A.B.v. VINELAND BOARD OF EDUCATION et al
Filing
18
AMENDED OPINION. Signed by Judge Robert B. Kugler on 6/27/2018. (rtm, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
A.B., as guardian ad litem for her minor child,
C.D.,
Plaintiff,
v.
VINELAND BOARD OF EDUCATION, et
al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
Civil No. 17-11509 (RBK/KMW)
OPINION
KUGLER, United States District Judge:
This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Complaint. (ECF No. 9.) Defendant has challenged Plaintiff’s complaint with several immunity
defenses and also moves for dismissal for failure to state a claim. Because Plaintiff’s complaint
contains procedural defects that obscure what claims are in the complaint, the Court declines to
address most of Defendants’ immunity arguments at this time. However, Defendants’ motion is
GRANTED IN PART with respect to Plaintiff’s emotional distress claims.
I.
BACKGROUND
Plaintiff A.B. brings this action on behalf of her minor daughter, C.D. During the 2015-
2016 school year, C.D., then thirteen and in the eighth grade, was enrolled in Rossi Intermediate
School (the “School”), which is operated by the Vineland Board of Education (the “Vineland
Board”). (Compl. at ¶ 14.)
1
C.D.’s Interactions with Her Teacher, Richard Super
This case is about improper sexual contacts between a teacher and his thirteen-year-old
student. Richard Super, an adult man, had been one of C.D.’s teachers at the School for at least
two years. (Compl. at ¶ 55.) During the 2015-2016 school year, Super used his school-issued email
to transmit thousands of sexually explicit email messages to C.D. (Compl. at ¶ 56.) The
relationship between Super and C.D. was so conspicuous that other students were aware of it
during the 2015-2016 school year and often made comments about the relationship in the hallways
in class and to C.D. (Compl. at ¶ 63.) For instance, one asked C.D., about “the Super thing . . . if
you don’t wanna talk about it fine but is it getting better”? (Id. at ¶ 64.)
Many of C.D. and Super’s conversations are unsettling. For example,
[Super]:
[C.D.]:
C:
S:
No to what? I’m confused BabyMetal. And just the whole 7th period
thing.
Oh I mean like people are just saying shit. And I need someone to
talk to.
can I please listen to music
What are they saying now BabyMetal?
*
C:
S:
C:
C:
S:
C:
C:
*
*
Hey daddy slipknot we have to talk about things.
What’s up?
People are saying this about us daddy
They are a little bad but that’s what they think of us I guess
Oh geeze like what?
People think I do anything forceful with u. And that I skip class to
come see u alone in ur room. T sum it all up, people we’re . . . ya
know doing???? You deserve to know but that’s what people keep
saying I say to fuck off and leave out bc he’s innocent or I say ur a
bitch and that’s completely nasty and will never happen, but I hope
our relationship will end bc of this dad?!!!!!
I’m sorry dad but u NEED to know
(Compl. at ¶ 63.) Several exchanges were of a sexual nature. For example:
S:
BTW my cheek was very heartbroken this week. I got him all
excited and then he got shut down. (sad face)
2
C:
S:
C:
S:
Y was he all excited d
Cause someone was supposed to give him something and then it
never matured. I had to let him down easy.
Aww ill kiss u on Monday for sure . . . can I get one (pause)?
It’ll be when you least expect it (blushing face)
*
S:
C:
S:
C:
S:
C:
S:
C:
S:
C:
C:
S:
*
Thanks I try. I wrote BB under the SS on your paper. Know what
that means? And wont say unless you guess right. (blushing face)
(winky face)
I didn’t knotice but I don’t wanna guess bc ima get it rong so tell me
d
just one guess please!! (praying hands). Two words that start with B
and they have do with you.
Uhhhhhhh big baby, beautiful boy, big butt, big boobs, boring bitch,
idk lol
Lol wow some of them work but you actually got half of it right.
uhhhh baby? Butt? Boobs? Beautiful? . . . what?
Two of them are correct just add a word to one of and bam it’s it.
uhhhh boobs butt, beautiful baby, beautiful boobs, idk
Second one my B
Awww daddy thank u. . ur so sweet!! That was in my very high
pitched baby voice btw lol
*
S:
*
*
*
just took off my pants and shirt. Lol nah just chilling talking to you.
Sweating lol
YAY we’re naked buddies!! Watt r u doing having fun?
Loads and loads of fun! ! (smiley face)
(Compl. at ¶ 98.) Plaintiff’s complaint contains several other disconcerting exchanges. (Id.) These
messages were sent at virtually all times, through the late hours of the night and early hours of the
morning. (Id. at ¶¶ 70, 73.) On one Friday they exchanged 287 messages. (Id. at ¶ 73.)
This relationship was not limited to texting: C.D. would draw Super pictures and bring him
snacks and breakfast. (Id. at ¶¶ 68-69.) C.D. once kissed him on the cheek, and they exchanged a
pair of t-shirts as gifts at one point. (Id. at ¶ 67.)
