EVANS v. GLOUCESTER TOWNSHIP et al
Filing
40
OPINION. Signed by Chief Judge Jerome B. Simandle on 6/29/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CRYSTAL A. EVANS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-7160 (JBS/JS)
v.
GLOUCESTER TOWNSHIP, et al.,
OPINION
Defendant.
APPEARANCES:
Vera McCoy, Esq.
1134 S. Black Horse Pike, #103
Blackwood, NJ 08012
Attorney for Plaintiff Crystal A. Evans
Douglas Diaz, Esq.
ARCHER & GREINER, PC
One Centennial Square
Haddonfield, NJ 08033
Attorney for Defendants Gloucester Township, Gloucester
Township Police Department, and David R. Mayer
SIMANDLE, Chief Judge:
INTRODUCTION
In this action, Plaintiff Crystal A. Evans, a former
Gloucester Township Councilmember, alleges that Gloucester
Township (“the Township”), Gloucester Township Police Department
(“the Police Department”), former Mayor David R. Mayer, and
other municipal employees conspired to violate her rights under
the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of
the United States Constitution by fostering a culture of
political retribution. Plaintiff also asserts several state law
claims and violations of 18 U.S.C. §§ 241 and 1961 arising from
the same alleged misconduct. Specifically, Plaintiff contends
that Mayer and others in his administration subjected Plaintiff
to hostility and harassment during council meetings, implicated
Plaintiff in an alleged voting fraud scheme, orchestrated
Plaintiff’s arrest for stalking without probable cause, and
participated in a sexually-explicit internet defamation campaign
against Plaintiff. Plaintiff attempts to present this series of
incidents as part of an expansive conspiracy directed by
Defendant Mayer to squelch political opposition and as the
product of a municipal policy or custom of political
retaliation.
This matter comes before the Court upon a motion to dismiss
and a motion for Rule 11 sanctions by Defendants Gloucester
Township, Gloucester Township Police Department, and David R.
Mayer. [Docket Items 26 & 32.] For the reasons discussed below,
the Court will grant both Defendants’ motion to dismiss and
Defendants’ motion for Rule 11 sanctions.
FACTUAL BACKGROUND AND PROCEUDRAL HISTORY
The Court accepts as true for the purposes of the instant
motion the following facts from Plaintiff’s Second Amended
Complaint. [Docket Item 24.]
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Plaintiff Crystal Evans is a former Gloucester Township
Councilmember and member of the Gloucester Township Democratic
Party. (Second Am. Compl. ¶ 38.) Plaintiff served as a
constituent caseworker for the New Jersey Fourth Legislative
District under former state assemblyman and current Mayor of
Gloucester Township, Defendant David R. Mayer from January, 2004
to January, 2008. (Id. ¶ 31.) During this time, Plaintiff
developed a close relationship with Mayer and he nominated her
as the Democratic candidate for Gloucester Township Council in
2007. (Id. ¶ 32.) Plaintiff was elected and served on the
Council from January, 2008 to January, 2012. (Id. ¶ 38.)
A.
Alleged political retaliation while councilmember
Plaintiff alleges that shortly after entering office she
fell out of favor with Democratic council members and party
leaders because she refused to participate in unethical behavior
and consistently opposed proposals she believed benefitted a
small group of political insiders. (Id. ¶¶ 43, 55.) Before
Plaintiff’s first council meeting she was instructed by Township
Clerk Rosemarie DiJosie to vote in favor of a voluminous budget
which Plaintiff did not have an opportunity to review. (Id. ¶
44.) When Plaintiff objected, DiJosie explained that party
leadership expected her “to do as she was told” and Gloucester
Township Tax Assessor Chuck Palumbo allegedly “brow-beat” her in
a private meeting to ensure a favorable vote on the budget. (Id.
3
¶¶ 45-49.) During the vote, Plaintiff stated on the record that
she did not have time to review the budget and only voted in
favor of it because she was told that failure to do so would
result in the shutdown of essential city services. (Id. ¶ 49.) A
few days later, Mayer, the acting president of the Gloucester
Township Democratic Party at the time, “chastised” Plaintiff for
“embarrassing the Democratic Party” and “belittled” her by
suggesting that he made a mistake in supporting her run for
council. (Id. ¶ 50.) Thereafter, Mayer and S. Daniel Hutchinson
engaged in a series of character attacks which inhibited
Plaintiff’s ability to carry out her official duties and
culminated in her dismissal from the constituent caseworker
position in June, 2008. (Id. ¶¶ 52-53.) Plaintiff alleges that
Mayer “maintained and enforced a coercive custom of targeting
political dissidents with municipal and private harassment” by
subjecting individuals to fines, audits, and civil and criminal
investigations. (Id. ¶ 30.) Plaintiff routinely witnessed
Township officials “stonewall investigations into public
expenditures and engage in behaviors to frustrate, harass, and
discourage vocal opposition.” (Id. ¶ 59.) As mayor, Mayer
encouraged other council members to “publicly deride Plaintiff
in an effort to psychologically intimidate” and force her from
office. (Id. ¶ 65.) Plaintiff alleges that she was removed from
investigations and passed over for service on committees. (Id. ¶
4
67.) Plaintiff completed her council term in January, 2012 and
did not seek reelection due to the allegedly ongoing hostility
and harassment. (Id. ¶ 70.)
B.
Pay-to-play referendum
Plaintiff alleges that after leaving office she continued
to experience harassment directed by Gloucester Township
officials. (Id. ¶ 71.) As a councilmember, Plaintiff supported
“South Jersey Citizens,” a Gloucester Township watchdog group,
in its effort to gather signatures for a referendum petition
which sought to establish an ordinance limiting campaign
contributions from municipal contractors. (Id. ¶ 72.) Plaintiff
alleges that from March, 2012 to July, 2012, Mayer conspired
with Gloucester Township Solicitor Howard C. Long and a legal
assistant to the Gloucester Township Law Manager to fabricate a
voting fraud charge against Plaintiff. (Id. ¶ 73.) South Jersey
Citizens submitted the petition signatures to Rosemarie DiJosie
on February 19, 2012. (Id. ¶ 74.) Plaintiff contends that
Defendant Marianne Coyle, a legal assistant in the Township Law
Department, threatened an elderly constituent who had signed the
petition, JoAnne Stallworth, with a lawsuit if she did not sign
an affidavit stating that Plaintiff tricked her into signing the
petition by saying it supported funding for a local recreation
center. (Id. ¶ 78.) Ms. Stallworth allegedly signed such an
affidavit at the law offices of Wade, Long, Wood & Kennedy, LLC
5
in the spring of 2012. (Id. ¶ 52.) Plaintiff maintains that all
three partners of this firm were members of Mayer’s
administration. (Id. ¶ 53.) The affidavit was leaked to a
reporter at the Courier Post who contacted Plaintiff to inquire
into voter fraud allegations leveled by the Mayer
administration. (Id. ¶ 80.) According to Plaintiff, Defendants
also attempted to use Ms. Stallworth’s affidavit as evidence of
voter fraud in a lawsuit brought by South Jersey Citizens
against Rosemarie DiJosie. (Id. ¶¶ 84-85.) In July 2012,
Plaintiff testified on behalf of South Jersey Citizens in the
lawsuit “and was cleared of any wrongdoing.” (Id. ¶ 87.)
Plaintiff alleges that she did not learn of Mrs. Stallworth’s
affidavit until she and Mrs. Stallworth spoke on the telephone
between December 2012 and March 2013. (Id. ¶ 90.)
C.
Alleged workplace harassment
From July 19, 2010 to November 12, 2012, Plaintiff was
employed as the manager of the Turnersville branch of the New
Jersey Motor Vehicles Commission. (Id. ¶ 91.) Between September,
2011 and November, 2012, Plaintiff began receiving automated
phone calls from the Gloucester Township Police Department and
Mayer’s office announcing weather alerts and emergency storm
procedures. (Id. ¶ 93.) Plaintiff found these phone calls
unusual because her Motor Vehicles Commission branch was outside
the normal target area for such notifications, she received them
6
on her private extension which was only known by state
employees, and other Commission employees were not receiving the
notifications. (Id. ¶¶ 94-96.) During this same period,
Plaintiff suspected that the director of the Motor Vehicles
Commission, Robert Grill, was asked to monitor her activities
because Grill required Plaintiff to share her computer username
and password with a new hire, Kathleen Sharpe. (Id. ¶ 97.)
Plaintiff discovered Ms. Sharpe using the computer in
Plaintiff’s office on several occasions. (Id. ¶ 98.) Plaintiff
asserts that the harassment became so severe that she wrote a
letter to the Department of Justice in September, 2012 alleging
that she was being targeted for political retaliation. (Id. ¶
99.)
D.
Alleged false arrest and malicious prosecution
Plaintiff further alleges that on the evening of November
7, 2012, Angela DeLucca contacted the Gloucester Township Police
Department to report that someone had damaged the downspouts on
her home. (Id. ¶ 100.) Ms. DeLucca and Plaintiff’s brother-inlaw, Daniel Evans, were involved in a domestic dispute and Mr.
