[Docket Nos. 429, 435, 456, 462, 464, 465, 466, 467, 476] 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

FINANCIAL CASUALTY & SURETY, 

INC., 

Plaintiff,

 v.

JOHN BONINO and 007 BAIL BONDS, 

INC., 

Defendants.

Civil No. 11-4316 (RMB/JS)

MEMORANDUM OPINION 

BUMB, United States District Judge:

This matter comes before the Court upon several post-trial 

motions filed by Plaintiff, Financial Casualty & Surety, Inc.,

(“FCS”) [Docket Nos. 456 & 462],1 Defendants John Bonino and 007 

Bail Bonds, (the “007 Defendants”), [Docket Nos. 429, 435, 464, 

465 & 467],2 and Defendants Bail Group Management, LLC, James 

Mascola and Genevieve Steward, (the “BGM Defendants”). Prior to 

1 To the extent Plaintiff has also submitted a “Notice of 

Stipulated Dismissal,” [Docket No. 472], this Court need not 

sign the dismissal as it was effective when signed by both 

parties. See Fed. R. Civ. P. 41(a)(1)(A)(ii). In addition, the 

Court previously signed an Order of Dismissal as to the BGM 

Defendants, and the Court need not sign off on the settlement 

between the parties, submitted as Docket No. 473 “Agreed Final 

Judgment.” 

2 Docket Nos. 429 and 467 are duplicative as are Docket Nos. 435 

and 464. As such, these motions will be addressed together. 

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the start of trial, FCS settled with the BGM Defendants. After 

the completion of trial, the jury found that both John Bonino 

and 007 Bail Bonds had breached an implied agreement with 

Plaintiff; Plaintiff was awarded the premium on reported bonds 

of $3,307.00, bond forfeiture judgments and consent judgments in 

the amount of $65,280.00, and attorney’s fees and expenses in 

the total amount of $127,000 against Bonino only. [Docket No. 

450].

The Court will address the parties’ respective post-trial 

motions in turn. 

1. 007 Defendants’ Motion to Reinstate Cross-Claim

The 007 Defendants ask this Court to reinstate their crossclaim against the BGM Defendants as asserted in their answer 

filed on October 31, 2011. [Docket Nos. 429 & 467]. The 007

Defendants contend that the BGM Defendants were aware of the 

cross-claim, but “chose not to conduct any discovery in order to 

defend the claim.” [Docket No. 429 at 3]. The 007 Defendants 

further contend that they “intended to preserve the cross-claim 

by including a mention of same in their portion of the Pretrial 

Order.” Id. at 4. It is undisputed, however, that this crossclaim was never included in the final and operative version of 

the Joint Final Pretrial Order by the 007 Defendants. [See

Docket No. 367].

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Even assuming that this Court accepts the 007 Defendants’ 

argument that the Plaintiff’s superseding complaint does not 

impact the cross-claim asserted in their answer, they have 

provided no citations to the record to support their argument 

that the BGM Defendants “specifically consented on the record in 

open court to allowing the [cross-claim] to go forth.” [Docket 

No. 434 at 7]. In addition, this Court cannot accept the 007

Defendants’ argument that they “attempted to preserve [the 

cross-claim] for trial” by requesting inclusion in the pre-trial 

order. 

The 007 Defendants’ dilatory conduct with respect to the 

Joint Final Pretrial Order is well documented. [See Docket No. 

475]. For example, the 007 Defendants, on several occasions, 

failed to comply with the Court’s orders regarding pre-trial 

submissions. [See Docket No. 343, directing the 007 Defendants 

to show cause why sanctions should not be imposed for failure to 

comply with the Court’s Order regarding the Joint Final Pretrial 

Order]. After lengthy proceedings, including a hearing on FCS’s 

motion to strike the 007 Defendants’ portion of the Final 

Pretrial Order for lack of participation in the drafting 

process, the Joint Final Pretrial Order was entered on February 

10, 2014 and included no mention of the cross-claim despite 

ample opportunity for the 007 Defendants to include the same. 

