SMALLS v. RIVIERA TOWERS CORPORATION et al

Filing 152

OPINION. Signed by Judge Renee Marie Bumb on 4/13/2018. (dmr)

[Dkt. No. 134]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PATRICIA SMALLS,
Plaintiff,
Civil No. 16-847(RMB/KMW)
v.
RIVIERA TOWERS CORP., et al.,

OPINION

Defendants.

This matter comes before the Court on the Motion for
Summary Judgment filed by Defendants First Service Residential
and Anthony Iancono 1 [Docket No. 134] (collectively, the
“Defendants”). The procedural history of this case is protracted
and has been set forth in this Court’s prior Opinions. [See,
e.g., Docket No. 124].
In their Motion for Summary Judgment, Defendants have set
forth documentary evidence that demonstrates that Plaintiff’s
apartment, 27H located at Riviera Towers, was ordered to be sold
by virtue of a default judgment entered against her in the

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By Order entered January 26, 2018, [Docket No. 125], the Court
converted the Defendants’ Motion to Dismiss to a Motion for
Summary Judgment, and the Court set forth a briefing schedule.
On March 9, 2018, the Court granted Plaintiff additional time to
respond to Defendants’ Motion, [Docket No. 139]. Plaintiff
seeks once again additional time to respond, but for the reasons
set forth infra the Court denies her request.

amount of $10,056.15. Defendants’ Statement of Material Facts
(“DSMF”), [Docket No. 134-1, at ¶ 7].

Plaintiff was

subsequently evicted and the apartment was sold. [Id. at ¶ 9].
The sale netted a surplus and the funds were deposited into the
New Jersey Superior Court Trust Fund. [Id. at ¶ 10].
By Order dated December 7, 2011, Plaintiff was ordered
“ejected and directed to immediately quit and surrender
possession” of the apartment to Riviera Towers. [Id. at ¶ 11,
Ex. D]. Riviera Towers proceeded to change the locks and
arranged for Plaintiff’s belongings to be inventoried and stored
by co-defendant American Movers, Inc. [Id. at ¶ 12].
I.

Legal Standard
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A fact is “material” if it will “affect the outcome of
the suit under the governing law . . . .” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if
it could lead a “reasonable jury [to] return a verdict for the
nonmoving party.” Id. at 248.
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence: all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.” Meyer v. Riegel Products
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Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial. Anderson, 477 U.S. at 252. In the
face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact
to find for the non-moving party . . . .” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Summary judgment motions thus require judges to ‘assess how
one-sided evidence is, or what a ‘fair-minded’ jury could
‘reasonably’ decide.’” Williams v. Borough of West Chester, Pa.,
891 F.2d 458, 460 (3d Cir. 1989) (quoting Anderson, 477 U.S. at
265).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)). Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)). The non-movant’s burden is rigorous: it “must point to
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concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.
1995).
II.

Analysis

Plaintiff makes three factual allegations against
Defendants: (1) Iancono, as an employee of FirstService,
“arranged for a locksmith to break, enter and change” the lock
on Plaintiff’s condo; (2) Iancono, “knowing he was dealing in
stolen property,” arranged for American Movers, Inc. to store
items from Plaintiff’s condo; and (3) Iancono lied to the West
New York Police. Plaintiff avers that Defendants’ alleged
actions violate the Fourth, Fifth, Seventh, and Fourteenth
Amendments of the Constitution, and 18 U.S.C. §§ 241 and 242.
All claims against Defendants fail. As Defendants correctly
state, they are not state actors, and thus, Plaintiff’s litany
of claims of constitutional violations fail as a matter of law.
See Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)(noting
that Section 1983 excludes from its reach “merely private
conduct, no matter how discriminatory or wrongful”)(quoting
Shelley v. Kraemer, 334 U.S. 1, 13 (1948)); see also McCabe v.
Mut. Aid Ambulance Serv., Inc., 2015 U.S. Dist. LEXIS 103766, at
*15, 2015 WL 4715260 (W.D. Pa. Aug. 7, 2015)(“It is well
recognized, that the Constitution protects citizens from
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infringement of their rights by the government, not by private
parties.”) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
156 (1978)). 2
Moreover, to the extent Plaintiff alleges violations of 18
U.S.C. §§ 241 and 242, these are criminal statutes, and they do
not authorize private rights of action. See, e.g., Jung v. Bank
of Am., N.A., No. 3:16-CV-00704, 2016 WL 5929273, at *3 (M.D.
Pa. Aug. 2, 2016)(collecting cases discussing lack of private
right of action under criminal statutes). Finally, Plaintiff’s
claims of conspiracy fail as there are no material facts in
dispute to support such a claim.
Plaintiff’s request for an extension of time to respond to
Defendants’ Motion will likewise be denied because Plaintiff
fails to set forth how the discovery she seeks will materially
affect the Summary Judgment Motion. “[I]t is well established
that a court ‘is obliged to give a party opposing summary
judgment an adequate opportunity to obtain discovery.’” Doe v.
Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (quoting