Evans asked Plaintiff to pick him up from Ms. DeLucca’s home.
(Id. ¶ 101.) Plaintiff contends that the reporting officers,
Defendants Benjamin Lewitt and Gregory A. Jackson, took
advantage of Ms. DeLucca’s agitated state to elicit “inflamatory
[sic] responses . . . about her relationship with Plaintiff.”
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(Id. ¶ 102.) These responses included allegations that Plaintiff
harassed Ms. DeLucca by calling her approximately 500 times,
visiting her home uninvited on at least twelve occasions,
damaging her home, and once threatening Ms. DeLucca’s life. (Id.
¶ 105.) Plaintiff alleges that “Defendant P/O Benjamin,
knowingly and intentionally listed the alleged victim’s ‘taped
statement’ and the ‘availability of phone records’ as grounds
for establishing probable cause in the issuance of a felony
stalking complaint/summons against Plaintiff” but that neither
had been obtained by Officer Benjamin. (Id. ¶¶ 109-10.)
Plaintiff alleges that Ms. DeLucca never asked the police to
pursue charges and never gave a written statement. (Id. ¶ 112.)
No attempt was made to contact Plaintiff prior to issuing the
summons. (Id. ¶ 111.)
On the morning of November 8, 2012, Plaintiff’s counsel,
Gary Lammono, Esq., contacted the Township Police Department and
arranged for Plaintiff to voluntarily appear at the station that
afternoon for processing. (Id. ¶ 114.) Nevertheless,
arrangements were made with the Camden County Prosecutor’s
Office for the Gloucester Township police officers to arrest
Plaintiff out of district at her place of work, the Turnersville
Motor Vehicles Commission. (Id. ¶ 115.) In the late afternoon of
November 8, 2012, a Camden County prosecutor and three
Gloucester Township Police Department officers came to
8
Plaintiff’s office and began speaking with several of her coworkers about the criminal complaint that had been issued
against her, although Plaintiff was absent at the time. (Id. ¶
116.) Plaintiff voluntarily appeared at the Gloucester Township
Police Department in accordance with her prior agreement. (Id. ¶
119.)
Plaintiff alleges that, as of the evening of her arrest,
she had no knowledge that Officer Benjamin had “misrepresented
the existence of probable cause for her arrest.” (Id. ¶ 120.) It
was not until criminal discovery was exchanged in February 2013
that Plaintiff learned there was no probable cause for her
arrest, when she alleges that “no recorded statement [from Ms.
DeLucca] had been offered into evidence and that neither the
Gloucester Township Police Department, nor the Municipal
prosecutor could produce the alleged recorded statement.” (Id. ¶
123.) Ultimately, Plaintiff was not indicted by a grand jury and
the felony stalking charge was downgraded to a disorderly person
citation for harassment and dismissed. (Id. ¶¶ 143-45.)
Following dismissal of the charge, a member of the Camden County
Prosecutor’s office allegedly admitted that Plaintiff should
never have been subjected to criminal arrest and felony charges.
(Id. ¶ 146.)
E.
Alleged internet defamation
9
Beginning in March, 2012, Plaintiff alleges that Mayer
and/or the Gloucester Township Police Department directed
Defendants James Dougherty, Frank Mellace, Melissa Mellace, the
Gloucester Township Residence Media Resources (a/k/a gtrmc.com),
and others to publish false, offensive, and sexually explicit
materials about Plaintiff and her family in the comments section
of articles published on gloucestertownship.patch.com and in
blogposts on gtrmc.com. (Id. ¶ 147.) The Second Amended
Complaint contains numerous examples of such comments. In July
2012, someone leaked Mrs. Stallworth’s allegedly false affidavit
and the voter fraud allegations against Plaintiff to Sean
McCullen, the editor of a local community blog,
gloucestertownship.patch.com, to publish details of Plaintiff’s
allegations. (Id. ¶ 150.) Around November 13, 2012, Plaintiff
alleges that Defendant David Harkins contacted McCullen again to
publish details of Plaintiff’s arrest. (Id. ¶ 138.) On November
9, 2012, someone using the handle “gtisblue” began a blogpost on
gtrmc.com entitled, “Gloucester Township Councilperson
Arrested??” which reported that a councilperson had been
arrested for “erratic and reckless driving as well as a battery
of civil charges involving a domestic dispute.” (Id. ¶ 157.) On
November 10, 2012, someone using the handle “ymbdfa” posted the
following: “Well the story I heard was that she was driving in a
reckless fashion without headlights and as it turns out it was
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because she apparently was trying to find her husband.” (Id. ¶
158.) Plaintiff contends that these posts indicate detailed
knowledge of allegations which were not revealed until November
13, 2012 in a Supplementary Field Report filed by Gloucester
Township Police Officer Christer Lewis Gerace. (Id. ¶ 159.)
On or about November 13, 2012, Sean McCullen published
details of Plaintiff’s arrest as obtained from Defendant David
Harkins in an article entitled “Former Gloucester Township
Councilwoman arrested.” (Id. ¶ 160.) On November 14, 2012,
someone using the handle “Best4GT” whom Plaintiff believes to
have been Defendant Mayer, wrote that “Ms. Evans just went off
her rocker when she found her husband in this woman’s home.”
(Id. ¶ 161.) On the same day, someone using the handle “YMBDFA”
posted that Plaintiff had a previous criminal record for “using
a government computer for unofficial business.” (Id. ¶ 162.) On
November 15, 2012, gtrmc.com was closed for public comment and
thereafter only private paid members of gtrmc.com could post to
the site. (Id. ¶ 164.) Also on November 15, 2012, “Best4GT”
stated that Plaintiff had driven to Ms. DeLucca’s residence and
caught her spouse “banging the hell” out of one of her friends.
(Id. ¶ 165.)
Several months later, on February 21, 2013, a gtrmc.com
user with the handle “Sybil Evans” wrote that Plaintiff had a
previous history of criminal incidents involving stalking,
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threats of violence, and vandalism and “insinuated” that
Plaintiff was having an affair with her brother-in-law Daniel
Evans. (Id. ¶ 166.) On February 22, 2013, “YMBDFA” stated that
Plaintiff had a criminal history and implied that Plaintiff was
providing names and addresses of minors to a known male sex
offender and previously used her teenage modeling business, Role
Models, Inc., as a recruitment vehicle for underage female
victims. (Id. ¶ 167.) On March 4, 2013, “Best4GT” whom Plaintiff
believes to be Defendant Mayer, posted the following: “It is
known that Crystal Evans was previously arrested for stalking
and made death threats by phone to Mr. Mellace in the past.
Police reports were filed on the night of July 19, 2011, and the
police have been investigating the incident since.” (Id. ¶ 168.)
At the time of these posts, gtrmc.com was owned and operated by
Defendant Frank Mellace, a Gloucester Township Democratic
Committee member who worked in the Gloucester Township Tax
Assessor’s Office who was “a close political ally” of Defendant
Mayer. (Id. ¶¶ 171-72.)
Plaintiff further alleges that beginning on November 9,
2012, Mayer and/or the Gloucester Township Police Department
directed Mellace and others to use “Search Engine Optimization
techniques to backlink the original Patch media and gtrmc.com
articles” to make the allegedly degrading statements appear near
the top of the internet search results for Plaintiff’s name.
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(Id. ¶ 174.) Additionally, Plaintiff alleges that since at least
June, 2014, Defendant James Dougherty and others published false
profiles using Plaintiff’s name and likeness on internet
pornography sites, including xhorni.com. (Id. ¶ 178.) Beginning
in March, 2015, Mayer and/or the Gloucester Township Police
Department directed an unknown individual to create pages on
Frompo.com which include Plaintiff’s name, photograph, and
address. (Id. ¶ 179.) Plaintiff asserts that from November, 2012
to present the above conduct by Defendants has “placed a
significant financial burden upon Plaintiff by forcing her to
spend” money on reputation management fees and legal fees “in an
effort to rehabilitate her character.” (Id. ¶ 180.)
F. Ineffective assistance of counsel
Plaintiff alleges that her first legal representative,
William H. Buckman, Esq. “first discovered plaintiff’s false
arrest, abuse of process and malicious prosecution claims while
competently representing her in the criminal proceedings arising
from her November 8, 2012 arrest” but that subsequent to
receiving his retainer, he “inexplicably began to discourage
plaintiff from pursuing her § 1983 claims against Gloucester
Township municipal officials.” (Id. ¶¶ 181-84.) Plaintiff
ultimately filed a fee dispute against Mr. Buckman because he
refused to either pursue her civil rights claims or return the
retainer so that she could seek alternative representation. (Id.
13
¶ 186.) Mr. Buckman passed away before Plaintiff’s fee dispute
was finally adjudicated. (Id. ¶¶ 189-90.) Mr. Buckman “failed to
protect Plaintiff’s claim, allowing at least two statutory
deadlines to lapse” and failed to provide Gloucester Township
with notice of any potential tort claims. (Id. ¶¶ 191-93.)
