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Breach of Fiduciary Duty Cites

Breach of Fiduciary Duty Cites

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Unreported Cases
Case 1:05-cv-00376-GMS Document 97-2 Filed 06/25/2007 Page 1 of 24
 
 
Slip Copy
 
Page 1Slip Copy, 2006 WL 3751395 (D.N.J.)
 
(Cite as: Slip Copy)
 
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
 
Marjac, LLC v. Trenk 
 
D.N.J.,2006.
 
Only the Westlaw citation is currently available.NOTFOR PUBLICATION
 
United States District Court,D. New Jersey.
 
MARJAC, LLC, a New Jersey Limited LiabilityCompany, DJF Realty, Inc., a New JerseyCorporation, Mario Levecchia, and Jack Fiorenza, Jr.,Plaintiffs,
 
v.
 
Richard TRENK-Township Attorney, Booker,Rabinowitz, Trenk, Lubetkin, Tully, Dipasquale &Webster, P.C., Planning Board for the Township of West Orange, Mayor and Council for the Townshipof West Orange, John Mckeon-Mayor, Susan Borg-Planning Board Director West Orange BuildingDept., Russell Desantis-Building Sub-Code Official,West Orange Health Dept., James Montgomery-Health Inspector, and John Does A-Z, Defendants.
 
Civil Action No. 06-1440 (JAG).
 
Dec. 19, 2006.
 
Michael S. Kasanoff , Red Bank, NJ, for Plaintiffs.
 
William Northgrave,Kevin P. McManimon, McManimon & Scotland, Newark, NJ, forDefendants.
 
OPINION
 
GREENAWAY, JR., U.S.D.J.
 
*1
This matter comes before this Court onDefendants' motion to dismiss Plaintiffs' Complaintfor failure to state a claim upon which relief can begranted, pursuant toFed.R.Civ.P. 12(b)(6). In thealternative, Defendants move for a more definitestatement, pursuant toFed.R.Civ.P. 12(e). For thereasons stated below, Defendants' motion to dismisswill be granted in part and denied in part, andDefendants' motion for a more definite statement willbe denied.
 
I.
 INTRODUCTION 
 
On March 27, 2006, Plaintiffs Marjac, LLC, DJFRealty, Inc., Mario Lavecchia, and Jack Fiorenza(collectively, “Plaintiffs”) filed the instant actionagainst Defendants Richard Trenk,
FN1
the PlanningBoard for the Township of West Orange (“WestOrange”), West Orange Mayor John McKeon, WestOrange Building Department Planning BoardDirector Susan Borg, Building Sub-Code OfficialRussell Desantis, the West Orange HealthDepartment, Health Inspector James Montgomery,and various John Doe defendants (collectively,“Defendants”). Plaintiffs' Complaint alleges thefollowing causes of action against Defendants: (1)tortious interference with prospective economicadvantage; (2) tortious interference with contractualrelations; (3) violation of 42 U.S.C. § 1983pursuantto the Fifth and Fourteenth Amendments; (4)violation of the New Jersey Civil Rights Act,N.J.Stat. Ann.. § 10:6-2(c); (5) breach of fiduciary duty;(6) legal malpractice; (7) civil conspiracy; (8)intentional infliction of emotional distress; (9)estoppel; and (10) racketeering underN.J. Stat. Ann..§ 2C:41-2. Defendants now move to dismiss allcauses of action asserted in Plaintiffs' Complaint onthe ground that each fails to assert a claim uponwhich relief may be granted. In the event that thisCourt finds that any of Plaintiffs' claims are viable,Defendants move for a more definite statement of Plaintiffs' claims.FN1.Richard Trenk serves as counsel forthe Township of West Orange.
II.
 FACTUAL BACKGROUND
 Plaintiffs contend that in September 2002, they spent$1,350,000 purchasing a liquor license and propertyat 466 Prospect Avenue in West Orange, New Jersey(the “Property”), with the goal of establishing alandmark destination featuring Essex County'strendiest new restaurant, one of New Jersey's largestand most upscale nightclubs, and a first-class cateringbusiness. (Complaint (“Compl.”), ¶ 1.) The Propertyis located directly across from the Essex GreenShopping Plaza and a TGI Friday's restaurant. (
 Id .,
2.) To finance their business endeavor, Plaintiffs took out two small business loans totaling $2 million withCommerce Bank, a $508,000 equipment loan withNorthfield Bank, and several personal loans. (
 Id.,
3.) Plaintiffs contend that they have poured more than$4 million into their business, and that they havestaked their livelihoods on its success. (
 Id.
)In November 2002, the West Orange Planning Board(the “Planning Board”) approved Plaintiffs'
Case 1:05-cv-00376-GMS Document 97-2 Filed 06/25/2007 Page 2 of 24
 
Slip Copy
 
Page 2Slip Copy, 2006 WL 3751395 (D.N.J.)
 
