a purchase order with the title "Candidate temporarily provided by Staffing Company as Consultant." Pursuant to this purchase order, Avacorp would pay IFuturistics $55 per hour for the consultant's work.
IFuturistics procured the names of consultants and provided their information and resumes to Avacorp. IFuturistics then set up an interview between Avacorp and Adithi Raghuram, who was an HRD employee. Raghuram began working for Avacorp around March 15, 2010. Raghuram performed her work at Avacorp's offices, however, the work she performed was for a client of Avacorp. Avacorp supervised and controlled the details of Raghuram's daily work performance.
For Raghuram's work, Avacorp was to pay IFuturistics directly, IFuturistics would then pay HRD, and HRD would pay Raghuram. According to Avacorp's representative, Vivek Dhamodharan, IFuturistics invoice amount included the wages for Raghuram that she was to be paid as well as IFuturistics' fee for procuring Raghuram.
Avacorp soon fell behind on its payments. According to IFuturistics, a pattern developed in which Avacorp was consistently late in making the required payments. An alternative payment arrangement was reached, but Avacorp failed to honor it.
IFuturistics received a registration certificate effective September 19, 2011 and expiring June 30, 2012, from the New Jersey Division of Consumer Affairs certifying that IFuturistics is regulated in New Jersey as a consulting firm and temp agency. However, during Raghuram's entire time with Avacorp, IFuturistics was neither licensed as an employment agency nor registered as a temporary help service firm in New Jersey.
On January 20, 2012, IFuturistics filed a complaint against Avacorp for payment of services in the amount of $74,200. Defendant filed an answer along with affirmative defenses on March 29, 2012. On April 19, 2012, Avacorp filed a motion for summary judgment asserting it had no obligation to pay a commission because IFuturistics failed to comply with the registration and licensure requirements of the Private Employment Agency Act (Act), N.J.S.A. 34:8-43 to -66, which prohibits the maintenance of "an action in any court of [New Jersey] for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act" absent appropriate proof of licensure and registration. On June 14, 2012, following oral argument, the motion judge entered summary judgment for Avacorp, as a result of IFuturistics' failure to be registered as an employment agency or temporary staffing company. This appeal ensued.
As noted in Data Informatics, Inc. v. AmeriSOURCE Partners, 338 N.J. Super. 61, 63 n.1 (2001), after the repeal of the former Act with the substitution of the current Act by L. 1989, c. 331, § 28, the Act no longer has a statutory title. However, the older cases which discuss the Act refer to it as the Private Employment Agency Act; however, herein, we simply refer to it as the "Act."
It should be noted that the trial judge's decision on the record stated, "I didn't see that they would fit within the definition of a temporary help firm[.]"
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II.
We apply the same standard of review as the trial court when assessing a summary judgment decision. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). The evidence must be viewed "in the light most favorable to the non-moving party." Ibid. The role of the court is not "to weigh the evidence and determine the outcome," Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50 (2012) (internal quotation marks omitted); rather, it is to determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law," id. at 41 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). Therefore, "[r]eview of an order granting summary judgment is de novo; an appellate court need not accept the trial court's findings of law." Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
On appeal, IFuturistics argues that the motion judge erred when she found that the Act applied to its activities. We disagree. An "employment agency" includes corporations
who for a fee, charge or commission:
(1) Procures or obtains, or offers, promises or attempts to procure, obtain, or assist in procuring or obtaining employment for a job seeker or employees for an employer; or
(2) Supplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General pursuant to the provisions of section 1 of P.L. 1981, c. 1 (C.56:8-1.1); or . . .
. . . .
(4) Acts as a placement firm, career counseling service, or resume service . . .
[N.J.S.A. 34:8-43.]