[See Docket No. 367]. 

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The law is clear that “a final pretrial order ‘shall 

control the subsequent course of the action unless modified by 

subsequent order. The order following a final pretrial 

conference shall be modified only to prevent manifest 

injustice.’” Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 

1194 (3d Cir. 1987)(quoting Fed. R. Civ. P. 16(e)). The conduct 

of the 007 Defendants with respect to the formation of the Final 

Pretrial Order clearly does not warrant an amendment to prevent 

manifest injustice. Moreover, while the trial is now complete 

and any proceedings as to the cross-claim would necessarily be 

bifurcated, the Court finds that the subject of the cross-claim 

involves issues that would require discovery. The bond at issue 

involves an agreement with the Roche Insurance Company and a 

third party escrow agent, parties previously unknown to this

Court, and arises pursuant to an agreement entirely unrelated to 

FCS. As such, this Court cannot find that manifest injustice 

requires that the cross-claim be permitted, and the Court will 

deny the 007 Defendants’ motions. 

2. 007 Defendants’ Motion for Setoff

The 007 Defendants have moved for a setoff against the 

$168,587 verdict, [Docket Nos. 435 & 464], arguing that they are 

entitled to a setoff because Plaintiff has entered into 

settlement agreements with other Defendants, who “shared 

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liability for any damages owed . . . .” [Docket No. 464 at 2]. 

As Plaintiff correctly points out, however, the 007 Defendants 

have provided this Court with no relevant factual or legal bases 

for this assertion – i.e., there is no evidence that there is an 

overlap between the damages awarded to FCS and the settlement 

with BGM, or any other Defendant. Without any evidence that the 

judgment against the 007 Defendants actually would result in a 

double recovery for the same liability, this Court must deny the 

motion for setoff.3 Cf. Juzwin v. Amtorg Trading Corp., 705 

F.Supp. 1053, 1063 (D.N.J. 1989), rev'd on other grounds, 900 

F.2d 686 (3d Cir. 1990) (“A defendant in a civil action has a 

right to be protected against double recoveries . . . because 

overlapping damage awards violate that sense of ‘fundamental 

fairness’ which lies at the heart of constitutional due 

process.”).

3. 007 Defendants’ Motion Notwithstanding the Verdict4

The 007 Defendants have renewed their motion, previously 

denied by this Court [Docket No. 439], to dismiss the 

Plaintiff’s complaint based upon the statute of frauds. [Docket 

3 This denial is without prejudice. The 007 Defendants shall 

have 60 days from the date of this Opinion to submit proper 

support for this motion, if any. 

4 Presumably, the 007 Defendants are moving pursuant to Federal 

Rule of Civil Procedure 50 for judgment as a matter of law. 

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No. 466]. The 007 Defendants contend that the agreement at 

issue is a surety agreement and, thus, must be in writing. The 

007 Defendants, however, have set forth no arguments or law that 

persuade this Court that it should deviate from the reasoning 

set forth in its prior Opinion on this very issue. [See Docket 

No. 439]. Again, this Court has found that the agreement at 

issue is one for indemnification and, therefore, can be implied.

[Docket No. 439 at 5]. In addition, to the extent this Court

found, in the alternative, that the 007 Defendants have waived 

the statute of frauds defense, they present no arguments to 

refute that finding in their renewed motion. The motion is 

denied for the reasons previously set forth in this Court’s 

prior Opinion. 

4. 007 Defendants’ Motion for a New Trial

The 007 Defendants have moved for a new trial pursuant to 

Federal Rule of Civil Procedure 59 [Docket No. 465]. Rule 59 

states that a court may “grant a new trial on all or some of the 

issues . . . for any reason for which a new trial has 

heretofore been granted in an action at law in federal court . . 

