                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0279-17T4
                                                                     A-0290-17T4

MOHAMED AOUF,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

PYRAMID EXPRESS
CORPORATION and ALPHA
AMERICAN, LLC, f/k/a
AIRPORT SERVICE OF NJ,
LLC, a/k/a PYRAMID EXPRESS,

     Defendants-Respondents/
     Cross-Appellants.
______________________________

                    Submitted February 26, 2019 – Decided May 10, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-1579-15.

                    Feintuch Porwich & Feintuch, attorneys for
                    appellant/cross-respondent (Donald R. Moran, on the
                    briefs).
            Lonny Hirsch,        attorney    for   respondents/cross-
            appellants.

PER CURIAM

      Defendants Pyramid Express Corporation (Pyramid Express) and Alpha

American, LLC (Alpha American) appeal, and plaintiff Mohamed Aouf

cross-appeals, from the Law Division's August 10, 2017 amended final judgment

that dismissed claims against Alpha American, and issued judgment against

Pyramid Express and Mohammed Faiad, individually, for unpaid and overtime

wages. We have consolidated these appeals for purposes of issuing a single

opinion. We affirm in part, vacate in part, and remand the matter to the trial

court for further proceedings.

                                        I.

      Plaintiff filed a complaint against his employer, defendant Pyramid

Express, Inc., alleging it was the owner and operator of a parking facility for

shuttle buses in Jersey City. In count one, plaintiff claimed he worked for

Pyramid Express as a "watchman or overseer," and was owed $833,480.65 in

wages from February 2006 to February 2015.           Additionally, in count two,

plaintiff claimed Pyramid Express misrepresented his salary, causing him to

receive disability payments in an amount less than what he was entitled.



                                                                           A-0279-17T4
                                        2
      On December 2, 2016, plaintiff amended the complaint to replace Pyramid

Express, Inc., with Pyramid Express, and to add Alpha American, formerly

known as Airport Services of N.J., LLC, as a defendant. Plaintiff alleged that

Alpha American was the "co-owner" of the parking facility, or a "successor

entity," that owned and operated the business. Defendants filed answers to both

complaints in which it denied the allegations and asserted affirmative defenses.

      Prior to trial, the parties stipulated to the applicability of the two-year

statute of limitations under the New Jersey Wage and Hour Law, N.J.S.A.

34:11-56a to -56a38 (Act); N.J.S.A. 34:11-56a25.1. As a result, plaintiff's

recoverable damages were limited to the two-year period preceding the filing of

the complaint, or April 14, 2013.

      The parties also stipulated that the minimum wage from 2013 through

2015 was $7.25, $8.25, and $8.38, respectively. In addition, when discussing

the triable issues, counsel for Pyramid Express and Alpha American advised the

court that Pyramid Express had dissolved operations in the summer of 2015, and

its only remaining assets at the time were "small buses which were turned in for

junk." However, he added that Pyramid Express had a bus route in New York,

which it "transferred" to Alpha American in 2014. Defendants' counsel also

stated that Mohammed Faiad was "president of Pyramid Express" and the "sole


                                                                         A-0279-17T4
                                       3
shareholder of Alpha American." Plaintiff's counsel contended that in light of

Pyramid Express's dissolution, he sought to hold Alpha American liable because

as the successor to Pyramid Express it was responsible for its liabilities pursuant

to Ramirez v. Amsted Industries, Inc., 86 N.J. 332 (1981).

      After the parties agreed to waive their rights to a jury trial, the court

conducted a three-day trial in May 2018, in which plaintiff testified, as did his

friend, Edwin Amin. Plaintiff also relied on documentary evidence. Defendants

presented no witnesses.

      Plaintiff testified that when he began his employment, he worked every

day from 6:00 p.m. until 8:00 a.m. Toward the end of 2006, however, until

February 2015, his work hours increased from 4:00 p.m. to 8:00 a.m., and on

occasion he stayed until 10:00 a.m. to await the arrival of his boss, Faiad. He

also stated that on weekends he worked sixty-four hours from Friday at 4:00

p.m. until 8:00 a.m., Monday morning.

