                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                        NOT PRECEDENTIAL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



                                             2
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.




   1
    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.

                                              3
              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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