. .” Fed. R. Civ. P. 59(a). Although the language of Rule 59 

does not cite specific grounds for a new trial, there are many 

reasons why a new trial may be warranted. The most commonly 

raised reasons are: there was prejudicial error of law, that the 

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verdict is against the weight of the evidence, the verdict is 

too large or too small, there is newly discovered evidence, 

conduct of counsel or of the court has tainted the verdict, or 

there has been misconduct affecting the jury. 11 C. Wright, A. 

Miller & R. Kane, Federal Practice and Procedure § 2805, at 55 

(2005); see also Lightning Lube, Inc. v. Witco Corp., 802 F. 

Supp. 1180, 1186 (D.N.J. 1992).

According to the 007 Defendants’ brief, a new trial is 

warranted because “[a]t the conclusion of the trial, the jury 

entered a verdict solely against Defendant, John Bonino. 

However, the record is devoid of any evidence that John Bonino 

acted in an individual capacity with the Plaintiff.” [Docket 

No. 465 at 1]. As an initial matter, the Court notes that the 

jury did find that 007 Bail Bonds breached an implied agreement 

with Plaintiff, but did not award any damages with respect to 

007. In addition, the 007 Defendants refer to trial testimony 

in broad strokes, neither citing nor providing the Court with 

any of the relevant testimony that would be needed to make an 

informed decision on their motion. Certainly, this Court cannot 

recreate trial testimony from memory. If the 007 Defendants 

wish to pursue arguments regarding the “great weight of the 

evidence,” they must provide the Court with that evidence. 

Because no record evidence has been provided, the 007

Defendants’ motion for a new trial will be denied without 

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prejudice. Evidence in support of a renewed motion must be 

filed within 60 days. 

 

5. BGM Defendants’ Motion to Dismiss Remaining CrossClaims & Plaintiff’s Motion to Dismiss Counterclaim

The BGM Defendants ask this Court to dismiss any remaining 

cross-claims asserted against them by co-defendants Jeanne 

Rondeau (“Rondeau”) and Anthony Pizzichillo (“Pizzichillo”).

[Docket No. 476]. Relatedly, the Plaintiff asks this Court to 

dismiss Pizzichillo’s counterclaim for failure to prosecute as

authorized by Federal Rule of Civil Procedure 14(b). [Docket No. 

456]. 

In both Rondeau’s and Pizzichillo’s respective answers to 

Plaintiff’s complaint they included a cross-claim against the 

BGM Defendants. [Docket No. 77 & 78]. Pizzichillo’s answer also 

contained a counterclaim against the Plaintiff. [Docket No. 

78]. On July 19, 2013, this Court entered summary judgment in 

favor of Rondeau and she was dismissed from this lawsuit. 

[Docket No. 320]. Summary judgment was entered against 

Pizzichillo in October 2012 and a final judgment was entered on 

May 12, 2014. [Docket No. 442]. As of this juncture, neither 

Rondeau nor Pizzichillo has prosecuted their claims. In 

addition, neither Defendant participated in the drafting of the 

Joint Final Pretrial Order and those claims were absent from 

that Order. 

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Under Rule 41(b), a court may dismiss a counterclaim or a 

cross-claim for failure to prosecute.5 When considering such a 

dismissal, the Court must consider the six factors enumerated in 

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 

1984). Those factors are:

(1) the extent of the party's personal responsibility; 

(2) the prejudice to the adversary caused by the failure to meet 

scheduling orders and respond to discovery; 

(3) a history of dilatoriness;

(4) whether the conduct of the party or the attorney was willful 

or in bad faith; 

(5) the effectiveness of sanctions other than dismissal, which 

entails an analysis of alternative sanctions; and

(6) the meritoriousness of the claim or defense.

Here, both Rondeau and Pizzichillo bear personal 

responsibility for the failure to prosecute as neither party has 

taken steps to move forward with the claims at issue. 

Additionally, as neither Rondeau nor Pizzichillo participated in 

formulating the Joint Final Pretrial Order, this Court finds 

that both BGM and Plaintiff would be prejudiced if these claims 

are not dismissed as trial has been completed in this matter. 

