VENTURES UNLIMITED, INC. VS. NXGEN INFOTECH, INC. (L-6628-17, MIDDLESEX COUNTY AND STATEWIDE)

V
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5034-18T2

VENTURES UNLIMITED, INC.,

          Plaintiff-Appellant,

v.

NXGEN INFOTECH, INC., and
SURESH KUMAR,

          Defendants-Respondents,

and

KRANTHI
BHUSHAN PULLAGUJJU,

     Defendant.
______________________________

                   Submitted November 5, 2020 – Decided January 11, 2021

                   Before Judges Sumners and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-6628-17.

                   Law Offices of Susheela V. Verma, attorney for
                   appellant (Nishi Patel and Susheela Verma, on the
                   briefs).
            LoFaro & Reiser, LLP, attorneys for respondents
            (Glenn R. Reiser, on the brief).

PER CURIAM

      Plaintiff Ventures Unlimited, Inc. sued defendants Nxgen Infotech, Inc.

and Suresh Kumar1 seeking damages related to their referral of a contract worker

to plaintiff. Plaintiff appeals the trial court's orders denying its motions to

amend its complaint and to compel discovery. Plaintiff also appeals the court's

order granting defendants' summary judgment motion dismissing its complaint

with prejudice. We affirm all three orders.

                                       I.

      Plaintiff provides information technology (IT) and temporary staffing

services to its clients. Nxgen offers end-to-end IT staffing and consulting

solutions for short- and long-term projects. Nxgen has two employees, Kumar,

its human resources manager, and his wife, its president and owner. Kumar

offered plaintiff the temporary contract services of Kranthi Bushan Pullagujju

to fulfill the needs of one of plaintiff's clients, Larson &Toubro Infotech Ltd.

(L&T). In doing so, he provided Pullagujju's resume, and identification and



1
  Also sued was Kranthi Bushan Pullagujju. However, he was never served and
is not a party to this appeal.
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immigration documents. L&T interviewed a person purporting to be Pullagujju

at least three times and used a third-party service to investigate his background

before entering into a supplier contract with plaintiff to retain Pullagujju's

services.

      Relevant to this appeal, the contract provided:

            [Nxgen] warrants that all information provided by [its]
            employees in consideration for providing services to
            [plaintiff] and its [c]lients is true to the best of
            [Nxgen's] and [Nxgen's] employees['] knowledge. This
            includes, but is not limited to, information provided in
            resumes, references, and interviews. [Nxgen] certifies
            that personnel provided under this Agreement are not
            restricted from providing services to [plaintiff's]
            [c]lient by any employment or other agreements and
            will not create any conflict of interest. [Nxgen]
            understands that any misstatements or lack of candor by
            [Nxgen] or its employees constitute[s] a material
            breach of this Agreement and may be grounds for
            immediate termination of individual [w]ork [o]rders, or
            the Agreement in its entirety, with no liability to
            [plaintiff.]

                  ....

            [Plaintiff] and [Nxgen] agree that neither shall be
            entitled to recover from the other for any incidental,
            indirect, special or consequential damages sustained
            resulting from the action or inaction of the other under
            this Agreement, whether the cause of action against the
            other is in contract, breach of warranty, tort, gross
            negligence or otherwise, including, but not limited to
            lost profits, lost opportunities and/or delay damages,


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                                       3
             even if the other party was advised of or was aware of
             the potential for damages.

The contract also stated, "[n]o other agreements or understandings, whether

written or oral, including proposals, quotations or acknowledgements, shall be

considered as a part of this Agreement."

      Pullagujju, assigned to work for one of L&T's clients, was terminated

about ten days later because he was not qualified to perform the required work

duties. Plaintiff was not billed by defendants for Pullagujju's services as set

forth in the contract.

                                        II.

      We first address the trial court's order denying plaintiff's motion for leave

to amend its complaint.     Plaintiff sued defendants for lost profits, loss of

anticipated business, and damaged reputation because L&T "suspended" its

contract due to the referral of Pullagujju. Plaintiff maintained that in offering

Pullagujju's services to L&T, it relied upon Kumar's knowingly fabricated

documentation regarding Pullagujju's experience and misrepresentations that he

had worked for Nxgen. Plaintiff further alleged that an "impersonator" of

Pullagujju appeared at the interview with L&T.