Plaintiff then sought alternative legal representation with
F. Michael Daily, Esq., who filed a complaint on Plaintiff’s
behalf in Camden County Superior Court seeking to identify the
owner of gtrmc.com. (Id. ¶ 195.) Mr. Daily was then “allegedly
subjected to an audit by the Camden County Prosecutor’s Office,”
which made him hesitant to pursue Plaintiff’s claims. (Id. ¶¶
19-97.) What is meant by an “audit” is unknown. Mr. Daily “sent
Plaintiff an alarming text message in an effort to discourage
her from filing” her Complaint against the Township as a pro se
litigant. (Id. ¶ 198.)
G. Procedural History
Plaintiff filed this action on November 14, 2014. [Docket
Item 1.] Defendants Gloucester Township, Gloucester Township
Police Department, and Mayor Mayer filed a motion to dismiss,
which the Court dismissed as moot [Docket Item 12] after
Plaintiff filed an Amended Complaint on April 20, 2015. [Docket
Item 11.] Plaintiff’s 12-count Amended Complaint consisted of
claims for municipal liability; conspiracy to commit gender
discrimination in violation of 42 U.S.C. § 1985; violation of
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Plaintiff’s First Amendment right to engage in protected
political speech; malicious prosecution; abuse of process; false
arrest; violation of Plaintiff’s Fourteenth Amendment liberty
interest in reputation; false light; tortious interference with
a business relationship; intentional infliction of emotional
distress; and violation of Plaintiff’s Fourteenth Amendment
substantive and procedural due process rights. Plaintiff
asserted such claims against 17 named defendants: Gloucester
Township; Gloucester Township Police Department; David R. Mayer;
David Harkins; David Carlamere; Howard C. Long; Marianne Coyle;
Officer James Dougherty; Officer Benjamin Lewitt; Officer
Gregory A. Jackson; Robert Grill; Frank Mellace; Melissa
Mellace; Gloucester Township Residence Media Resources;
gtrmc.com accountholder “Best4GT;” gtrmc.com accountholder
“ymbdfa;” and gtrmc.com accountholder “Sybil Evans.” 1
Defendants Gloucester Township, Gloucester Township Police
Department, and Mayor Mayer filed a motion to dismiss
Plaintiff’s Amended Complaint. [Docket Item 13.] The Court
granted Defendants’ motion, dismissing all claims (“the August
21 Opinion,” Evans v. Gloucester Twp., 124 F. Supp. 3d 340
(D.N.J. 2015)). [Docket Items 22 & 23.] In particular, the Court
1
Plaintiff also asserts these claims against numerous fictitious
defendants: Jane Doe Camden County Prosecutor; John Doe
Gloucester Township Police Officers (1-3); John Does (1-10); and
XYZ Corporations (1-10).
15
dismissed Plaintiff’s state tort claims with prejudice for
failure to comply with the notice requirement under the New
Jersey Tort Claims Act. Plaintiff’s other claims were dismissed
without prejudice for untimeliness or for failure to state a
claim, and she was granted 21 days to amend her complaint to
cure the deficiencies pointed out in the Court’s Opinion.
Plaintiff timely filed her Second Amended Complaint on
September 9, 2015. [Docket Item 24.] Plaintiff’s fifteen-count
Second Amended Complaint consists of claims for municipal
liability; conspiracy to commit gender discrimination in
violation of 42 U.S.C. § 1985; violation of 18 U.S.C. § 241;
violation of RICO; violation of Plaintiff’s First Amendment
right to engage in protected political speech; malicious
prosecution; abuse of process; false arrest; violation of
Plaintiff’s Fourteenth Amendment liberty interest in reputation
and property interest in employment; false light; tortious
interference with a business relationship; intentional
infliction of emotional distress; and defamation.
Defendants Gloucester Township, Gloucester Township Police
Department, and Mayor Mayer again filed a motion to dismiss
Plaintiff’s Second Amended Complaint. [Docket Item 26.]
Defendants also seek Rule 11 sanctions against Plaintiff’s
attorney, Vera McCoy, for filing a frivolous Second Amended
Complaint. [Docket Item 32.]
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STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff failed to set forth fair notice of what the claim
is and the grounds upon which it rests. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
DISCUSSION
A.
Tort Claims (Counts XII, XII, XIV, and XV)
Defendants first seek to dismiss Plaintiff’s re-filed tort
claims – false light (Count XIII), tortious interference with a
business relationship (Count XIV), and intentional infliction of
emotional distress (Count XV) - on the grounds that these same
claims were dismissed with prejudice in the August 21 Opinion, 2
2
This Court dismissed with prejudice Plaintiff’s claims in her
first Amended Complaint for false light, tortious interference
17
and to dismiss Plaintiff’s new tort claim for defamation (Count
XII) for failure to comply with the NJTCA, N.J.S.A. 59:8-8.
Plaintiff concedes that she did not provide the Township with
notice of her claims prior to filing suit, but takes the
position that she has amended her tort claims to remove them
from the ambit of the NJTCA and its notice requirement.
Plaintiff alleges that her claims for defamation, false light,
tortious interference with a business relationship, and
intentional infliction of emotional distress pertain to conduct
undertaken while “Defendants were acting as private citizens,
motivated by private concerns, and were not engaged in the
execution of any public function which can be attributed to the
municipality.” (Second Am. Compl. ¶¶ 348 (defamation), 358
(false light), 368 (tortious interference with a business
relationship), and 384 (intentional infliction of emotional
distress).)
The NJTCA requires notice of a claim of injury against a
public entity to be presented within ninety days of the accrual
of the cause of action. A plaintiff is barred from recovering
damages from a public entity if “he fail[s] to file his claim
with the public entity within ninety (90) days . . . .” N.J.S.A.
with a business relationship, and intentional infliction of
emotional distress for failure to comply with the notice
requirement of the NJTCA. Evans v. Gloucester Twp., 124 F. Supp.
3d 340, 354 (D.N.J. 2015).
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59:8–8. 3 The New Jersey Supreme Court in Velez expressly held
that the notice provisions of the Act apply to intentional tort
claims against public employees – even where such conduct
“arguably could be classified as intentional or outrageous
conduct” and the employee would not enjoy immunity under
N.J.S.A. 59:3-14. Velez v. City of Jersey City, 850 A.2d 1238,
1244-45 (N.J. 2004). See also Lassoff v. New Jersey, 414 F.
Supp. 2d 483, 490 (D.N.J. 2006) (“Suits against a public officer
in his individual capacity are subject to the notice provisions
of the TCA even though the public officer is not entitled to
immunity under N.J.S.A. § 59:3–14.”); Mawhinney v. Bennett, Civ.
08-3317, 2010 WL 2557713, at *7 (D.N.J. June 22, 2010) (same).
Plaintiff attempts to distinguish her case from Velez; in
that case, a councilman allegedly kissed, fondled, and groped
the plaintiff when she went to his office to thank him for his
help with a work-related favor. 850 A.2d at 1240. Plaintiff
contends that the setting of the tortious conduct in Velez – the
defendant’s office – is what brought his “outrageous conduct”
within the scope of the NJTCA. She argues that “[i]mplicit in
the [Supreme] Court’s decision was that its holding was limited
to intentional torts committed by public employees whom [sic]
3
Failure to comply with the notice requirements under the NJTCA
precludes recovery against a public employee, as well as a
public entity. N.J.S.A. 59:8–3; Velez v. City of Jersey City,
850 A.2d 1238, 1243 (N.J. 2004).
19
were acting in their public role to carry out an otherwise
legitimate public function,” and that Defendants here were not
engaged in the performance of any public function when they
allegedly created and published the attack blogs against Ms.
Evans. (Pl. Br. at 7.)
The Court rejects Plaintiff’s unnecessarily cramped reading
of Velez’s holding as limited to cases where a public employee
allegedly engaged in intentionally tortious conduct during the
course of executing a public function. Any intentionally
tortious conduct is presumably outside the scope of a public
official’s official duties, regardless of where such conduct
occurs. In interpreting the legislature’s NJTCA notice
requirement to cover common law intentional torts, the New
Jersey Supreme Court in Velez closely examined the important
purposes underlying the requirement: to permit a public entity
time and resources to investigate, defend, and correct the
practices which gave rise to the claim. 180 N.J. at 290. Those
considerations are no less important here, where Plaintiff has
alleged a wide-ranging scheme between the Township’s mayor and
other government officials.
Moreover, Plaintiff’s conclusory allegation that Defendants
were motivated by private concerns and were not acting in the
execution of any public function contradicts the thrust of her
Second Amended Complaint: that this internet defamation campaign
20
was part of an expansive conspiracy directed by Defendant Mayer
to squelch political opposition and as the product of a
municipal policy or custom of political retaliation. Such
conclusory assertions are insufficient to state a claim under
the pleading scheme of the Federal Rules and Iqbal, but these
allegations confirm that Plaintiffs’ Second Ame7nded Complaint
addresses torts of municipal officials arising from their public
functions. Accordingly, because the Second Amended Complaint
provides no indication that she has satisfied the notice
requirement under the NJTCA, Plaintiff’s tort claims for false
light (Count XIII), tortious interference with a business
relationship (Count XIIV), intentional infliction of emotional
distress (Count XV), and defamation (Count XII) will be
dismissed again with prejudice.