2

The Court notes that there are limited circumstances under
which a private party may be held to be a state actor. See
Vazquez v. City of Atl. City, No. 12-CV-01752 RMB/AMD, 2014 WL
2920820, at *4 (D.N.J. June 27, 2014). These exceptions to the
general rule, however, require a “close nexus” between the State
and the challenged action, which is absent here. See Brentwood
Academy v. Tennessee Secondary School Athl. Ass'n, 531 U.S. 288,
296 (2001).
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Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir. 1988)).
Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue
any other appropriate order.” Fed. R. Civ. P. 56(d).
“If discovery is incomplete, a district court is rarely
justified in granting summary judgment, unless the discovery
request pertains to facts that are not material to the moving
party's entitlement to judgment as a matter of law,” or the Rule
56(d) declaration is inadequate. Shelton v. Bledsoe, 775 F.3d
554, 568 (3d Cir. 2015)(citing Doe, 480 F.3d at 257)(emphasis
added); see also Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d
Cir. 1986). 3 Defendant seeks an extension so that she may receive
responses to her “First Set of Interrogatories, Productions, and
Admissions.” [See Docket No. 143]. There are multiple issues
with Plaintiff’s request. First, Plaintiff indicates that she is
waiting for a response from Riviera Towers Corporation and

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“An adequate affidavit or declaration specifies ‘what
particular information . . . is sought; how, if disclosed, it
would preclude summary judgment; and why it has not been
previously obtained.’” Shelton, 775 F.3d 554 at 568 (quoting
Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir. 1988)
(citing Hancock Indus. v. Schaeffer, 811 F.2d 225, 229–30 (3d
Cir.1987))).
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Kenneth Blane, who are no longer parties to this case. Second,
Plaintiff does not identify what information she seeks from
Defendants or how it would preclude summary judgment. As
discussed above, Defendants are entitled to judgment as a matter
of law because (1) they are not state actors, and (2) Plaintiff
may not bring causes of action against them pursuant to criminal
statutes. Plaintiff does not indicate that Defendants’ responses
to her discovery requests would change either of these
realities. Accordingly, Plaintiff’s extension request will be
denied.
Finally, because it appears that Plaintiff has alleged the
same causes of action against Defendant American Movers, Inc.,
and that the only potentially viable claim against American
Movers would be one for conversion, a purely state law claim,
the Court intends to enter an order to show cause why it should
not dismiss the federal claims against American Movers and
decline to exercise supplemental jurisdiction under 28 U.S.C. §
1367(c)(3).
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary
Judgment will be GRANTED, Plaintiff’s claims against
FirstService and Iancono will be dismissed, and judgment will be
entered in favor of FirstService and Iancono. Moreover, the
Court will require Plaintiff to show cause why her federal
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claims against American Movers should not be dismissed and why
the Court should not decline to exercise supplemental
jurisdiction over any state law claims.

s/_Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge

DATED: April 13, 2018

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