      Plaintiff's responsibilities included working security, cleaning the garage

where the buses parked, collecting rent and insurance from the bus drivers, and

washing, maintaining, and starting the buses owned and operated by Pyramid

Express. Plaintiff testified that Faiad initially paid him $300 in cash each week.

In 2013, however, his pay increased to $350, and in 2014 and 2015, he was paid


                                                                           A-0279-17T4
                                        4
$500 per week.     Plaintiff also explained that on occasion he started the

independent operators' buses, and the drivers would sometimes tip him two or

three dollars, totaling $50 to $100 per week.

      Amin stated that he often picked plaintiff up around 3:45 p.m., and drove

him to work by 4:00 p.m. each day. As to plaintiff's weekend hours, Amin

testified that "on Saturday [and Sunday] [he] usually would bring [plaintiff]

food, cigarettes, and water" because plaintiff could not leave work.

      Plaintiff testified that in 2014 he noticed that the name displayed on some

of the buses, and on the insurance paperwork, changed from Pyramid Express to

Alpha American. Although he acknowledged that he was unfamiliar with the

details, or corporate structure of Pyramid Express or Alpha American, he

believed that Faiad owned both companies.

      At the close of plaintiff's case, defendants moved for the involuntary

dismissal of Alpha American, as the successor company to Pyramid Express,

pursuant to Rule 4:37-2(b). The court dismissed Alpha American, stating that

"[t]here is no evidence . . . that . . . Alpha [American] was the purchasing

corporation and agreed to assume [Pyramid Express's] debts and liabilities."

The court further noted the lack of evidence "that [the transfer] was a

consolidation or merger," that "[Alpha American] [was] merely a continuation


                                                                         A-0279-17T4
                                       5
of [Pyramid Express]," or that "the transaction was entered into fraudulently in

order to escape liability."

      The court, however, reconsidered its decision after hearing further oral

arguments from counsel, and concluded that because there was a "scintilla" of

evidence that plaintiff worked for Alpha American in 2014, dismissal was

inappropriate.    After defendants rested without calling any witnesses, they

renewed their motion, under Rule 4:40-1. In opposing the motion, plaintiff

maintained that defendants failed to cooperate in the discovery process, and thus

Alpha American should not escape liability for the lack of proof that it was a

successor company. The court reserved decision on the motion.

      On May 4, 2017, the court issued its oral decision. The court concluded

that pursuant to N.J.S.A. 34:11-56a4, plaintiff was "covered by the minimum

wage rate" and entitled to overtime payments. The court limited plaintiff's

recovery to the two-year period commencing on April 14, 2013, consistent with

the parties' stipulation.

      The court found credible plaintiff's testimony that he worked sixteen hours

a day, Monday to Thursday. The court, however, determined that plaintiff's

testimony that he worked sixty-four hours from Friday at 4:00 p.m. to Monday

at 8:00 a.m., was not credible. Instead, the court concluded that plaintiff worked


                                                                          A-0279-17T4
                                        6
a similar sixteen-hour daily shift on weekends. The court determined seventy-

two of his weekly hours qualified as overtime.

        Additionally, the court dismissed count two of the complaint because

plaintiff failed to provide sufficient evidence to support his claim. The court

also dismissed the claims against Alpha American, concluding that plaintiff

failed to establish that Pyramid Express "became" Alpha American. The court

memorialized its oral decision in a May 23, 2017 final judgment against Pyramid

Express, in which it awarded plaintiff $66,496.28 for unpaid and overtime wages

for the 2013 to 2015 period, and $25,318.53 in attorney's fees, for a total

judgment of $94,252.73.