B.
Statute of limitations
Next, Defendants argue that Plaintiff’s re-filed claims
under § 1983 and § 1985 (Counts IV, VII, VIII, IX, X, and XI)
remain time-barred pursuant to the August 21 Opinion finding
that the two year limitations period applicable to Plaintiff’s
claims had lapsed for most claims before the filing her of
Complaint and that the statute of limitations should not be
equitably tolled. Defendants contend that the Second Amended
Complaint bases claims on the same alleged incidents held
untimely in the previous iteration of Plaintiff’s Amended
21
Complaint: her tenure as a Gloucester Township Councilwoman from
January 2008-January 2012 (Second Am. Compl. ¶¶ 37-70); an
alleged conspiracy to manufacture voting fraud charges against
her in March 2012-July 2012 (id. ¶¶ 71-90); harassment at her
workplace at the New Jersey Motor Vehicle Commission in
Turnersville between July 19, 2010 and November 14, 2012 (id. ¶¶
91-99); an allegedly false arrest from November 7, 2012 and
ensuing malicious prosecution that was finally dismissed on
March 27, 2013 (id. ¶¶ 100-146); and an internet defamation,
intimidation, and sexual harassment campaign consisting of blog
posts published between November 9, 2012 and March 4, 2013. (Id.
¶¶ 147-180.) 4 Plaintiff contends that the statute of limitations
as to her tort and constitutional claims are tolled by equitable
tolling, the discovery rule, and ineffective assistance of
counsel, and that her claims arising from her malicious
prosecution are timely because they did not accrue until March
27, 2013.
Defendants’ statute of limitations argument is an
affirmative defense and “the burden of establishing its
4
The Court found Plaintiff’s claims based on these incidents
time-barred except for those based on the allegedly improper
prosecution, because it was not clear from the face of the
Amended Complaint when charges against her were dismissed, and
for those based on statements published on the Internet after
November 14, 2012, which limitations period lapsed after the
November 14, 2014 filing of her Complaint. Evans, 124 F. Supp.
3d at 353.
22
applicability to a particular claim rests with the defendant.”
Pension Trust Fund for Operating Engineers v. Mortgage Asset
Securitization Transactions, Inc., 730 F.3d 263, 271 (3d Cir.
2013). A statute of limitations defense may be raised by motion
under Rule 12(b)(6) if the limitations bar is apparent on the
face of the complaint. Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014). Moreover, the Third Circuit has stated in the
context of the discovery rule that when “the pleading does not
reveal when the limitations period began to run . . . the
statute of limitations cannot justify Rule 12 dismissal.”
Schmidt, 770 F.3d at 251 (collecting cases) (quotation and
citation omitted).
It is clear from the face of the Second Amended Complaint
that Plaintiff’s tort and constitutional claims arising from her
time as a Gloucester Township councilwoman, from the purported
voting fraud incident, and the alleged workplace harassment she
suffered at the Motor Vehicles Commission remain time-barred,
and that no amended allegations in this iteration of her
complaint justify equitable tolling or the discovery rule.
Plaintiff now alleges that she did not learn that a constituent
“had been coerced into signing a false affidavit under threat of
arrest and lawsuit” until December 2012 (Second Am. Compl. ¶
90), meaning that her injury did not accrue until then, but this
Court has already ruled that such an averment, even if pleaded,
23
would not make her claim timely. Evans, 124 F. Supp. 3d at 353. 5
Accordingly, the Court finds Plaintiff’s § 1983 and § 1985
claims time-barred to the extent that they rely on her time as a
Gloucester Township councilwoman, the purported voting fraud
incident, and the alleged workplace harassment at the Motor
Vehicles Commission.
Similarly, Plaintiff’s tort and constitutional claims
arising from her allegedly false arrest remain untimely. “[T]he
statute of limitations upon a § 1983 claim seeking damages for a
false arrest . . . begins to run at the time the claimant
becomes detained pursuant to legal process.” Wallace v. Kato,
549 U.S. 384, 397 (2007). “The relevant inquiry becomes whether
the plaintiff had sufficient information on the night of his/her
arrest to state a claim for false arrest.” Dique v. Mulvey, Civ.
04-563 (KSH), 2008 WL 1882856, at *5 (D.N.J. Apr. 24, 2008),
aff'd sub nom. Dique v. New Jersey State Police, 603 F.3d 181
(3d Cir. 2010). Plaintiff now formally alleges in the Second
Amended Complaint that she was unaware at the time of her arrest
“that Defendant, P/O Benjamin Lewitt had intentionally
misrepresented the existence of probable cause for her arrest”
and that she “had no reasonable grounds to suspect that
5
Plaintiff offers no new allegations or arguments in her
briefing to find claims arising from her time as councilwoman or
at the Motor Vehicles Commission no longer time-barred.
24
Defendant, P/O Benjamin Lewitt, had any motivation other than
faithfully reporting statements made by an alleged victim.”
(Second Am. Compl. ¶¶ 120-21.) She contends that the discovery
rule now applies to her false arrest claim because she did not
learn of the alleged lack of probable cause until criminal
discovery was produced to her attorney on or around February 1,
2013; until then, she argues, she did not know the facts
necessary to prove an arrest without probable cause. But
regardless of these new allegations, Plaintiff knew at the time
of her arrest that she did not commit the crime. If she always
knew she was innocent, the discovery rule does not apply and her
claim accrued on the day of her arrest. She had two years after
arrest to determine whether it was supported by probable cause.
What Plaintiff alleges she discovered later about the fabricated
evidence from Ms. DeLucca would, it seems, simply be evidence
for her malicious prosecution claim, not her false arrest.
Because Plaintiff was arrested on November 8, 2012, the two-year
limitations period on her claim expired before the November 14,
2014 filing of the instant lawsuit. Plaintiff’s false arrest
claim is time-barred.
In contrast, amendments to the Second Amended Complaint
render Plaintiff’s claims arising from her malicious prosecution
and internet harassment facially timely.
Malicious prosecution
claims do not accrue until charges are dismissed. Ginter v.
25
Skahill, 298 Fed. App’x 161, 163 (3d Cir. 2008) (citing Smith v.
Holtz, 87 F.3d 108, 111 (3d Cir. 1996).) The Second Amended
Complaint now clarifies that Plaintiff’s disorderly persons
citations were dismissed by the Gloucester Township Municipal
Court on March 27, 2013; the two-year limitations period on her
claim had not yet lapsed by the November 2014 filing of
Plaintiff’s first complaint. Similarly, the Second Amended
Complaint identifies particular blog posts by the date on which
each was published. Any claims based on statements published
prior to November 14, 2012 are time-barred, but Plaintiff has
alleged numerous statements published later for which the
statute of limitations had not yet run when she filed her
original Complaint.
For these reasons, the Court now finds that Plaintiff’s
claims arising from her malicious prosecution and internet
harassment are not time-barred and will consider their
sufficiency under Fed. R. Civ. P. 12(b)(6). 6 Plaintiff’s tort and
constitutional claims arising from her time as a Gloucester
Township councilwoman, from the purported voting fraud incident,
from the alleged workplace harassment she suffered at the Motor
6
Accordingly, the Court need not address Plaintiff’s arguments
that the statute of limitations should be equitably tolled on
these claims because of ineffective assistance of counsel.
26
Vehicles Commission, and from her allegedly false arrest remain
time-barred.
C.
Section 1985 conspiracy claim
Plaintiff’s Count IV presents a claim under § 1985, in
which she alleges that Defendants engaged in a conspiracy to
deprive Plaintiff of her constitutional rights under the First,
Fourth, and Fourteenth Amendments based on gender
discrimination. Section 1985(3) creates a cause of action
against any two persons who “conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . .” 42. U.S.C. §
1985(3). To state a claim under § 1985(3), a plaintiff must
allege the following elements: “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the law; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or
privilege of a citizen of the United States.” United Bhd. of
Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463
U.S. 825, 828-29 (1983). The second element requires plaintiff
to allege that the conspiracy was motivated by racial, gender,
or other class-based discriminatory animus. Griffin v.
27
Breckenridge, 403 U.S. 88, 102 (1971); Slater v. Susquehanna
Cnty., 465 F. App’x 132, 136 (3d Cir. 2012) (quoting Farber v.
City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006)).
Defendants argue that Plaintiff has again failed to state a
claim under § 1985(3) for three reasons: because the Second
Amended Complaint contains only conclusory allegations of a
conspiracy, because this Court already held that defamation is
not actionable for purposes of a § 1985 claim, and because
Plaintiff has not alleged that the actions allegedly taken
against her were motivated by animus towards women as a class.
In opposition, Plaintiff argues that her claim is actionable
because “[a] large portion of the hostilities directed against
Mrs. Evans came in the form of stereotypical sexual harassment.”