(Cite as: Slip Copy)
 
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
 
preliminary plans, and the West Orange BuildingDepartment (the “Building Department”) laterapproved Plaintiffs' completed plans. (
 Id.,
¶ 4.)Plaintiffs allege that they completed 90% of theconstruction of their business under the direct andongoing supervision of the Building Department.(
 Id.
)
*2
On June 16, 2004, Defendant Desantis, a BuildingSub-Code Official, issued a Stop Work Orderallegedly with the assistance of Defendants PlanningBoard Director Borg, and Township Attorney Trenk.(
 Id.,
5.) Desantis purportedly claimed thatPlaintiffs' construction failed to comport with theapproved architectural plans, and that he did not havea copy of the plans. (
 Id.
) Plaintiffs contend thatDesantis actually had a signed-off copy of the plansin his car. (
 Id.
)When the Stop Work Order was issued, Trenk allegedly ordered everyone on the property to stopwork, requested their names, and then proceeded todictate to those persons what he perceived as variouscode violations by Plaintiffs. (
 Id.,
¶ 6.)Two weeks later, the Stop Work Order was lifted byan unspecified court on the condition that Plaintiffsobtain a bond for their construction work. (
 Id.,
¶ 7.)Plaintiffs allege that they complied with the court'sbond order, but were nonetheless confronted byTrenk, who claimed that the bond that had beenposted was insufficient, and otherwise harassedPlaintiffs by stopping by the Property and directingWest Orange personnel to photograph the Propertyrepeatedly. (
 Id.
)Plaintiffs contend that around the time that the StopWork Order was lifted, Trenk began to slander theirItalian heritage. Plaintiffs allege that Trenk orderedmunicipal employees not to conduct any inspectionsof the property because Plaintiffs are “Wiseguys”with a “lot of money” behind them. (
 Id.,
8.) Trenk also allegedly stated, “We don't want these‘Wiseguys' in our town.” (
 Id.
) When Trenk sawPlaintiff Mario LaVecchia wearing a
Sopranos
t-shirt, he allegedly commented, “Keep doing what youare doing, it's going to get you far.” (
 Id.
) He alsopurportedly told a West Orange detective thatPlaintiffs “were not investigated properly” because“there is ‘Mafia Money’ “ behind them. (
 Id.
)Plaintiffs also allege that at a West OrangeDepartment Heads meeting one or more of thosepresent stated that Plaintiffs “will use the place tolaunder money,” when discussing Plaintiffs'development of the Property. (
 Id.
)Plaintiffs contend that Trenk solicited the StateDepartment of Community Affairs (“DCA”) to takeover supervision of Plaintiffs' business project,despite the fact that the DCA usually assumes jurisdiction over public projects subject tocompetitive bidding, as opposed to private projects.(
 Id.,
9.) Plaintiffs contend that their project wasindefinitely delayed as a result of the DCA'sinvolvement because DCA approval requiressubstantially more detail than local planning boardsand building departments. (
 Id.
)In July 2004, the DCA issued a Stop Work Order thatsent Plaintiffs back to the drawing board to createupdated plans for the development of the Property.(
 Id.,
10.) The day after the Stop Work Order wasissued, Trenk allegedly came to the Property with acamera, and began threatening tradespeople workingat the site; Plaintiffs contend that Trenk yelled, “Youhave to stop work and I am calling the Police,” andtold the tradespeople they would not be paid. (
 Id.
)
*3
Plaintiffs further allege that Defendants attemptedto revoke their approvals in August 2004, despiteretired West Orange Construction Code OfficialThomas Biondi's testimony that Plaintiffs hadcomplied with all Code requirements throughout thecourse of construction. (
 Id.,
11.) Also, in August2004, West Orange Police Lieutenant Lang allegedlycommented to one of Plainitffs' attorneys, “Why don'tyou do like the other guys, pay $50,000 and it will goaway.” (
 Id.,
¶ 19.)In September 2004, Trenk allegedly came to theProperty, yelled at workers to stop construction, andcalled the police. Plaintiffs contend that after learningof Trenk's actions, the DCA lifted the Stop Work Order it had issued. (
 Id.,
12.) Despite the lifting of the Stop Work Order, a West Orange Police officer,on the orders of his sergeant, allegedly came to theProperty a few days after the Order had been lifted,and advised Plaintiffs that no work could continue.(
 Id.
)Plaintiffs allege that in October 2004, West Orangeimproperly adopted an ordinance amending itszoning provisions to grant the Planning Board theauthority to revoke previously-granted approvals.Plaintiffs contend that this ordinance violatesmunicipal land use law. (
 Id.,
13.) Pursuant to thisordinance, on February 2, 2005, the Planning Boardadopted a resolution revoking and deeming null andvoid the approvals previously granted to Plaintiffs.
FN2
 (
 Id.
)
Case 1:05-cv-00376-GMS Document 97-2 Filed 06/25/2007 Page 3 of 24

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