        On June 14, 2017, plaintiff filed a motion to amend the judgment to

include Faiad, and for reconsideration of the court's decision dismissing Alpha

American. With respect to his motion to amend, plaintiff asserted that pursuant

to N.J.S.A. 34:11-4.1(a),1 Faiad qualified as his employer under the Act, and


1
    N.J.S.A. 34:11-4.1(a) defines "employer," under the Act, as:

              any individual, partnership, association, joint stock
              company, trust, corporation, the administrator or
              executor of the estate of a deceased individual, or the
              receiver, trustee, or successor of any of the same,
              employing any person in this State. For the purposes
              of this act the officers of a corporation and any agents


                                                                         A-0279-17T4
                                         7
therefore was personally liable for the judgment against Pyramid Express.

Plaintiff never served Faiad with the motion, instead he mailed the motion to

Pyramid Express's and Alpha American's counsel.

      The court heard oral arguments and entered an order on July 21, 2017, in

which it denied plaintiff's request for reconsideration of its decision that Alpha

American was not the successor to Pyramid Express. The court concluded that

the evidence plaintiff presented "fell short [of proving] that Pyramid Express

sold or otherwise transferred assets to Alpha American for the [e]xpress reason

to avoid this lawsuit." The court noted that plaintiff was unable to describe the

relationship between Alpha American and Pyramid Express, and his testimony

that they shared the same location and that Faiad was the boss was insufficient

to establish Alpha American as the successor to Pyramid Express.

      However, the court granted plaintiff's motion to amend the May 23, 2017

judgment to include Faiad as a judgment debtor, and entered judgment against

Pyramid Express and Faiad, individually, for $94,252.73. The court concluded

that holding Faiad personally liable would not violate his due process rights.

The court relied on Richards v. Jefferson County, 517 U.S. 793, 798-99 (1996),



            having the management of such corporation shall be
            deemed to be the employers of the employees of the
            corporation.
                                                                          A-0279-17T4
                                        8
and Taylor v. Sturgell, 553 U.S. 880, 895 (2008), and stated that "[a] nonparty

may be bound by a judgment [when] . . . she or he was adequately represented

by someone with the same interest who was a party if he or she assumed control

over the litigation in which the judgment was rendered." The court further

explained that "[a] nonparty can be bound by a judgment if he or she is virtually

represented by one of the parties."

      The court concluded that Faiad's interests were "adequately represented

through Pyramid Express's counsel in its defense," because he was present

throughout the trial, he spoke with defense counsel numerous times during trial,

and plaintiff's testimony that Faiad was his boss was unrefuted. Consistent with

its oral decision, the court entered an amended final judgment against Pyramid

Express and Faiad on August 10, 2017.

      On appeal, Pyramid Express and Alpha American claim that the court's

wage and hour calculations are not supported by substantial credible evidence

and the court failed to offset the award by the tips plaintiff earned from the

independent bus drivers. Further, Pyramid Express and Alpha American assert

that the court improperly amended the judgment to name Faiad as a judgment

debtor under the Act after trial, and by doing so deprived Faiad of his due

process rights. Pyramid Express and Alpha American also maintain it was error


                                                                         A-0279-17T4
                                       9
for the court to amend the judgment, as plaintiff's motion to amend was barred

by the statute of limitations, or alternatively, the doctrine of laches. In plaintiff's

cross-appeal, he contends that the court erred in dismissing his claims against

Alpha American because "Alpha American . . . [wa]s a continuation of

Pyramid[] Express," and is therefore liable for the judgment against Pyramid

Express.

      We reject plaintiff's cross-appeal and disagree with defendants' claim that

the wage and hour calculations were unsupported by the record. We agree,

however, with defendants' argument that the court committed error in amending

the May 23, 2017 judgment to hold Faiad personally liable.

                                          II.

      Our review of a trial court's fact-finding in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general

rule is that findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence. Deference is especially appropriate

when the evidence is largely testimonial and involves questions of credibility."

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However, we

owe no deference to a trial court's interpretation of the law, and review issues of




                                                                               A-0279-17T4
                                         10
law de novo. State v. Parker, 212 N.J. 269, 278 (2012); Mountain Hill, LLC v.

Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008).

                                         III.

      Applying these standards, we agree with the court that the trial evidence

plaintiff presented "fell short" of demonstrating that Alpha American was

merely a continuation of Pyramid Express. Generally, "where one company

sells or otherwise transfers all of its assets to another company[,] the latter is not

liable for the debts and liabilities of the transferor, including those arising out

of the latter's tortious conduct." Ramirez v. Amsted Industries, Inc., 86 N.J.

332, 340 (1981) (quoting Jackson v. N.J. Mfrs. Ins. Co., 166 N.J. Super. 448,

454. (App. Div. 1978)).       However, there are four exceptions to this rule,

"where[:] (1) the purchaser expressly or impliedly agrees to assume such debts

and liabilities; (2) the transaction amounts to a consolidation or merger of the

seller and purchaser; (3) the purchasing corporation is merely a continu ance of

the selling corporation[;] or (4) the transaction is entered into fraudulently in

order to escape liability for such debts." Jackson, 166 N.J. Super. at 454.

      In determining whether the continuation exception applies to a particular

transaction, a court must consider "whether stock was part of the purchase pri ce

for the assets; whether there was a continuity of business, control[,] or


                                                                              A-0279-17T4
                                         11
management between the two corporations; and whether the alleged successor

corporation assumed the debts of the predecessor corporation." Luxliner P.L.

Export, Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 73 (3rd Cir. 1993). All of these

factors need not be present to demonstrate continuation of the transferor

company. Ibid.

      Here, plaintiff testified that Faiad was the owner of both Pyramid Express

and Alpha American, and that in 2014, the name displayed on some of Pyramid

Express's buses changed to Alpha American. However, he also testified that he

was unaware of the details of Pyramid Express and Alpha American's business,

as these are "things inside the office that [he did not] know about."

      As the trial court noted, plaintiff "can only show that Alpha American was

located in substantially the same location as Pyramid [Express] . . . [a]nd [tha t]

his boss was . . . Faiad." The court correctly characterized plaintiff's testimony

as mere "speculation" about the relationship of the two businesses.              Its

determination that plaintiff failed to meet his burden to establish that Alpha

American was a continuation of Pyramid Express's business is supported by

substantial credible evidence in the record.




                                                                           A-0279-17T4
                                       12
                                       IV.

      Defendants next assert that the court improperly "relied on noncredible

and nonexistent testimony to calculate [plaintiff's] weekend hours" and failed to

offset the judgment by the amount plaintiff earned in tips from independent bus

operators. We disagree.

      In general, plaintiffs have the burden of proving damages by a

preponderance of the evidence. Caldwell v. Haynes, 136 N.J. 422, 436 (1994).

The trial court will "hear[] the case, see[] and observe[] the witnesses, [and]

hear[] them testify," and then "evaluat[e] the veracity of witnesses.'" Cesare,

154 N.J. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). The court

"is not bound to believe the testimony of any witness, in whole or in part." State

v. Muhammad, 182 N.J. 551, 577 (2005) (quoting State v. Bentley Bootery, Inc.,

128 N.J.L. 555, 561 (1942)). Rather, factfinders "may reject what in their

conscientious judgment ought to be rejected and accept that which they believe

to be credible." Ibid. (quoting Bentley Bootery, Inc., 128 N.J.L. at 561).

      Here, the court noted that plaintiff's testimony regarding his hours from

Monday through Thursday was unrefuted, and it accepted as credible that he

worked from 4:00 p.m. to 8:00 a.m. With respect to plaintiff's weekend hours,

however, the court rejected his testimony that he worked from 4:00 p.m. on


                                                                          A-0279-17T4
                                       13
Friday until 8:00 a.m. on Monday. Instead, based on the testimony that it did

credit, the court concluded plaintiff worked sixteen hours a day, seven days a

week. We note that it was unrebutted that plaintiff worked on weekends, as

confirmed by Amin's testimony that he drove plaintiff to work and brought him

supplies on weekends. As the court was entitled to accept as credible part of

plaintiff's testimony, see Muhammad, 182 N.J. at 577, we conclude the court's

findings that plaintiff's weekend hours were likely the same as his weekday

hours was supported by adequate, substantial, credible evidence.

      With respect to Pyramid Express and Alpha American's assertion that the

court erroneously failed to offset plaintiff's damages with the payments he

earned from independent bus operators, we note that defendants fail to cite to

any authority, statutory or otherwise, to support their entitlement to a credit. We

conclude the court properly declined to offset the judgment based on plaintiff's

receipt of tips from third parties, particularly in light of the evidence that

plaintiff was discharging his work responsibilities for Pyramid Express when he

received those tips.

                                        V.

      We agree, however, with Pyramid Express and Alpha American's

argument that the court erroneously amended the May 23, 2017 judgment to hold


                                                                           A-0279-17T4
                                       14
Faiad personally liable. The fundamental requirements of due process are "an

opportunity to be heard at a meaningful time and in a meaningful manner." Doe

v. Poritz, 142 N.J. 1, 106 (1995). As such, "[t]he critical components . . . are

adequate notice, opportunity for a fair hearing[,] and availability of appropriate

review." Schneider v. E. Orange, 196 N.J. Super. 587, 595 (App. Div. 1984).

"Parties whose rights are to be affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified." In re Heller, 73 N.J. 292,

310 (1977) (quoting Fuentes v. Shevin, 407 U.S. 67, 80 (1972)).

      Stated otherwise, "[t]he right to a hearing includes not only the right to

present evidence[,] but also a reasonable opportunity to know what claims must

be defended against and what consequences are proposed." Id. at 311 (quoting

Dep't of Revenue v. Jamb Discount, 301 N.E.2d 23, 27 (Ill. App. Ct. 1973)).

"Due process is not a fixed concept, however, but a flexible one that depends on

the particular circumstances." Doe, 142 N.J. at 106 (citing Zinermon v. Burch,

494 U.S. 113, 127 (1990)). Generally, without being made a party by service of

process, "one is not bound by a judgment in personam in a litigation." Hansberry

v. Lee, 311 U.S. 32, 40 (1940).

      Fundamentally, "a corporation is 'an entity wholly separate and distinct

from the individuals who compose and control it.'" N.J. Dep't of Envtl. Prot. v.


                                                                            A-0279-17T4
                                        15
Dimant, 418 N.J. Super. 530, 546 (App. Div. 2011) (quoting Yacker v. Weiner,

109 N.J. Super. 351, 356 (Ch. Div. 1970)).             "[A] primary reason for

incorporation is the insulation of shareholders from the liabilities of the

corporate enterprise." Richard A. Pulaski Constr. Co. v. Air Frame Hangars,

Inc., 195 N.J. 457, 472 (2008) (quoting State, Dep't of Envtl. Prot. v. Ventron

Corp., 94 N.J. 473, 500 (1983)). We acknowledge, however, that "[w]here the

corporate form is used by individuals for the purpose of evading the law, or for

the perpetuation of fraud, the courts will not permit the legal entity to be

interposed so as to defeat justice." Karo Marketing Corp., Inc. v. Playdrome

America, 331 N.J. Super. 430, 442 (2000) (quoting Trachman v. Trugman, 117

N.J. Eq. 167, 170 (Ch. Div. 1934)).

      In Nelson v. Adams USA, Inc., 529 U.S. 460 (2000), the United States

Supreme Court held that the District Court's decision to amend a judgment after

trial to hold the president and sole shareholder of a corporation personally liable

for a judgment against the company, without affording the president an

opportunity to contest his personal liability, was a violation of his due process

rights.   The Court noted that "nothing in the record indicat[ed] that [the

president] affirmatively relinquished his right to respond on the merits of the

case belatedly stated against him in his individual capacity" and a post-judgment


                                                                           A-0279-17T4
                                       16
appeal "did not provide an adequate opportunity to defend against the imposition

of [personal] liability." Id. at 466.

      In reversing the amended judgment against the corporation's president, the

Court held that the president:

             was never afforded a proper opportunity to respond to
             the claim against him. Instead, he was adjudged liable
             the very first moment his personal liability was legally
             at issue. Procedure of this style has been questioned
             even in systems, real and imaginary, less concerned
             than ours with the right to due process.

             [Id. at 468.]

      Here, as in Nelson, Faiad's personal liability was never litigated at trial.

Faiad was never served with the complaint, nor provided any notice that he may

be held personally liable for any judgment against Pyramid Express or Alpha

American. He did not have the opportunity to file pleadings, conduct discovery,

or prepare a defense. In fact, based on the trial proceedings, he reasonably

understood that his personal liability was not at issue. Indeed, when plaintiff

amended the complaint in December 2016, he did so to add Alpha American,

the alleged successor to Pyramid Express, not to name Faiad, or to allege that

he was Faiad's employer under the Act. In addition, when plaintiff moved to

amend the judgment, he failed to even serve Faiad with the motion papers,

instead electing to serve counsel for Pyramid Express and Alpha American.

                                                                          A-0279-17T4
                                        17
      Further, although Pyramid Express and Alpha American waived their right

to a jury trial, by amending the judgment after trial, Faiad was deprived of his

opportunity to request a jury trial, which he was expressly entitled to under

N.J.S.A. 34:11-66. Under these facts, we conclude the court's decision to amend

the judgment to hold Faiad personally liable violated his due process rights.

      Plaintiff's reliance on Bussell v. DeWalt Prods. Corp., 259 N.J. Super. 499

(App. Div. 1992) to support his contention that Faiad's due process rights were

protected because he was "cognizant of the lawsuit at all stages" is misplaced.

In Bussell, after post-judgment proceedings, the trial court entered judgment

against Black & Decker (U.S.), Inc., as the successor corporation of DeWalt

Products Corporation. Noting that an individual not named as a party may be

held liable for the judgment "if he participated in the suit or had an opportunity

to be heard," id. at 510-11, we concluded that Black & Decker, although not

named in the complaint, "was effectively represented throughout litigation." Id.

at 510.

      In reaching this conclusion, the court found significant that service of the

complaint was accepted by the controller of Black & Decker's DeWalt Division,

that defense counsel, who later represented Black & Decker, was hired by Black

& Decker's insurance carrier, and that Black & Decker admittedly participated


                                                                          A-0279-17T4
                                       18
in the defense of the claim against DeWalt due to its "potential exposure." Id.

at 509-10. The court also noted that Black & Decker indicated to the plaintiff

that it conducted discovery and that its insurance carrier had a policy covering

the claim. Id. at 510.

      Here, however, Faiad, who was not named in the complaint, was not

provided any notice prior to trial that plaintiff would seek to hold him personally

liable as plaintiff's employer or for Pyramid Express's liability. While Black &

Decker admitted to the court that it participated in the defense because of its

"potential exposure," there is nothing in the record to indicate that Faiad had any

idea that he might face personal liability, or that by appearing at trial he would

be waiving his right to a jury trial, and substantive defenses to plaintiff's claim.