(Pl. Br. at 13.)
As a preliminary matter, the Second Amended Complaint again
fails to adequately allege the existence of a conspiracy, the
first element of a claim under § 1985(3). Plaintiff has made
only conclusory allegations that Defendants have “acted in
concert” to deprive her of rights and were “acting in
furtherance of a conspiracy” (Second Am. Compl. ¶¶ 270, 271,
275), and adds very little to suggest that the conduct about
which Plaintiff complains was anything more than a series of
unrelated acts by several individuals. This is insufficient to
allege an actual conspiracy.
28
Additionally, the Second Amended Complaint again fails to
allege the deprivation of any federally protected right.
Plaintiff’s § 1985(3) claim, at least with respect to Defendant
Mayer, is premised on allegations that Mayer and others
“subjected Plaintiff to an internet defamation campaign which
included using plaintiff’s photograph to create fake profiles on
internet porn sites” and engaged in a “systematic pattern of
manufacturing an allegation, publicizing it, and then
contemporaneously initiating a libelous and sexually degrading
blog attack against plaintiff through gtrmc.com account
holders.” 7 (Second Am. Compl. ¶¶ 280, 281.) While Plaintiff’s
bolstered allegations that Defendants’ internet conduct may
constitute sexual harassment, and thus be considered gender
animus, Plaintiff cannot escape the fact that this Court has
previously held that defamation is not actionable under §
1985(3). Evans, 124 F. Supp. 3d at 355. To the extent that
Plaintiff’s § 1985(3) claim is premised on the voting fraud
incident and Plaintiff’s allegedly false arrest and malicious
prosecution, Plaintiff has offered no allegations as to any
gender-based “invidiously discriminatory animus behind the
7
For purposes of this analysis, the Court does not consider
Mayer’s alleged conduct upon becoming Mayor of Gloucester
Township in 2010, including encouraging council members to
deride and intimidate Plaintiff, because this conduct is outside
the limitations period as explained above.
29
conspirators’ actions” regarding those incidents. Griffin, 403
U.S. at 102. A conspiracy to defame a political opponent, as
odious as that conduct may be, is not within the prohibitions of
§ 1985(3). Therefore, the Court will again dismiss Plaintiff’s §
1985(3) claim against Defendant Mayer for failing to allege the
deprivation of a federally protected right.
D.
Section 1983 claims
Counts VII through XI of the Second Amended Complaint
present claims for relief under § 1983, alleging violations of
Plaintiff’s constitutional rights under the First, Fourth, and
Fourteenth Amendments.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ...
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. To state a claim for relief under section
1983, a plaintiff must allege: 1) the violation of a right
secured by the Constitution or laws of the United States and 2)
that the alleged deprivation was committed or caused by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
30
Cir. 1994). See also Malleus v. George, 641 F.3d 560, 563 (3d
Cir. 2011).
Defendants contend that Plaintiff’s § 1983 claims against
Defendant Mayer must be dismissed because she has failed to
adequately allege any underlying constitutional violations and
because she has failed to establish Defendant Mayer’s individual
capacity liability and, in the alternative, that he enjoys
qualified immunity for any purportedly wrongful conduct.
Plaintiff counters that Defendant Mayer is vicariously liable
for any wrongful conduct of his co-conspirators and is not
entitled to qualified immunity.
At the outset, the Court rejects Plaintiff’s argument that
Defendant Mayer may be held vicariously liable for the wrongful
conduct of any of his alleged co-conspirators under the doctrine
of civil conspiracy. As discussed in Part C, supra, Plaintiff
has failed to adequately allege the existence of a conspiracy;
the Second Amended Complaint offers only conclusory statements
that Defendants “acted in concert” to deprive her of
constitutional rights. Instead, Plaintiff must allege facts
sufficient to establish Defendant Mayer’s direct individual
liability.
It is black-letter law that “[g]overnment officials may not
be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v.
31
Iqbal, 556 U.S. 662, 676 (2009). State actors may be liable only
for their own unconstitutional conduct. Bistrian v. Levi, 696
F.3d 352, 366 (3d Cir. 2012); Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988). In other words, to state a § 1983
claim against Defendant Mayer, Plaintiff must allege conduct he
undertook himself to deprive Plaintiff of constitutional rights,
or, as a policymaker for the Township, that he 1) “with
deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused
[the] constitutional harm;” or 2) he “participated in violating
the plaintiff's rights, directed others to violate them, or, as
the person in charge, had knowledge of and acquiesced in his
subordinates' violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quotations
and citations omitted). See also Barkes v. First Corr. Med.,
Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds
sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).
Plaintiff alleges in the Second Amended Complaint that
Defendant Mayer and others violated her First, Fourth, and
Fourteenth Amendment rights when they “subjected plaintiff to a
false voter fraud allegation, false arrest, malicious
prosecution and abused the criminal process to endanger
plaintiff’s employment in retaliation for her opposition to the
municipality’s culture of political patronage.” (Second Am.
32
Compl. ¶ 331.) Notwithstanding the Court’s conclusion above that
many of Plaintiff’s claims against Mayer are time-barred on the
face of the Second Amended Complaint, Plaintiff has failed to
allege sufficient facts demonstrating Mayer’s personal
involvement in the alleged wrongs to establish a § 1983 claim
against him in his individual capacity. The Second Amended
Complaint contains only the vague statement that “from January
2010 to the present, Defendant, David R. Mayer, along with a
core group of loyal municipal employees, acted in concert to
harm Plaintiff’s physical, financial and psychological well
being [sic] through a systematic pattern of harassment and
intimidation” (¶ 334), but this bare allegation is insufficient
to state a § 1983 claim for supervisory liability.
The Second Amended Complaint is similarly devoid of
allegations supporting an inference that Mayer was personally
involved or even aware of Plaintiff’s arrest on November 8, 2012
and subsequent prosecution. The allegations central to
Plaintiff’s arrest and subsequent prosecution focus on the
Township police officers who arrived on the scene on November 8,
2012 and others in the Police Department who allegedly failed to
adequately investigate the underlying incident on which the
charges against Plaintiff were based. Plaintiff does not allege
that Mayer was involved in the investigation of the underlying
incident or the decision to charge Plaintiff in a criminal
33
complaint. Consequently, Plaintiff’s allegations, accepted as
true, fail to set forth plausible grounds for Defendant Mayer’s
personal involvement in the November 8, 2012 arrest and
subsequent prosecution as required to state a § 1983 claim
against him. 8
In the alternative, Defendants argue that Defendant Mayer
enjoys qualified immunity for all of his purportedly wrongful
conduct. Qualified immunity protects government officials from
standing suit so long as their conduct “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); Kelly v. Borough of Carlisle, 622 F.3d
248, 253 (3d Cir. 2010). “When a qualified immunity defense is
raised a court should first determine whether the plaintiff has
asserted a violation of a constitutional right at all.” Larsen
v. Senate of Com. Of Pa., 154 F.3d 82, 86 (3d Cir. 1988); see
also Saucier v. Katz, 533 U.S. 194, 121 (2001). For the
following reasons, Plaintiff has failed to adequately allege any
violations of the First, Fourth, and Fourteenth Amendments.
1. First Amendment retaliation (Count VII)
8
The Court finds no need to address Plaintiff’s allegations
regarding conduct outside of the statute of limitations period,
including the supposedly trumped-up voter fraud allegation and
the alleged harassment at Plaintiff’s workplace.
34
Plaintiff claims that Defendants retaliated against her
after she engaged in speech protected by the First Amendment,
opposing the municipality’s patronage culture and supporting the
pay-to-play referendum. To establish a claim for violation of
the First Amendment based on protected speech, Plaintiff must
allege (1) that her conduct was constitutionally protected and
(2) that this conduct was a “substantial factor” or a
“motivating factor” in the alleged retaliatory actions. Mt.
Healthy School Dist. Bd. of Educ. V. Doyle, 429 U.S. 274, 287
(1977); Baldassare v. State of New Jersey, 250 F.3d 188, 195-96
(3d Cir. 2001). When the basis for a plaintiff’s retaliation
claim is an arrest or prosecution, she must also show the
absence of probable cause. Hartman v. Moore, 547 U.S. 250, 26566 (2006). Probable cause does not require certainty;
“[p]robable cause exists whenever reasonably trustworthy
information or circumstances within a police officer’s knowledge
are sufficient to warrant a person of reasonable caution to
conclude that an offense has been committed by the person being
arrested.” United States v. Myers, 308 F.3d 251, 255 (citing
Beck v. Ohio, 379 U.S. 89, 91 (1964).)
Plaintiff cannot show an absence of probable cause for her
purportedly false arrest. Plaintiff contends that, when the
felony stalking complaint/summons against Plaintiff was issued,
“Defendant P/O Benjamin, materially represented the existence of
35
a recorded statement by Angela DeLucca, and either knew, or
should have known, that he did not have sufficient grounds to
establish probable cause,” and that while law enforcement
officials represented to Plaintiff and her criminal counsel that
they had a recorded statement from Ms. DeLucca, no such
statement existed. (Second Am. Compl. ¶¶ 109, 120, 122, 329,
335.) Plaintiff’s allegations are belied by the videotaped
statement by Ms. DeLucca, 9 referred to in Plaintiff’s own Second
Amended Complaint (id. ¶ 105), where she describes a series of
harassing phone calls from Plaintiff to her and her family
9
The parties continue to disagree over when, if ever, Ms.