In addition, the history of dilatoriness is clearly satisfied 

5 Fed. R. Civ. P. 41(b) states: If the plaintiff fails to 

prosecute or to comply with these rules or a court order, a 

defendant may move to dismiss the action or any claim against 

it. Unless the dismissal order states otherwise, a dismissal 

under this subdivision (b) and any dismissal not under this 

rule--except one for lack of jurisdiction, improper venue, or 

failure to join a party under Rule 19--operates as an 

adjudication on the merits.

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given Rondeau and Pizzichillo’s failure to participate in the 

litigation. While there is no evidence of bad faith here, the 

Court finds that, at this juncture, there is no sanction other 

than dismissal that would be appropriate under the 

circumstances. Finally, with respect to the merits of the 

claims, both Plaintiff and the BGM Defendants have argued in 

their papers that the claims lack merit, but, with no opposition 

papers, this Court is not in a position to make an accurate 

assessment. See Ramada Worldwide, Inc. v. Veer Enters., LLC, 

2013 U.S. Dist. LEXIS 46099, 2013 WL 1314451, at *5 (D.N.J. Mar. 

28, 2013)(“The Court declines to address the sixth Poulis

factor, as it is impossible to evaluate the merits of 

[defendant's] defenses given his lack of participation in this 

action.”). 

Even without the final factor, this Court finds that at 

least four of the six factors favor dismissal and this Court 

will dismiss the cross-claims asserted against BGM by both 

Rondeau and Pizzichillo and the counterclaim asserted against 

Plaintiff by Pizzichillo. See Briscoe v. Klaus, 538 F.3d 252,

263 (3d Cir. 2008)(“While ‘no single Poulis factor is 

dispositive,’ . . . we have also made it clear that ‘not all of 

the Poulis factors need be satisfied in order to dismiss a 

complaint.’”)(internal citations and quotations omitted). Both 

motions are, thus, granted. 

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6. Plaintiff’s Motion for Judgment as a Matter of Law

Plaintiff has filed a motion for entry of judgment against 

Defendant, John Bonino, and a motion for judgment 

notwithstanding the verdict and for judgment as a matter of law 

against 007 Bail Bonds. [Docket No. 462]. To the extent the 

Plaintiff asks this Court to enter the judgment against Bonino, 

that request is moot as the judgment was previously entered. 

[See Docket No. 452].

Plaintiff also asks that this Court to enter judgment as a 

matter of law pursuant to Federal Rule of Civil Procedure 50

against 007 Bail Bonds. Plaintiff avers that the jury’s 

determination that 007 Bail Bonds breached its implied agreement 

with Plaintiff but its failure to award damages as a result is 

inconsistent. Plaintiff argues that “the evidence at trial 

conclusively established that the damages sustained by FCS as a 

result of the breach of contract by Bonino were identical to 

those FCS sustained as a result of the breach by 007 Bail 

Bonds.” [Docket No. 462 at 2]. 

At this juncture, Plaintiff’s motion suffers from a lack of 

specific record cites or case law supporting its conclusions. 

In addition, this motion raises a question that has not been

properly briefed by either Plaintiff or the 007 Defendants: 

i.e., can an award for attorney’s fees premised upon an implied 

contract remain in this case as a matter of law and, if so, does 

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the evidence support such an award? 

In light of the above, this Court will deny Plaintiff’s 

motion without prejudice. The Plaintiff shall have 60 days from 

the date of this Opinion to submit a supplemental brief citing 

the appropriate portions of the trial record and providing case 

law in support of their point. In addition, both Plaintiff and 

the 007 Defendants shall have 60 days from the date of this 

Opinion to provide this Court with supplemental briefing 

regarding whether an award for attorney’s fees can stand as a 

matter of law where the liability for breach is based only on an 

implied contract. 

 s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: November 18, 2014

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