      Plaintiff's initial complaint alleged breach of contract, fraud, conspiracy,

tortious interference with contractual relationship, and unjust enrichment.

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Allegations of breach of covenant of good faith and fair dealing were made

solely as to Nxgen. Plaintiff's motion––filed about a month prior to the third

extended discovery end date and after written discovery and depositions were

completed––sought to add new claims regarding piercing the corporate veil and

fraud in the inducement.        In its amended counts, plaintiff demanded

"compensatory and punitive damages," as it did in its initial complaint.

      Plaintiff essentially argues that its amendment should have been granted

based upon the liberal standard found in Rule 4:9-1. Prime Acct. Dep't. v. Twp.

of Carney's Point, 

212 N.J. 493

, 511 (2013); Rosario v. Marco Const. and

Mgmt., Inc., 

443 N.J. Super. 345

, 352 (App. Div. 2016). Plaintiff reasons the

amendment would not have caused any delays, prejudice, or burden on any party

or the court. We separately address the rejected new claims.

      A. Fraud in the Inducement

      Plaintiff contends the addition of a fraud in the inducement claim was

"fundamentally necessary . . . so that its claims against [d]efendants were

streamlined and compatible with what was discovered during the litigation

process." Plaintiff acknowledges, as it did before the trial judge, that the fraud

count in the original complaint is distinct from fraud in the inducement. The

judge, citing Cutler v. Dorn, determined plaintiff's motion to add the claim was


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                                        5
not warranted "[w]here[, as here,] the merits are marginal and the substance

generally irrelevant to the main claim" and the proposed amendment would

"unduly protract the litigation and cause delay." Cutler, 

390 N.J. Super. 238

,

257 (App. Div. 2007) (holding that the trial court's denial of plaintiff's motion

to amend his discrimination claim at trial to include a claim of retaliation was

warranted where "defense was not on notice of an intended additional claim . . .

and would need additional time to prepare to defend such a claim" and allowing

the amendment "would 'change the entire complexion of the case'"), aff'd in part,

rev'd in part, 

196 N.J. 419

, 441 (2008). The judge told plaintiff's counsel:

            You have a complaint that includes fraud. I don't see
            fraud in the inducement, anything that you've told me,
            that you couldn't have pled in the beginning. I haven't
            read the transcript again[,] but I remember on the
            original summary judgment return date, [2] we argued
            about it and the language is pretty — all[-]
            encompassing in that contract.

            And so one of the things — whether you did it off the
            cuff or whether or not you had already thought it
            through or maybe that was part of your ultimate
            strategy[,] but you said, look, I don't need to be dictated
            to by the language of this contract and its strictness,
            including torts and all the other things that it doesn't
            allow you to sue for because I wouldn’t have entered
            into this if I had known that they were going to send the

2
  Defendants' initial summary judgment motion was denied without prejudice
for being "unripe." Defendants' refiled summary judgment motion is the subject
of this appeal.
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                                        6
             wrong person. So you knew it at that time. You could
             have amended immediately. You already made those
             arguments to me.

                    ....

             . . . But you have not provided me with reasonable
             grounds to amend the complaint at this time with
             something you've already known about and seemingly
             was the genesis of your whole case.


      We take no issue with the judge's finding that allowing the amendment would

further prolong the litigation. Plaintiff was aware of facts relied upon to support a

fraud in the inducement claim when the litigation commenced. By the time plaintiff

moved to amend, discovery had already been extended discovery three times–the

last time to allow plaintiff the opportunity to procure an expert report. Although the

amendment request was not made at trial as in Cutler, to oppose these new

allegations, defendants would certainly request an extension or re-opening of

discovery to challenge the claim that they fraudulently induced plaintiff to enter into

the contract. The court would be hard pressed not to grant such a request.

      Moreover, we favor defendants' argument that, as a matter of law, the

proposed fraud in the inducement amendment does not allow plaintiff the

compensatory damages––lost profits, loss of anticipated business, and harm to

reputation––and punitive damages they sought as relief for their new claim.