DeLucca’s recorded statement was handed over to Plaintiff or her
counsel. Plaintiff maintains that Gloucester Township officers
misrepresented the existence of Ms. DeLucca’s statement and it
was reasonable for her to believe that no probable cause existed
for her arrest because no readable file was produced to her
until dismissal motion practice in this litigation. Defendants
contend that this statement was made available to her and her
counsel during Plaintiff’s previous criminal case, in the winter
of 2013, and her allegations of misrepresentation in this case
speak more to her and her counsel’s incompetence than the
Gloucester Township Police Department’s malfeasance. The Court
agrees with Defendants: Plaintiff cannot maintain the façade
that no recorded statement exists, or that it was never made
available to her, because Defendants have shown that it was
provided to both of her criminal attorneys. (See Def. Mot. Ex.
B, Request Return Form dated 1/29/13.)
The Court may consider the substance of Ms. DeLucca’s
recorded statement at this stage in the litigation because
Plaintiff explicitly referred to it in the Second Amended
Complaint. See In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997)(“a document integral to or
explicitly relied upon in the complaint may be considered
without converting the motion [to dismiss] into one for summary
judgment”).
36
members, instances where Plaintiff followed her to her home, and
at least two occasions where Plaintiff damaged the gutter on her
home. Such statements can plainly give rise to probable cause
for the offenses of felony stalking or criminal mischief. 10
Accordingly, Plaintiff cannot state a claim for First
Amendment retaliation on the basis of her allegedly false arrest
and malicious prosecution. To the extent that her retaliation
claim is premised on Plaintiff’s time as a councilwoman, the
supposedly trumped-up voter fraud allegation, and the alleged
harassment at Plaintiff’s workplace, these incidents occurred
outside the limitations period and cannot give rise to a claim
for relief.
2. Fourth Amendment false arrest, malicious
prosecution, and abuse of process (Counts VIII, IX,
and X)
Plaintiff avers that Defendants violated her Fourth
Amendment rights when Gloucester Township Police Officers
arrested Plaintiff and subjected her to a prosecution without
probable cause. “The proper inquiry in a section 1983 claim
based on false arrest or misuse of the criminal process is not
10
N.J.S.A. 2C:12-10(b) provides that “[a] person is guilty of
stalking, a crime of the fourth degree, if he purposefully or
knowingly engages in a course of conduct directed at a specific
person that would cause a reasonable person to fear for his
safety or the safety of a third person or suffer other emotional
distress. N.J.S.A. 2C:17-3a(1) provides that “[a] person is
guilty of criminal mischief if he purposely or knowingly damages
tangible property of another . . . .”
37
whether the person arrested in fact committed the offense but
whether the arresting officers had probable cause to believe the
person arrested had committed the offense.” Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). 11 As described
above, Plaintiff has not – and cannot, with the existence of Ms.
DeLucca’s recorded statements being acknowledged – adequately
alleged a lack of probable cause. Such probable cause for the
arrest and prosecution existed in DeLucca’s recorded statement
prior to the arrest. This shortcoming is fatal to her claims for
false arrest and malicious prosecution.
Plaintiff further alleges that Defendants violated her
Fourth Amendment rights and committed an abuse of process when
Gloucester Township Police Officers attempted to effectuate her
November 8, 2012 arrest at her workplace, which was “highly
unusual” and “unnecessarily punitive”. (Second Am. Compl. ¶¶
364-65.) To state a claim for abuse of process under New Jersey
11
To state a claim for false arrest, a plaintiff must show: “(1)
that there was an arrest; and (2) that the arrest was made
without probable cause.” James v. City of Wilkes-Barre, 700 F.3d
675, 680 (3d Cir. 2012). To state a claim for malicious
prosecution, a plaintiff must show “(1) the defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in the
plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered a deprivation of liberty consistent with
the concept of seizure as a consequence of a legal proceeding.”
DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.
2005).
38
Law, a plaintiff must show “(1) an ulterior motive and (2) some
further act after an issuance of process representing the
perversion of the legitimate use of process.” Stolinski v.
Pennypacker, 772 F. Supp. 2d 626, 644 (D.N.J. 2011). “Process is
not abused unless after its issuance the defendant reveals an
ulterior purpose he had in securing it by committing further
acts whereby he demonstrably uses the process as a means to
coerce or oppress the plaintiff. In the absence of some coercive
or illegitimate use of the judicial process there can be no
claim for its abuse.” Ruberton v. Gabage, 654 A.2d 1002, 1105
(N.J. App. Div. 1995) (internal citations omitted).
The Second Amended Complaint does not state sufficient
grounds for Plaintiff to state an abuse of process claim that is
plausible on its face because Plaintiff has not alleged an act
that represents a “perversion of the legitimate use of
process.” 12 Despite Plaintiff’s assertion that it was outside
normal operating procedure for police to attempt to arrest her
at the Motor Vehicle Commission, and that officers did so only
to embarrass her at her workplace, such an arrest is not
12
The parties disagree about what is the relevant “process” in
this case: the arrest itself, as Defendants contend, or the
issuance of criminal charges, as Plaintiff argues; if the
relevant process is Plaintiff’s arrest, Plaintiff has alleged no
abusive “further acts after its issuance” and her claim must
fail. Because the Court finds that Plaintiff has not alleged a
perversion of process, the Court need not decide this question.
39
illegitimate (i.e. an act that exceeded the scope of what was
reasonably necessary to effectuate Plaintiff’s arrest).
Plaintiff has only alleged in a conclusory fashion that the
police officers “knew or should have known” that she was not at
her office at the time, when that was a logical place for the
officers to find her. In any event, no process was executed in
her workplace, as Plaintiff voluntarily reported to the police
station according to the Second Amended Complaint. Accordingly,
Plaintiff’s claim for abuse of process will be dismissed.
3. Fourteenth Amendment (Count XI)
Plaintiff alleges a violation of substantive due process
under the Fourteenth Amendment for “deprivation of liberty
interest in reputation and property interest in employment.”
(Second Am. Compl. Claim XI.) Although Plaintiff alleges that
Mayer personally posted disparaging comments on the internet
about her and directed others to engage in additional forms of
cyber harassment, such allegations are also insufficient to
state a claim under § 1983. According to Third Circuit
precedent, allegations of defamation are “actionable under 42
U.S.C. § 1983 only if it occurs in the course of or is
accompanied by a change or extinguishment of a right or status
guaranteed by state law or the Constitution.” Clark v. Twp. of
Falls, 890 F.2d 611, 619 (3d Cir. 1989). “A liberty interest
requires more than mere injury to reputation.” Id. at 620. “To
40
have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead have
a legitimate claim of entitlement to it.” Baraka v. McGreevey,
481 F.3d 187, 205 (3d Cir. 2007) (citing Bd. of Regents of State
Coll. v. Roth, 408 U.S. 564, 577 (1972)).
Plaintiff claims that the loss of her employment with the
Motor Vehicle Commission constitutes the “extinguishment of a
right or status guaranteed by state law” because “New Jersey
creates a property interest in protecting an individual’s
employment relationships from tortuous [sic] interference.” (Pl.
Br. at 23.) But Plaintiff has failed to show that she had a
right to her employment sufficient to trigger a violation of due
process. She relies on Bishop v. Wood as standing for the
proposition that an individual always has a property interest in
employment that is protected by the due process clause of the
Fourteenth Amendment, but that reliance is misplaced. There, the
Supreme Court noted that “[a] property interest in employment
can, of course, be created by ordinance, or by an implied
contract,” but did not hold that every state employment
agreement gives rise to such an interest. 426 U.S. 341, 344
(1976). Instead, the Court noted that “a person’s interest in a
benefit is a ‘property’ interest for due process purposes if
there are . . . rules or mutually explicit understandings that
41
support his claim of entitlement to the benefit and that he may
invoke at a hearing.” Id. at n. 6 (citing Perry v. Sindermann,
408 U.S. 593, 601 (1972).) “Not all contracts with a federal or
state agency create a protectable property interest under the
due process clauses of the Fifth and Fourteenth Amendments.”
Unger v. National Residents Matching Program, 928 F.3d 1392,
1398 (3d Cir. 1991).
Plaintiff has not alleged that anything in her employment
agreement created a legitimate expectation to continued
entitlement to her job with the Motor Vehicle Commission. See
Roth, 408 U.S. at 578 (state employee’s property interest in
employment “was created and defined by the terms of his
appointment”); see also Unger, 928 F.3d at 1399 (employee had no
property interest in employment where she did not allege that
her “contract itself includes a provision that the state entity
can terminate the contract only for cause” or that she enjoyed
some other protected status). Accordingly, Plaintiff’s
substantive due process claim under the Fourteenth Amendment for
termination of employment will be dismissed.