Additionally, a "consulting firm" includes any corporation "required to be registered under [N.J.S.A. 34:8-64]" which "(1) [i]dentifies, appraises, refers or recommends individuals to be considered for employment by the employer; and (2) [i]s compensated for services solely by payments from the employer and is not, in any instance, compensated, directly or indirectly, by an individual who is identified, appraised referred or recommended." N.J.S.A. 34:8-4 3.
An "employer" is defined as "a person seeking to obtain individuals to perform services, tasks, or labor for which a salary, wage, or other compensation or benefits are to be paid," N.J.S.A. 34:8-43, but, for purposes of the Act, an employment agency is not an "employer," except of its own employment agents, N.J.A.C. 13:45B-1.2. A "job seeker" is "any individual seeking employment . . . or employment related services or products." N.J.S.A. 34:8-43; N.J.A.C. 13:45B-1.2. Although not defined by the statute, "employee" and "placement firm" must be given their ordinary and well-understood meanings. N.J.S.A. 1:1-1; Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998); Hubbard v. Reed, 331 N.J. Super. 283, 290 (App. Div.), certif. granted, 165 N.J. 527 (2000). "Employee" is commonly defined as "[a] person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary 471 (5th ed. 1979); see also Conestoga Title Ins. Co. v. Premier Title Agency, Inc., 328 N.J. Super. 460 (App. Div.) (defining employee as "person[] whom you have the right to direct and control while performing services for you"), aff'd, 166 N.J. 2 (2000). "Placement" is commonly defined as "[t]he act of finding employment for a person as in the case of an employment agency," Black's Law Dictionary, supra, at 1034. The common meaning of the provision's remaining terms are readily apparent, and not "so unusual or subtle [as] to 'send the average citizen scrambling for a dictionary.'" Binkowski v. State, 322 N.J. Super. 359, 382 (App. Div. 1999) (quoting State v. Afanador, 134 N.J. 162, 171 (1993)).
Here, the motion judge found that in view of the professional services agreement and relevant facts, IFuturistics fit within the definition of an employment agency. She stated that "In this case the plaintiff provided a computer consultant, Ms. Raghuram, from another company, HRD, for either the defendant or an end user of defendant and so it seems to me that the plaintiff was procuring employment and acting as an employment agency under the Act[.]" Moreover, the motion judge found that because IFuturistics "recommended people, . . . identified people . . . and [was not] compensated by . . . Ms. Raghuram herself," IFuturistics could also be considered a consulting firm.
IFuturistics' contention that it is not an employment agency and only provided liaison services for HRD Systems to render computer specialty services to Avacorp, is unpersuasive. There is relevant precedent that guides our determination. In Data Informatics, supra, 338 N.J. Super. 61, the plaintiff sued the defendant for a breach of a non-compete clause, however the case also involved the reach of the Act. The plaintiff provided one of the defendant's employees, as a consultant, to work for plaintiff's client, Alliance. Id. at 63. The agreement contemplated that Alliance would pay the plaintiff, who would pay the defendant, who would then pay its employee. Id. at 66. Payments to the plaintiff from Alliance ceased because, according to a letter from the defendant, the defendant had released the employee from employment so she could work for another employer. Id. at 67. Against this backdrop, we found that the plaintiff's actions
provide[d] a sufficient basis for demonstrating plaintiff's susceptibility to the Act's requirements. Plaintiff procured an AmeriSOURCE employee, Balawat, and placed her with plaintiff's client, Alliance. Alliance was obviously an "employer," as it contacted plaintiff seeking to obtain an employee to perform services for which wages were to be paid. Balawat was an "employee" of Alliance, as plaintiff conceded that Alliance alone, through Bernardo, controlled and directed her in the material details of how her work was to be performed. Plaintiff received a "fee, charge, or commission" by direct payment of that portion of Balawat's wages from Alliance to plaintiff which plaintiff retained for its service of procuring and providing Balawat to Alliance. Plaintiff's activities meet the plain language definition of an "employment
agency" governed by the Act under N.J.S.A. 34:8-43(1). The totality of plaintiff's conduct is most telling. It arranged the interview with Alliance, supplied Balawat to Alliance, and was compensated based on a percentage of Balawat's wages.