      Similarly, neither the Taylor nor Richards decisions, relied upon by the

trial court and plaintiff on appeal, support imposing personal liability against

Faiad. In both cases, the Supreme Court discussed the preclusive effect of

judgments under res judicata principles. Taylor, 553 U.S. 880, 895 (discussing

the "'virtual representation' exception to the rule against nonparty preclusion");

Richards, 517 U.S. 793, 801-02 (concluding there was not "adequate

representation" to permit the application of res judicata). Rather than rely on

issue or claim preclusion to bind Faiad to the Pyramid Express judgment, the


                                                                            A-0279-17T4
                                        19
trial court amended the judgment to include Faiad. Even were we to consider

those claim preclusion principles, however, we are convinced they have no

application here.

      As to the court's reliance on Pyramid Express's purported "virtual

representation" of Faiad, the Supreme Court in Taylor concluded a "broad theory

of virtual representation," was at odds with the "general rule that a litigant is not

bound by a judgment to which she was not a party." 553 U.S. at 898. The

Supreme Court noted that the concept had become a source of "disagreement

among the Circuits," id. at 891, and held that the doctrine should be rejected

because it "authorize[d] preclusion based on identity of interests and some kind

of relationship between the parties and non-parties, shorn of . . . procedural

protections . . . ." Id. at 901.

      Further, the Taylor court also explained the concept of "adequate

representation," typically applied in class actions, and defined it to include

circumstances where "(1) [t]he interests of the nonparty and her representative

are aligned . . . [;] (2) either the party understood [itself] to be acting in a

representative capacity or the original court took care to protect the interests of

the nonparty . . . [;] [and] (3) notice of the original suit to the persons alleged to

have been represented . . . ."       Id. at 900 (citations omitted) (first citing


                                                                              A-0279-17T4
                                         20
Hansberry, 311 U.S. at 43; then citing Richards, 517 U.S. at 801-02). These

circumstances are not present here.         Pyramid Express was defending its

corporate interests, not Faiad's potential personal liability or his role as

plaintiff's employer. Accordingly, their interests were not aligned. Further,

there is nothing in the record to indicate that Pyramid Express and Alpha

American understood that they were representing Faiad in his personal capacity,

and the court did not "take care to protect" Faiad's due process rights.

      Finally, plaintiff maintains that because Faiad qualifies as his employer,

as defined in N.J.S.A. 34:11-4.1(a), he should be held personally liable for the

judgment under the Act. We disagree.

      In support of this argument, plaintiff relies on the court's holding in

Mulford v. Computer Leasing, 334 N.J. Super. 385, 393-94 (Law Div. 1999), in

which the court concluded:

            [t]he [Act] imposes personal liability on the managing
            officers of a corporation by deeming them the
            employers of the employees of the corporation.
            N.J.S.A. 34:11-4.1. . . . Employees are the obvious
            special beneficiaries of the statute; and to allow the
            civil action will plainly further its purpose. The statute
            thus impliedly confers on employees a private right of
            action in court against employers (as defined in
            N.J.S.A. 34:11-4.1) to protect and enforce their rights
            thereunder . . . .



                                                                           A-0279-17T4
                                       21
      While Mulford establishes a private right of action against employers,

nothing in that case, or N.J.S.A. 34:11-4.1(a), vitiates a party's fundamental due

process rights. Thus, while Faiad may have qualified as an employer under the

Act, plaintiff was still required to name him in a properly served complaint,

rather than amending the judgment to effectively pierce Pyramid Express's

corporate veil after trial without any attendant proofs.

      In light of our conclusion that the court violated Faiad's due process rights

by amending the May 23, 2017 judgment to hold him personally liable, we need

not address defendants' assertion that plaintiff's motion to amend the May 23,

2017 judgment was barred by the statute of limitations, or alternatively, the

doctrine of laches.

      To the extent we have not specifically addressed any of the parties'

remaining arguments, we conclude they are of insufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Accordingly, we vacate the August 10, 2017 amended final judgment and

remand the matter for the limited purpose of reinstating the May 23, 2017

judgment against Pyramid Express.

      Affirmed in part, vacated in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.


                                                                           A-0279-17T4
                                       22
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