In the alternative, Plaintiff brings claims under the
Fourteenth Amendment for selective enforcement, contending that
her false arrest and malicious prosecution constitute violations
of the Court’s Equal Protection jurisprudence. (Pl. Br. at 25.)
To establish a selective enforcement claim under the Fourteenth
42
Amendment, a plaintiff must show: “(1) that he was treated
differently from other similarly situated individuals, and (2)
that the selective treatment was based on an unjustifiable
standard, such as race, religion, or some other arbitrary
factor, or to prevent the exercise of a fundamental right.”
Dique v. New Jersey State Police, 603 F.3d 181, 184 n. 5 (3d
Cir. 2010). Plaintiff contends that she was treated differently
because of her exercise of her First Amendment rights, but as
discussed above, she has failed to allege a viable First
Amendment retaliation claim. Nor has Plaintiff alleged that she
was treated differently from other similarly situated
individuals for a discriminatory reason. Accordingly,
Plaintiff’s claims for selective enforcement under the
Fourteenth Amendment will be dismissed.
E.
Municipal liability (Counts I, II, III)
Plaintiff brings municipal liability claims against
Gloucester Township for failure to supervise its police
officers, for an unconstitutional custom, policy, or practice,
and for state created danger. Defendants argue that Plaintiff
has again failed to state a claim for municipal liability under
§ 1983 under any of these theories of liability. Plaintiff takes
the position that the Second Amended Complaint contains
sufficient allegations “to establish that a culture of political
retaliation existed within the Camden County Democratic Party,
43
and by extension the Municipality of Gloucester Township through
the actions of its elected and appointed party members.” (Pl.
Br. at 25.)
It is well-established that municipal liability under §
1983 “may not be proven under the respondeat superior doctrine,
but must be founded upon evidence that the government unit
itself supported a violation of constitutional rights.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658
(1978)). As a consequence, a municipality is liable under § 1983
for an unconstitutional policy or custom only when “execution of
a government's policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.” Monell, 436 U .S. at 694;
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(plurality opinion) (“[M]unicipal liability under § 1983
attaches where-and only where-a deliberate choice to follow a
course of action is made from among various alternatives by the
official or officials responsible for establishing final policy
with respect to the subject matter in question.”). Whether a
policy or a custom, “The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the ‘moving
force’ behind the injury alleged.” Bd. of Cnty. Comm'rs of Bryan
Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997). Thus, for
44
plaintiff to sufficiently demonstrate municipal liability for an
unconstitutional custom under § 1983, she must present facts to
support a finding that execution of a specific policy or custom,
or the directive of the municipality’s final decision maker,
caused the alleged harm. To maintain a claim for a failure to
supervise or discipline its police officers, a plaintiff must
show that the municipality was deliberately indifferent to the
constitutional rights of its inhabitants. Groman v. Township of
Manalapan, 47 F.3d 628, 637 (3d Cir. 1995).
Nearly all of Plaintiff’s allegations giving rise to her
claim for municipal liability pertain to events that happened
before November 14, 2012; the two-year limitations period for
personal injury claims in New Jersey passed for these incidents
before she filed her first Complaint on November 14, 2014.
Notwithstanding their untimeliness, Plaintiff’s allegations of
an unconstitutional custom or policy are insufficient. She
asserts only that, during Camden County Democratic Committee
meetings, “it was acknowledged and understood that political
opponents were being harassed and intimidated by political
operatives, law enforcement, and municipal authorities” and that
“Defendants David A. Mayer and David Harkins, were aware that
this culture existed and were deliberately indifferent to
deterring this activity, or disciplining individuals involved in
the harassment.” (Second Am. Compl. ¶¶ 41, 201-03, 229.) But
45
Plaintiff offers nothing more to establish that an
unconstitutional policy existed, that the municipality was
deliberately indifferent to that policy, or that the Township or
Police Department were the “moving force” behind the alleged
misconduct, rather than Defendants as individuals. As this Court
found with respect to Plaintiff’s first Amended Complaint,
Plaintiff’s allegations attempt to frame a series of
separate incidents as an extensive and prolonged
conspiracy to retaliate against her for her political
views, but the Amended Complaint contains no facts to
support the conclusion that each act was the direct
result of a municipal policy or custom or that a final
policymaker’s conduct caused the alleged constitutional
harm.
Evans, 124 F. Supp. 3d at 359. Accordingly, Plaintiff’s claims
for a failure to supervise and an unconstitutional policy or
custom will be dismissed.
Plaintiff’s claim for state created danger similarly fails.
The Due Process Clause does not impose an affirmative obligation
on the state to protect its citizens. Phillips v. County of
Allegheny, 515 F.3d 224, 235 (3d. Cir. 2008). “The state-created
danger theory operates as an exception to that general rule and
requires plaintiffs to meet a four part test: (1) the harm
ultimately caused to the plaintiff was foreseeable and fairly
direct; (2) the state actor acted in willful disregard for the
plaintiff’s safety; (3) there was some relationship between the
state and the plaintiff; and (4) the state actor used his
46
authority to create an opportunity for danger that otherwise
would not have existed.” Id. Plaintiff alleges that Gloucester
Township is liable because Defendant Mayer “identif[ied
Plaintiff] as a political enemy of his Administration and the
Camden County Democrat Committee” and participated and
encouraged the harassment against her, which ultimately resulted
the loss of her employment. (Second Am. Compl. ¶¶251-53.)
Plaintiff’s allegations do not establish any of these four
elements; she has failed to allege that Defendant Mayer took any
affirmative acts that put Plaintiff at risk, that there was any
special relationship between Plaintiff and Defendant Mayer that
imposed a duty of care on him, or that the alleged harassment
threatened her safety in a manner that is recognized by the
Third Circuit. See, e.g., Walter v. Pike County, Pa., 544 F.3d
182 (3d Cir. 2008) (considering state-created danger claim where
police officers failed to warn Plaintiff of threatening behavior
by the man who later murdered Plaintiff); Phillips, 515 F.3d 224
(considering state-created danger claim where state actor shot
and killed Plaintiff); Kneipp v. Teider, 95 F.3d 1199 (3d Cir.
1996) (Plaintiff stated a claim for state-created danger where
police officers left an intoxicated woman to walk home alone on
a cold night and she fell down an embankment and suffered
permanent brain damage). Therefore, Plaintiff’s claims under a
state-created danger theory of liability will be dismissed.
47
F.
18 U.S.C. § 241 claim (Count V)
Plaintiff attempts to bring a new claim in the Second
Amended Complaint for a conspiracy to deprive her “of a
constitutional right in violation of 18 U.S.C. § 241.” (Second
Am. Compl. Count V.) Plaintiff cannot bring a civil claim under
18 U.S.C. § 241 because the statute creates no private right of
action and none can be implied. Carpenter v. Ashby, 351 Fed.
Appx. 684, 688 (3d Cir. 2009) (citing United States v. City of
Philadelphia, 644 F.2d 187, 199 (3d Cir. 1980)). Accordingly,
Count V of the Second Amended Complaint will be dismissed.
G.
RICO claim (Count VI)
Plaintiff also brings a new claim in the Second Amended
Complaint for violation of the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, 18 U.S.C. § 1961, et seq., for
subjecting “plaintiff to a systematic pattern of harassment and
intimidation for opposing the municipality’s political patronage
system.” (Second Am. Compl. ¶ 313.) To plead a violation of
RICO, a plaintiff must allege “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Sedima,
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).
Plaintiff’s RICO claim will be dismissed because she has alleged
none of the four required elements.
An enterprise is defined as “any individual, partnership,
corporation, association, or other legal entity, and any union
48
or group of individuals associated in fact although not a legal
entity.” 18 U.S.C. § 1961(4). Although, as Plaintiff points out,
she has named in her Second Amended Complaint Gloucester
Township as a defendant, which qualifies for that definition,
she has included no such allegation in her complaint.
Nor has Plaintiff adequately alleged a pattern of
racketeering activity, which requires a plaintiff to show that
each defendant has committed at least two acts of racketeering
activity within ten years of each other. 18 U.S.C. § 1961(5);
H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 240
(1989). These acts must bear “the indicia of ‘relatedness’ and
‘continuity.’” Genty v. Resolution Trust Corp., 937 F.2d 899,
907 (3d Cir. 1991).
Plaintiff alleges four violations of 18 U.S.C. § 1513(b)(1)
and (2) as predicate acts, asserting that Defendants violated
the statute “by coercing a witness to provide false testimony in
a state court proceeding;” “by attempting to intimidate her for
testifying in a state court proceeding;” “by tampering with her
state employment in retaliation for her previous testimony in
Berry v. DiJosie, Docket No. L-1876-12;” and “by subjecting her
to a false arrest and malicious prosecution for reporting the
perceived retaliation to the Department of Justice.” (Second Am.
