UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

A.A. ACTION COLLECTION CO., 

INC. d/b/a ACTION 

COLLECTION,

 Plaintiff,

v.

RICHARD DWECK, et al.,

 Defendants. 

 

Civil Action No.

2:11-CV-0364-SCM

OPINION AND ORDER ON 

DEFENDANT RICHARD DWECK’S 

MOTION IN LIMINE [D.E. 177]

STEVEN C. MANNION, United States Magistrate Judge.

Before the Court is a motion in limine by Defendant,

Richard Dweck (“Mr. Dweck”) to bar Plaintiff, A.A. Action 

Collection Co., Inc. (“A.A. Action”) from using as evidence Mr. 

Dweck’s guilty plea, conviction, and sentence from a related 

criminal matter.1 The Court has reviewed the parties’ 

submissions and decided this motion without oral argument. For 

the following reasons, the Court GRANTS the motion in limine.

I. BACKGROUND

This is a misrepresentation, fraud, and conversion action 

alleged by A.A. Action. In August of 2004, A.A. Action hired Mr. 

 

1 (ECF Docket Entry No. (“D.E.”) 177).

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Dweck to develop new customers for the company.2 A.A. Action

alleges that Mr. Dweck unlawfully took property when he failed 

to distribute monies received from debtors to many of A.A. 

Action’s creditor customers.3 Mr. Dweck has counterclaimed for 

breach of fiduciary duty and unjust enrichment.4

Prior to this civil action, Mr. Dweck was a defendant in a 

criminal action arising out of the same activity, State of New 

Jersey v. Richard Dweck (Indictment No. 12-6-1746). The 

criminal action alleged that Mr. Dweck stole from A.A. Action, a 

crime of the Second Degree.5 Mr. Dweck faced a maximum penalty 

of five years imprisonment if he was convicted.6 Rather than go 

to trial, Mr. Dweck entered into a plea agreement. As part of 

the plea agreement, the State moved to amend the charge in Count 

One of the Indictment downward from second degree to third 

degree theft, and Mr. Dweck agreed to plead guilty to third 

 

2 (D.E. 1, Complaint ¶ 24).

3 (Id., Complaint at ¶ 38).

4 (D.E. 86, Amended Answer at ¶¶ 139-144).

5 (D.E. 177, Certification of Jeffery ¶ 6 (citing NJSA 2C:20-

3(a)).

6 (D.E. 179, Certification of Lombardi Ex. A, New Jersey Judiciary 

Plea Form).

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degree theft.7 The State also agreed to dismiss the charge in 

Count Two during sentencing.8 

During the plea hearing, the prosecutor stated that the 

State would recommend noncustodial probation and restitution of 

$150,000.9 During the hearing, Mr. Dweck’s attorney was ordered 

to perform an allocution during which he asked Defendant a 

series of questions to confirm the nature of the criminal 

activity for which he was pleading guilty.10 The Court’s 

Judgment of Conviction resulting from the plea hearing included 

a civil reservation, which stated that the “[j]udgment of 

conviction shall not be used in civil proceeding.”11

On June 17, 2016, Mr. Dweck filed the instant motion in 

limine. On June 30, 2016, A.A. Action filed its opposition 

brief, arguing that Mr. Dweck waived his immunity when he 

provided testimony at his deposition in the civil matter that 

was contradictory to his testimony in the criminal matter.12 

 

7(Id. Ex. B, Transcript of Plea, 14-15). 

8 (Id. at 15).

9 (Id. at 3-4; See also id. Ex. A, New Jersey Judiciary Plea 

Form).

10 (Id. Ex. B, at 17-19).

11 (Id. at Ex. A, New Jersey Judiciary Plea Form).

12 (D.E. 178, Pl.’s Opp. Brief at 6).

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Mr. Dweck argues in response that he did not waive the civil 

reservation because the exception for enforcement of civil 

reservations falls “under a particular set of facts which are 

not present in this case.”13

II. LEGAL STANDARD

“The Court may hear motions in limine because it has the 

inherent authority to manage cases brought before it.”14 “An ‘in 

limine ruling on evidence issues is a procedure which should, in 

the trial court’s discretion, be used in appropriate cases.’”15

An appropriate case for such a motion is when the court can 

shield the jury from unfairly prejudicial evidence.16 An in 

limine ruling may foster efficiency for the court and for 

counsel by preventing needless argument at trial.17

 

13 (D.E. 182, Def.’s Reply Brief at 5).

