K.J. et al v. GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION et al
OPINION FILED. Signed by Judge Robert B. Kugler on 12/6/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
K.J., individually and on behalf of K.J., Jr, et
GREATER EGG HARBOR REGIONAL
HIGH SCHOOL DISTRICT BOARD
OF EDUCATION, et al.,
Civil No. 14-0145 (RBK/JS)
KUGLER, United States District Judge:
This matter comes before the Court on the Motion for Summary Judgment of Defendant
Atlantic County Prosecutor’s Office (“ACPO”). (Doc. No. 110.) This Court previously dismissed
Atlantic County prosecutors Anne Crater, Esq. and Lauren Kirk, Esq. from this matter because the
claims against them were barred by sovereign and prosecutorial immunities. (See Doc. No. 104.)
The question before the Court today is: on summary judgment, must the Court dismiss a state-law
claim of negligent hiring against the ACPO if the prosecutors themselves are immune to suit?
The ACPO’s moving brief today distills to an argument that the immunity of the
prosecutors either extends to the ACPO or else prevents the attachment of respondeat superior.
Neither apply here. Negligent hiring is a tort separate and distinct from malicious prosecution and
therefore does not implicate the same issues of immunity. Respondeat superior does not implicate
negligent hiring. And in any event the ACPO’s motion is plainly deficient and fails to comply with
the minor procedural burdens imposed by Rule 56. We therefore dismiss the ACPO’s motion for
This Court has previously endeavored to chart the twists and turns of this case and will
only briefly revisit them here. See Dec. 30, 2017 Opinion at 2-10 (Doc. No. 88); Aug. 26, 2015
Opinion at 2-10 (Doc. No. 57); April 21, 2015 Opinion at 2-10 (Doc. No. 51). We focus today on
the role of the ACPO in this litigation. In late 2012, shortly after the events of the Sandy Hook
Elementary School shootings, Plaintiff was called out of his high school class after a teacher saw
a drawing that bore some resemblance to a weapon. This led to a search of Plaintiff’s home by the
police, a flame-throwing device was uncovered, and some time later the Prosecutor’s Office was
contacted. They charged Plaintiff with a crime, and a New Jersey judge ordered Plaintiff’s
detention for two weeks. He was subsequently placed under house arrest. At a criminal trial at a
later date, all charges were dismissed. This suit, encompassing a wide spectrum of activities and
defendants, was thereafter filed. The aspect of this dispute before the Court today addresses the
hiring of the prosecutors Anne Crater, Esq. and Lauren Kirk, Esq., who, it is alleged, detained
Plaintiff with an improper purpose and maliciously prosecuted him. Whether they did so is beside
the point, for the prosecutors themselves are dismissed on the basis of immunity. But the question
of the liability of the Prosecutor’s Office still lingers.
We have previously held that “negligent hiring claims against the Prosecutor’s Office . . .
are not barred by sovereign immunity.” See April 21, 2015 Opinion, Doc. No. 51 at 24 (citing
Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996)). In that decision, we dismissed “all of
Plaintiff’s federal and state law claims . . . with the exception of the negligent hiring claims in
Counts XIII and XXV.” Id. at 25. In the Fifth Amended Complaint, these claims have since become
Counts 9 and 20. Count 9 is identical to the former Count XIII; Count 20 has taken a slightly
different tack. (FAC at 50-55; 96-104.) In this Court’s decision of December 30, 2016, we noted
that the ACPO had moved to dismiss Counts XIII and XXV, presumably referring to Count 20 of
the FAC, and denied the ACPO’s motion to dismiss for failing to comply with Fed. R. Civ. P.
Most recently, on December 1, 2017, this Court issued an order seeking clarification of the
motion for summary judgment and additional supplemental briefing on the matter. The ACPO
responded by notifying the Court that it was indeed only moving for summary judgment on the
state law claim, and that it intended to move for summary judgment on the § 1983 claim at a later
date. (Doc. No. 144.)
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a court weighs
the evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing] evidence showing the absence of
a genuine issue of material fact” or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive
summary judgment, the nonmoving party must “make a showing sufficient to establish the
existence of [every] element essential to that party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing summary
judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 F.
App'x. 353, 354 (3d Cir. Sept. 17, 2007) (quoting Port Auth. of N.Y. and N.J. v. Affiliated FM Ins.
Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party's motion for summary judgment, the Court's role is not to
evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The ACPO, in its moving brief (which is exceptionally brief), states that dismissal “will be
granted in part on the basis of sovereign immunity,” but does not develop this further. What the
brief focuses on instead is “a claim for negligent hiring.” There has been some confusion about
the singularity of “claim” in the ACPO’s briefing, and we directed the parties to produce
supplemental briefing on this. Even now, after subsequent communications attempting to clarify
matters for the Court (see Doc. No. 144), the ACPO continues to say that “negligent hiring” is the
“only claim.” It is not. Review of this Court’s April 21, 2015 confirms the contrary. See April 21,
2015 Opinion at 25 (“all of Plaintiffs federal and state law claims are dismissed as to the
Prosecutor’s Office, with the exception of the negligent hiring claims in Counts XIII and XXV.”).
Those are two separate claims. While the ACPO clearly recognizes this in its subsequent
communications with the Court, its one-and-a-half-pages of analysis does not articulate the
Although the name of the issue—negligent hiring—is the same for both claims, the law
differs significantly. Negligent hiring under New Jersey law “addresses the risk created by
exposing members of the public to a potentially dangerous individual,” i.e., it focuses on the hiring
decision and its downstream consequences. Di Cosala v. Kay, 91 N.J. 159, 172, 450 A.2d 508, 515
(1982). Negligent hiring under § 1983 tracks this closely: it addresses both the hiring decision and
its downstream consequences. But a § 1983 plaintiff must also prove she “suffered a deprivation
of federal rights,” in addition to proving fault and causation. Bd. of Cty. Comm'rs of Bryan Cty.,
Okl. v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 1389, 137 L. Ed. 2d 626 (1997).
We will construe the motion to address only the state-law claim of negligent hiring and
forego the supplemental briefing. The ACPO first argues that “factually and logically” the ACPO
is not involved in this case because this Court previously dismissed the prosecutors on grounds of
immunity. This misses the mark. As a matter of law, negligent hiring does not address the conduct
of the employees directly. It addresses the hiring decision, and the foreseeable consequences of
that decision. The ACPO correctly notes that there must be some notice to an employer at the time
of the hiring decision and the likelihood of that employee causing harm. Lingar v. Live-In
Companions, Inc., 300 N.J. Super. 22, 32 (App. Div. 1997) (“The totality of the circumstances
surrounding the hiring must be considered in determining whether the employer exercised due
care.”). But the ACPO fails to recognize the import of that notice, which is that notice is a factor
in evaluating whether an employer’s decision is tortious. In a negligent hiring action, it is the hiring
decision that is the alleged tort, not the act of the employee. Conversely, if an employee is immune
to a given tort action, that immunity does not necessarily impute to the decision to hire that
We also note that the liabilities of an employee do not always inform the liabilities of the
employer. Under New Jersey law, the tort of negligent hiring is not necessarily impacted by
respondeat superior. Cf. Di Cosala v. Kay, 91 N.J. 159, 172–73 (1982) (“the scope of employment
limitation on liability which is a part of the respondeat superior doctrine is not implicit in the wrong
of negligent hiring.”). Prosecutorial immunity may prevent liability under respondeat superior, but
negligent hiring does not depend on it. Thus, neither the immunity of the prosecutors nor the
impossibility of liability under respondeat superior necessarily bar a negligent hiring claim.
That being the case, this Court cannot adjudicate the matter without reference to the facts.
Yet the ACPO has failed to carry the fairly minor procedural burdens imposed on a movant for
summary judgment. “Parties must identify disputed issues in their briefs . . . District judges are not
archeologists.” Hoffman La Roche v. Apotex, 2013 U.S. Dist. LEXIS 10913 (D.N.J. Jan. 28, 2013),
aff’d 748 F.3d 1326 (Fed. Cir.), cert. den. 190 L. Ed. 2d 704 (2014) (internal citations and
quotations omitted). Rule 56(c)(1) requires that “[a] party asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . . citing particular parts of materials in the
record.” Regrettably, that did not happen here, and had it happened, it might have added some
much needed clarity to the motion. Local Civil Rule 56.1 requires the movant to furnish statement
of material facts not in dispute. That did not happen here either. Lastly, Local Civil Rule 56.1
instructs that “[a] motion for summary judgment unaccompanied by a statement of material facts
not in dispute shall be dismissed.” The Court may excuse noncompliance in appropriate cases, see
Boswell v. Eoon, 452 Fed. App’x 107, 111-12 (3d Cir. 2011), but there is no reason to do so here.
The motion for summary judgment is thus DENIED. An order follows.
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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