[Id. at 76 (citations omitted).]
Here, we find IFuturistics attempts to distinguish Data Informatics unpersuasive. Similar to the facts in Data Informatics, in this case IFuturistics received a direct payment from Avacorp for Raghuram's work, then paid HRD who in turn compensated Raghuram. Moreover, IFuturistics recommended Raghuram to Avacorp, providing Avacorp with her resume and helping to set up an interview between Avacorp and Raghuram. Notably, IFuturistics recommended more than one individual to Avacorp, providing several resumes of qualified individuals. Additionally, Avacorp controlled and supervised Raghuram's daily work. We thus find that the motion judge did not err when she determined that IFuturistics met the definition of an employment agency or consulting firm pursuant to N.J.S.A. 34:8-43. Avacorp was obviously an "employer," as it contacted IFuturistics seeking to obtain an employee to perform services for which wages were to be paid. Raghuram was an "employee" of Avacorp as Avacorp controlled the daily aspects of her work. IFuturistics received a "fee, charge, or commission" by direct payment of that portion of Raghuram's wages from Avacorp to IFuturistics. Thus, IFuturists' activities meet the plain language definition of an "employment agency" governed by the Act under N.J.S.A. 34:8-43(1).
The Act clearly requires companies engaging in certain employee placement activities, like IFuturistics, to register with the State. Under the Act,
[a] person shall not bring or maintain an action in any court of this State for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act without alleging and proving licensure or registration, as appropriate, at the time the alleged cause of action arose.IFuturistics was unregistered at the time it recommended Raghuram to Avacorp and as an unregistered entity it is prohibited from bringing a claim for a commission from such placement.
[N.J.S.A. 34:8-45(b).]
The balance of IFuturistics' arguments are that summary judgment is an inappropriate remedy for a litigant where discovery is not complete, and that the doctrine of equitable estoppel requires a different result then that reached by the motion judge. We address these contentions despite our review of the record which suggests that these issues may not be properly before us. See R. 2:10-5.
IFuturistics claims that there were two issues of material fact that should have barred the grant of summary judgment prior to discovery. First, that discovery might have provided evidence of Avacorp's awareness that IFuturistics was unlicensed during their relationship. Second, discovery might reveal that Avacorp's promises of imminent payment were knowingly false and made with fraudulent intent. In essence, IFuturistics argues that discovery may have revealed the basis for an equitable argument under which the motion court could have found for it.
"There is no question that summary judgment pursuant to Rule 4:46 normally is not appropriate before the party resisting such a motion has had an opportunity to complete the discovery relevant and material to defense of the motion." In re Ocean Cnty. Comm'r of Registration, 379 N.J. Super. 461, 478 (App. Div. 2005) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)). Nonetheless, "[a] party challenging a motion for summary judgment on grounds that discovery is as yet incomplete must show that 'there is a likelihood that further discovery would supply . . . necessary information' to establish a missing element in the case." Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div. 2012) (quoting J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996)).
In Data Informatics, supra, 338 N.J. Super. at 79, we rejected the plaintiff's argument that equitable principles should apply even in circumstances where the Act would bar suits. There, we "appreciate[d] [the] argument that enforcement . . . should not benefit alleged wrongdoers" but decided that "ultimately, [we had to] balance that concern against a legislative mandate which precludes otherwise possibly meritorious causes of action in order to insure enforcement of a statutory scheme which serves the greater good." Id. at 79-80. We determined that "[s]uch legislative trade-offs are not unknown, and where well-grounded in legitimate public policy considerations, will be enforced." Id. at 80.
To permit IFuturistics to enforce the contract in our courts, in the face of its failure to operate with the mandated registration, and recover the unpaid sums otherwise due would strip the Act of the gravitas intended by the Legislature as a remedial statute.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION