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).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0279-17T4

Lonny Hirsch, attorney for respondents/crossappellants.

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. 
3

A-0279-17T4

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 
4

A-0279-17T4

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 
5

A-0279-17T4

$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 
6

A-0279-17T4

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 
7

A-0279-17T4

a similar sixteen-hour daily shift on weekends. The court determined seventytwo 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 
8

A-0279-17T4

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.
9

A-0279-17T4

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
10 A-0279-17T4

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 
11 A-0279-17T4

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 continuance 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 price 

for the assets; whether there was a continuity of business, control[,] or 
12 A-0279-17T4

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 [that] 

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. 
13 A-0279-17T4

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 
14 A-0279-17T4

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 
15 A-0279-17T4

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. 
16 A-0279-17T4

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 
17 A-0279-17T4

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. 
18 A-0279-17T4

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 
19 A-0279-17T4

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 
20 A-0279-17T4

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 
21 A-0279-17T4

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 . . . .
22 A-0279-17T4

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. 
23 A-0279-17T4