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                                          7
Fraud in the inducement provides a cognizable basis for equitable relief in the

event a false promise induced reliance. See Lipsit v. Leonard, 

64 N.J. 276

, 283

(1974). However, "[i]n an action for equitable fraud, the only relief that may be

obtained is equitable relief, such as rescission or reformation of an agreement

and not monetary damages." Daibo v. Kirsch, 

316 N.J. Super. 580

, 591-92 (App.

Div. 1998) (quoting Enright v. Lubow, 

202 N.J. Super. 58

, 72 (App. Div. 1985)).

Plaintiff did not demand recission of the contract. And had it done so, there

were no damages because it never paid defendants for referring Pullagujju.

Hence, there was no legal reason for the judge to allow plaintiff to amend its

complaint to include a fraud in the inducement claim. See Murray v. Plainfield

Rescue Squad, 

418 N.J. Super. 574

, 591 (2011) (citing Notte v. Merch.'s Mut.

Ins. Co.,185 N.J. 480, 501 (2006)).

      In sum, the "[l]ateness of the motion coupled with apparent lack of merit

virtually dictates denial." Verni ex rel. Burstein v. Harry M. Stevens, Inc., 

387 N.J. Super. 160

, 197 (App. Div. 2006) (quoting Pressler, Current N.J. Court

Rules, cmt. 2.2.2. on R. 4:9-7 (2006)).

      B. Piercing the Corporate Veil

      Plaintiff maintains that piercing the corporate veil is a well-established

cause of action. See Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super.


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                                          8
388, 393 (App. Div. 1989). Plaintiff asserts that when a corporate officer's

actions were the dominating force of bad conduct, the corporate veil can be

pierced. Kugler v. Koscot Interplanetary, Inc., 

120 N.J. Super. 216

, 255-57 (Ch.

Div. 1972). Focus is "on the acts of the individual employee or corporate officer

to determine whether the specific individual had engaged in conduct" that was

prohibited. Allen v. V&A Bros., Inc., 

208 N.J. 114

, 132 (2011).

      Plaintiff argues there is "little distinction between [Nxgen] and [Kumar

that] would warrant an invocation of the corporate veil doctrine." Plaintiff

contends that "all of the relevant elements for piercing the corporate veil" exist

because Kumar and his wife are the only employees of Nxgen, which is run out

of their home; the company is owned exclusively by the wife; and Kumar is in

fact the company's president. In addition, Kumar was the contact person for all

dealings with plaintiff and signed all pertinent documents.

      We see no abuse of discretion in the judge's denying amendment of this

application. The judge found its addition of this claim would be out of line for

the same reason he did not allow the fraud in the inducement claim amendment.

In addition, had the amendment been allowed it would have been futile for the

reasons stated below in affirming the summary judgment dismissal of the

complaint. See Verni ex rel. 

Burstein, 387 N.J. Super. at 197

.


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                                        9
                                         III.

      At the same proceeding where the judge denied plaintiff's motion to

amend, he denied the motion to compel discovery. Plaintiff sought to compel

Nxgen's: W-2 statements for 2017; I-9 documents for 2017; payroll records for

2017 to the present; bank statements from January 1, 2017 to the present; W-2

employees' names for 2017; personnel names whose services were procured for

third parties since 2014; third-party employment contracts since 2014; and e-

verification history during 2017.       Contending defendants' prior discovery

responses were fictitious, plaintiff contends our liberal discovery standards

under Rule 4:10-2(a) were not applied. See Payton v. N.J. Tpk. Auth., 

148 N.J. 524

, 535 (1997); Shanley & Fisher, P.C. v. Sisselman, 

215 N.J. Super. 200

, 216

(App. Div. 1987). We disagree.

      An appellate court "generally defer[s] to a trial court's disposition of

discovery matters unless the court has abused its discretion or its determination

is based on a mistaken understanding of the applicable law." Pomerantz Paper

Corp. v. New Cmty. Corp., 

207 N.J. 344

, 371 (2011) (quoting Rivers v. LSC

P'ship, 

378 N.J. Super. 68

, 80 (App. Div. 2005)). The judge gave cogent reasons

for denying plaintiff's motion. He stated:

            . . . [I]t's too far afield, and I don't think it's warranted.