14 Ebenhoech v. Koppers Industries, Inc., 239 F. Supp. 2d 455, 

460 (D.N.J. 2002) (citing Luce v. United States, 469 U.S. 38, 40 

n.2 (1984)).

15 Id. (quoting In re Japanese Elec. Prods. Antitrust Litig., 723 

F.2d 238, 260 (3d Cir. 1983)).

16 Id. (citing United States v. Romano, 849 F.2d 812, 815 (3d.

Cir. 1988)).

17 New Jersey Civil Procedure § 16-2:2 (citing Bradley v. 

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)).

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III. DISCUSSION AND ANALYSIS

There are two issues before the Court. First, whether Mr. 

Dweck waived his civil reservation by providing deposition

testimony in the civil proceeding that was inconsistent with his 

guilty plea in the criminal proceeding. Second, whether A.A. 

Action can use the contradictory testimony to impeach Mr. 

Dweck’s credibility if the immunity is not waived.

A. New Jersey Rule 3:9-2 Applies in this Case

The Rules Governing the Courts of New Jersey allow a 

criminal defendant to take a civil reservation to prevent his 

guilty plea from being used against him in a subsequent civil 

case.18 The purpose of the rule is “to avoid an unnecessary 

criminal trial of a defendant who fears that a civil claimant 

will later use his plea of guilty as a devastating admission of 

civil liability.”19 The rule requires “good cause,” which may 

exist when the civil reservation incentivizes the defendant to 

plead guilty, thus saving the court from potentially costly 

litigation.20

 

18 R. 3:9-2.

19 Stone v. Police Dept. of Keyport, 191 N.J. Super. 554, 558 

(N.J. Super. 1983).

20 See State v. Haulaway, Inc., 257 N.J. Super. 506, 508 (App. 

Div. 1992) (stating good cause exists when the civil reservation 

is necessary to the defendant pleading guilty). 

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The Superior Court included a civil reservation in its 

Judgment of Conviction signed by Mr. Dweck stating, “Judgment of 

Conviction shall not be used in civil proceeding.”21 No party

argues that the civil reservation was invalid. The parties 

disagree as to whether Mr. Dweck waived civil reservation 

through his deposition testimony.

B. The Civil Reservation Is Not Waived Based on Stone

The court in Stone v. Police Dept. of Keyport discussed an 

exception for when a defendant may waive their civil 

reservation.22 In cases where the defendant in the criminal 

matter is the plaintiff in the subsequent civil matter, the 

reservation can be waived if the plaintiff “offered his own 

testimony to support his civil claim and that testimony is 

inconsistent with the sworn testimony he gave to support his 

plea.”23 The court did not state a rule that expanded this 

exception to include situations in which the criminal defendant 

is the civil defendant. Thus, the court’s application and 

statement of the law suggests that the exception applies only 

 

21 (D.E. 177, Def.’s Brief at Ex. A). 

22 Stone, 191 N.J. Super. at 558.

23 Id.

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when the criminal defendant is the plaintiff in the subsequent 

civil action.

The instant action is distinguishable from Stone. In Stone, 

the defendant in the criminal matter attempted to use his 

contradictory testimonies to bolster his civil claims against 

the officers involved in the criminal matter.24 Here, Mr. Dweck

is not contradicting his criminal plea in such a way as to 

bolster an affirmative claim; he is only defending himself 

against the claims in the civil action.

A.A. Action argues that because Mr. Dweck’s deposition 

testimony contradicts his admissions during the Plea Hearing, 

his civil reservation should be waived. This argument 

frustrates the purpose of the rule. Every defendant who has a 

civil reservation from a prior criminal matter would likely 

waive their reservation when defending against a civil claim and 

the civil reservation would no longer have any benefit. Because 

Mr. Dweck is the defendant in both the criminal and civil 

matters, Stone does not apply and the reservation was not 

waived.