49
Compl. ¶¶ 314, 317-19.) 13 Although retaliation under § 1513
appears on the list of predicate offenses in § 1961(1), it is
inapplicable here, and the Court need not accept Plaintiff’s
legal conclusion to the contrary. 14 The statute requires a nexus
to federal proceedings, which Plaintiff has not alleged. Section
1513(b)(1) punishes threats and retaliation against any person
for “the attendance of a witness or party at an official
proceeding, or any testimony given or any record, document, or
other object produced by a witness in an official proceeding.”
The term “official proceeding,” as used in § 1513, means
(A)
(B)
(C)
(D)
A proceeding before a judge or court of the United
States, a United States magistrate judge, a bankruptcy
judge, a judge of the United States Tax Court, a special
trial judge of the Tax Court, a judge of the United
States Court of Federal Claims, or a Federal grand jury;
A proceeding before the Congress;
A proceeding before a Federal Government agency which is
authorized by law; or
A proceeding involving the business of insurance whose
activities affect interstate commerce before any
insurance regulatory agency or any agent or examiner
appointed by such official or agency to examine the
affairs of any person engaged in in the business of
insurance whose activities affect interstate commerce.
13
Plaintiff further argues that Defendants violated 18 U.S.C. §
1513(e) by interfering with her employment at the Motor Vehicles
Commission, but this allegation will not be considered because
it does not appear in the Second Amended Complaint.
14 A court is not required on a motion to dismiss to accept as
true Plaintiff’s legal conclusions. Although a court must accept
as true all factual allegations in a complaint, that tenet is
“inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009).
50
18 U.S.C. § 1515(a). Therefore, the conduct of which Plaintiff
complains – witness intimidation and retaliation for
participating in New Jersey state proceedings – is not conduct
which is punishable under § 1513(b)(1) and cannot serve as a
predicate act for Plaintiff’s instant RICO claim.
Moreover, even assuming that Plaintiff’s allegation that
her purportedly false arrest and malicious prosecution were in
retaliation for a report she made to the Department of Justice,
and that such an action qualifies as retaliation for providing
“any information relating to the commission or possible
commission of a Federal offense” under § 1513(b)(2), Plaintiff’s
allegation regarding Defendant Mayer’s involvement in those
incidents is merely conclusory. As discussed above in reference
to Defendant Mayer’s individual liability for Plaintiff’s § 1983
claims, the Second Amended Complaint is missing essential
allegations supporting an inference that Mayer was personally
involved or even aware of Plaintiff’s arrest on November 8, 2012
and subsequent prosecution.
Accordingly, without sufficient allegations of an
enterprise and a pattern of racketeering activity, Plaintiff’s
RICO claim will be dismissed.
H.
Rule 11 Sanctions against Attorney McCoy
By separate motion [Docket Item 32], Defendants seek to
impose sanctions against Plaintiff’s attorney, Vera McCoy, for
51
the frivolous filing of Plaintiff’s Second Amended Complaint.
Defendants argue that Attorney McCoy simply re-stated the claims
dismissed by this Court in the August 21 Opinion, including
those dismissed with prejudice; added new claims based on the
same conduct previously found untimely; and continued to ground
her claims in the patently false assertion that the Gloucester
Township Police never provided Plaintiff with a copy of Ms.
DeLucca’s recorded statement in her criminal case. Plaintiff
asserts that the Second Amended Complaint presents factual
matter sufficient to trigger equitable tolling and make her
claims timely, and sufficient to state a claim under Rule
12(b)(6).
Fed. R. Civ. P. 11(b) provides that “[b]y presenting to the
court a pleading, written motion, or other paper . . . an
attorney . . . certifies to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances: (1) it is not being presented for any
improper purpose . . . ; (2) the claims, defenses, and other
legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law; (3) the factual
contentions have evidentiary support . . . .” If Rule 11(b) is
violated, then Rule 11(c) permits the Court to impose sanctions,
including reasonable expenses or nonmonetary directives.
52
Rule 11 provides that attorneys may be sanctioned if they
fail to make an objectively reasonable inquiry into the legal
legitimacy of a pleading. Fed. R. Civ. P. 11(b)(2) & (c);
Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987).
Attorneys are required to conduct a “normally competent level of
legal research to support the[ir] presentation.” Simmerman v.
Corino, 27 F.3d 58, 62 (3d Cir. 1994) (quoting Mary Ann
Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988)).
Sanctions should be issued “only in the ‘exceptional
circumstance,’ where a claim or motion is patently unmeritorious
or frivolous.” Doering v. Union Cnty Bd. of Chosen Freeholders,
857 F.2d 191, 194 (3d Cir. 1988) (quoting Gaiardo, 835 F.2d at
483). Rule 11 sanctions may be imposed even in the absence of
subjective bad faith. Lieb v. Topstone Indus., 788 F.2d 151, 157
(3d Cir. 1986).
It is plain that most of the Second Amended Complaint
borders on frivolous and ungrounded. Attorney McCoy not only
ignored this Court’s clear directives regarding the timeliness
and sufficiency of claims asserted and dismissed in the first
Amended Complaint, but brings claims that even a cursory look
into precedent would reveal are barred, including a purported
civil claim under 18 U.S.C. § 241, a § 1985 claim based on
defamation, and a state-created danger claim without any
allegations of threat to Plaintiff’s bodily safety. Plaintiff’s
53
attempt to do an end-run around the NJTCA notice requirement
presents a disingenuous reading of the New Jersey Supreme
Court’s decision in Velez, her § 1983 claims against Defendant
Mayer contain no allegations of his personal involvement in her
alleged harassment, and her claims for First Amendment
retaliation, false arrest, and malicious prosecution rest on
obviously false contentions about the existence of Ms. DeLucca’s
recorded statements. No reasonable attorney could have made due
inquiry into the factual and legal bases of these contentions
and still made them a basis of the Second Amended Complaint.
These errors reach the high standard for imposing sanctions
under Rule 11: a significant portion of Plaintiff’s Second
Amended Complaint consists of claims that are patently
unmeritorious, including claims previously dismissed on the
merits by this Court in a detailed Opinion and Order filed
August 21, 2015, in Evans v. Gloucester Twp., 124 F. Supp. 3d
340 (D.N.J. 2015). Moreover, Plaintiff’s counsel did not seek
reconsideration of that Opinion, nor did she argue in this case
that the previous rulings were incorrect. Instead, Plaintiff’s
counsel made double work for the movants, who had already
prevailed on the identical or similar claims yet had to expend
attorneys’ time and fees to address them again. .
Having found that Rule 11 sanctions against Ms. McCoy are
warranted, the Court must now determine the nature of the
54
sanctions. Rule 11 provides, “A sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated. The
sanction may include nonmonetary directives; an order to pay a
penalty into court; or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant
of part or all of the reasonable attorney’s fees and other
expenses directly resulting from the violation.” Fed. R. Civ. P.
11(c). The Court will impose a monetary sanction on Ms. McCoy,
equal to one-third of Defendants’ reasonable lodestar in
preparing and filing this dismissal motion addressing the twicefaulty portion of the Second Amended Complaint, and in
submitting Defendants’ Rule 11 motion and reply papers. This is
a rough percentage of the redundant claims she included in the
Second Amended Complaint, despite prior law of the case and with
no reasonable basis for reconsideration, and the truly baseless
matter in the § 241 claim and § 1985 claim based on defamation.
For other claims, though not meritorious, no sanction has been
imposed because there could have been arguable merit and the
claims had not previously been presented and rejected.
The Court acknowledges that it is being cautious in
assessing only one-third of the efforts directed at the Second
Amended Complaint as having been infected by Ms. McCoy’s Rule 11
violation. The Court is mindful, however, that the principal
55
purpose of Rule 11 sanctions is to recognize and deter
substandard performance in an exceptional case. The Advisory
Committee Note (1993) emphasizes that “the purpose of Rule 11 is
to deter rather than to compensate.” Where an award of fees is
made to another party, it should be limited to the portion of
the expenses and attorneys’ fees for services “directly and
unavoidably caused by the violation of the certification
requirement,” Advisory Committee Note to Rule 11 Amendments
(1993). Rule 11 should never be enforced to deter advocacy that
is reasonable but unsuccessful in the end, nor is Rule 11 meant
to deter non-frivolous arguments for extensions of existing law.
Striking this balance, the Court is confident that an award to
Defendants equal to one-third of the fees and expenses for legal
services incurred in addressing the Second Amended Complaint
will suffice to deter Ms. McCoy from future violations of the
Rule 11 certification requirement while redressing Defendants’
expenditures on account of Plaintiff’s Rule 11 violation.
Defendants may submit their Affidavit for Fees and Services
consistent with L. Civ. R. 54.2 within fourteen (14) days of the
entry of the accompanying Order. Plaintiff’s counsel will have
fourteen (14) days thereafter to submit any objection as to the
amount of fees and expenses, including any objection based on
inability to pay such sanction. Defendants may respond to
56
Plaintiff’s counsel’s submission within seven (7) days
thereafter.
CONCLUSION
An accompanying Order will be entered.
June 29, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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