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                                         10
                   ....

            . . . If you think you have enough to impeach a man's
            credibility, there's a stopping point and I can't fathom,
            really, what the banking records are going to show
            without an exhaustive review of something defined [as]
            a needle in a haystack . . . . I did rule on it. If I didn't
            properly [en]unciate it at the time, I meant to but not
            only was there a technical violation[,] but I think it's a
            fishing expedition, not reasonably calculated to lead to
            discoverable materials . . . . I think, focus in on what
            your allegations are in your complaint, which is about
            [] one — placement of one individual. So[,] I'm not
            going to give you that.


      We discern no abuse of discretion in the judge's ruling. Moreover, as

defendants point out, plaintiff's contention is weakened by its failure to contest

the judge's prior order quashing the subpoena of a Virginia bank seeking Nxgen's

banking records.

                                        IV.

      Plaintiff contends the judge erred in dismissing its complaint because

viewing the facts in the light most favorable to its position, defendants' failure

to perform their contractual duties caused it to sustain busines losses.          In

addition, citing an unpublished federal district court opinion, plaintiff argues

defendants' tortious conduct of fraud or misrepresentation concerning

Pullagujju–––fabricated resume, impostor interviewee, misrepresentations


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                                       11
about the background investigation–––predates their contract, inducing plaintiff

to enter into their contract, which is therefore unenforceable. Plaintiff further

asserts that its tort claims cannot be barred by the economic loss doctrine. These

arguments lack merit.

      We apply "the same standard governing the trial court" when reviewing a

summary judgment order. Oyola v. Xing Lan Liu, 

431 N.J. Super. 493

, 497

(App. Div. 2013). We accord no deference to the trial judge's legal conclusions.

Nicholas v. Mynster, 

213 N.J. 463

, 478 (2013). We detail the undisputed facts

presented and consider them in the light most favorable to the party opposing

summary judgment. See Angland v. Mountain Creek Resort, Inc., 

213 N.J. 573

,

577 (2013) (citing Brill v. Guardian Life Ins. Co., 

142 N.J. 520

, 523 (1995)).

Summary judgment is appropriate when the record reveals "no genuine issue as

to any material fact" and "the moving party is entitled to a judgment or order as

a matter of law." R. 4:46-2(c).

      The parties entered into a binding supplier agreement containing a no

liability provision that unequivocally bars either party from pursuing damages

"not limited to lost profits [or] lost opportunities" under the agreement due to

"the action or inaction of the other . . . whether the cause of action against the

other is in contract, breach of warranty, tort, gross negligence or otherwise,


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                                       12
. . . ."   Hence, in viewing plaintiff's claims as contract-based, seeking

"consequential damages [and] loss of profit[,]" the court correctly found that

this contractual provision "says you can't sue [defendants] for that."

      In the alternative, the judge determined that plaintiff's recovery under a

tort theory is barred by the economic loss doctrine. The doctrine prohibits a

plaintiff "from recovering in tort economic losses to which their entitlement only

flows from contract." Bracco Diagnostics, Inc. v. Bergen Brunswig Drug Co.,

226 F. Supp. 2d 557

, 562 (D.N.J. 2002) (quoting Duquesne Light Co. v.

Westinghouse Elec. Co., 

6 F.3d 604

, 618 (3d Cir. 1995)).            The doctrine

precludes a tort remedy in "a contractual relationship unless the breaching party

owes an independent duty imposed by law." Saltiel v. GSI Consultants, Inc.,

170 N.J. 297

, 316-17 (2002) (holding that "the existence of duties that are

specifically imposed by law in New Jersey . . . can be enforced separately and

apart from contractual obligations.").      Because plaintiff failed to establish

defendants had an independent duty of care under the law, the judge was correct

in holding it could not pursue tort claims against defendants.       The judge's

decision to grant summary judgment is legally sound.

      Affirmed.




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                                       13

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