 

24 Id.

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C. The Testimony Is Not Necessarily Inconsistent

A defendant who maintains his innocence may plead guilty to 

a charge after weighing the costs of litigation against the risk 

of conviction.25 The penalties a defendant faces after entering 

into a plea agreement are almost always less harsh than the 

defendant would have faced if convicted at trial. 

Notwithstanding a defendant’s innocence, a guilty plea may be a 

better alternative to fighting charges, risking conviction and 

harsher penalties. Where the defendant chooses to plead guilty, 

he may be required to undergo an allocution during which he is 

asked to admit to a series of questions regarding the nature of 

the criminal activity for which he pled guilty. 

In this case, Mr. Dweck, as part of his plea, was required 

to undergo an allocution.26 Mr. Dweck faced a potential maximum 

penalty of five years imprisonment, but chose to plead guilty, 

resulting in the prosecutor recommending noncustodial probation 

and payment of restitution. Mr. Dweck’s deposition testimony 

was consistent with the concept of civil reservation—that one 

may plead guilty to a crime but that the plea would not be used 

against him in any civil trial. During his deposition, 

 

25 See Eaton v. Eaton, 119 N.J. 628, 644-45 (N.J. 1990).

26 See (D.E. 179, Certification of Lombardi, Ex. B at 17).

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Mr. Dweck stated, “The truthful response is, I committed no 

crime but pled guilty to a crime.”27 

Courts have allowed defendants to maintain their innocence 

in subsequent civil proceedings.28 The fact that Mr. Dweck

maintains his lack of culpability in this civil matter does not 

necessarily contradict his testimony during his plea hearing in 

the criminal matter. The New Jersey Rule providing for civil 

reservations implicitly recognizes this scenario. Because Mr. 

Dweck chose to plead guilty, the answers he provided during the 

allocution simply comported with the requirements of the court. 

D. The Judgment of Conviction Should Only Be Admissible 

to Impeach Defendant’s Credibility as to His 

Counterclaims

For the above reasons, Mr. Dweck has not waived his civil 

reservation. As the court stated in Stone, “[t]he immunity is 

not available to prevent impeachment which may uncover the 

perjurious basis of a criminal defendant’s civil claim.”29 In 

this action, Mr. Dweck asserts counterclaims against A.A. 

 

27 (D.E. 178, Pl.’s Opp. Brief at 11).

28 Hanley v. Com., Dept. of Transp., Bureau of Motor Vehicles, 

749 A.2d 1045 (Comm. Ct. PA. 2000) (affirming that mechanic’s 

guilty plea in criminal case did not estop him from claiming, in 

civil case, that he was innocent of the same offense).

29 Stone, 191 N.J. Super. at 558.

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Action. Mr. Dweck acknowledges that “the only time the A.A. 

Action may use defendant’s criminal conviction to impeach the 

defendant... [is] in defense of Mr. Dweck’s counterclaims.”30

Similar to Stone, if Mr. Dweck made statements contradictory to 

his guilty plea in order to support his counterclaims against 

the Plaintiff, he would waive his civil reservation. Therefore, 

the Judgment of Conviction will only be admissible to impeach 

his credibility as to his counterclaims against Plaintiff.

IV. CONCLUSION

This Court concludes that the civil reservation that Mr. 

Dweck entered into as part of his guilty plea is not waived, and

evidence of Mr. Dweck’s guilty plea, conviction, and sentence 

may not be used by A.A. Action to prove its claims. The 

Judgment of Conviction may only be admitted to impeach Mr. Dweck 

as to his counterclaims against Plaintiff.

For the foregoing reasons,

IT IS on this Thursday, July 28, 2016,

ORDERED that Defendant’s motion in limine to bar Plaintiff, A.A. 

Action, from using as evidence Mr. Dweck’s guilty plea, 

conviction, and sentence in a related criminal matter is 

 

30 (D.E. 182, Def.’s Reply Brief at 5).

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GRANTED.

 

7/31/2016 10:36:46 PM

cc: All parties

 File

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