3
The School’s Awareness
Plaintiff claims numerous individuals were aware of these interactions. She has sued the
Vineland Board of Education, which owns and operates the Rossi Intermediate School, as well as
that school’s superintendent, Dr. Mary Gruccio; principal, Tammy Monahan; and assistant
principal, Michael Sullivan. Defendants are alleged to have the authority and responsibility to
address discrimination and harassment in the school. They are also alleged to have had actual
knowledge of such harassment and to have failed to adequately respond to it. Specifically, Plaintiff
alleges that Defendants knew of Super’s tendency to (a) bring C.D. breakfast; (b) sit with C.D. at
lunch; (c) visit C.D.’s gym class; (d) step out of class to talk to C.D. in the hallway; (e) talk to C.D.
via email; and (f) give C.D. extra attention during class time. (Compl. at ¶ 41.) Plaintiff alleges
these activities violated the Vineland Board’s policies.
Plaintiff maintains that Defendants should have been aware of Super’s misconduct and
harassment of a middle-school girl because of its conspicuous nature, and that through their
inaction this was allowed to occur. For example, during a January 14, 2016 deposition, Dr. Gruccio
stated:
Q:
If a student is the subject or victim of sexual assault by a staff
member from a school do you agree that that student is being
deprived of the education to which he is entitled?
A [Gruccio]: Not necessarily, no.
(Compl. at ¶ 50; Gruccio Dep. 64:13-17.) It is further alleged—without specific textual support—
that Superintendent Dr. Gruccio had previously averred that a young male student could be a
“willing” participant in sexual activities with a staff member, thereby making a “choice” to
participate in sexual activity with a teacher. (Compl. at ¶ 52.)
Principal Monahan observed Super’s relationship with C.D. and spoke to an officer of the
Vineland Police Department (“VPD”) about it on June 2, 2016. (Id. at ¶ 103.) She noted that she
4
had called Super into her office on May 3, 2016 to speak to him about his meetings with C.D. on
two separate occasions during lunch. (Id.) She also told Super that the interactions were not
“normal” and that she instructed Super to cease interacting with C.D. (Id.) She stated to another
detective that she had a “hunch” and a “feeling” that something was awry. (Id. at ¶ 104.) Monahan
stated she had spoken to Super about this on two separate occasions. (Id. at ¶ 105.)
Other teachers noticed worrying behavior. One teacher in the school, Stephanie Coia, had
noticed that C.D. was not doing her work in class but was instead vigorously typing. (Id. at ¶ 109.)
Every time Coia or an assistant would try to see who C.D. was talking to, she would close the
computer. (Id.) Coia also noticed that Super had formerly spent his free period with the other
teachers, but that instead of doing so he spent it in the gymnasium weight room. (Id. at ¶ 112.) This
free period coincided with C.D.’s gym period. (Id.) Other teachers made the same observation.
(Id.) Coia also observed that C.D. always ate popcorn in class, and although C.D. stated it was her
mother who gave it to her, Coia later heard C.D. mention to another classmate that it was Super
who gave her the popcorn. (Id. at ¶ 113.)
C.D.’s math teacher, Natalie Quackenbush, also noted some irregularities. Super’s
classroom was adjacent to hers, and C.D. would always spend time with Super in the hallway
between classes. (Id. at ¶ 115.) Quackenbush had noticed that C.D. would ask to use the restroom
during class, apparently an excuse for her to step out to meet Super. (Id.) She once heard a student
exclaim one day that C.D. was chatting with Super over her computer during class. (Id.) After
asking C.D. and Super about this, they both denied the claim. (Id.) She, as well as Coia, observed
that Super had ceased eating lunch with the other teachers and had started to each lunch with C.D.
and the other students, where he sometimes sat with C.D. (Id.) She remembers having to tell C.D.
to get to class and stop talking to Super. (Id.)
5
An aide from Super’s classroom also noticed that C.D. and Super had a different handshake
than the ones he and other students exchanged. (Id. at ¶ 116.)
Things began to transition to crisis on May 29, 2017. At a parent-teacher meeting, A.B.,
C.D.’s mother, met with several teachers—Andrea Massaro, Natalie Quackenbush, Stephanie
Coia, and another—to discuss C.D.’s poor performance in school. (Id. at ¶ 106.) Towards the end
of the meeting the women asked Super to come into the room and asked why C.D. was doing
poorly in all her classes save his. A.B. and Coia later recalled that Super was nervous and would
not make eye contact. (Id.) It appears he lacked a good explanation and that this may have alarmed
him, as a few days later on a field trip, Coia observed that Super was walking around like a “lost
puppy” during an 8th grade class trip to Wildwood, New Jersey on June 2, 2016. (Id. at ¶ 110.)
She noted that Super was avoiding his colleagues, instead of his usual friendliness. (Id.)
Although not perfectly clear in the complaint, this eventually came to the attention of the
Cumberland County Prosecutor’s Office. Its investigation revealed criminal abuse: some 4,600
messages between C.D. and Super on the school email server during a two-month period. (Id. at
¶¶ 70, 73.) Prosecution commenced, and on May 18, 2017, Super pleaded guilty to a fourth-degree
charge of Cruelty and Neglect of a Child, pursuant to N.J. Stat. Ann. § 9:6-3.
The Vineland Board’s Policies and Procedures
The Vineland Board has policies prohibiting teachers from engaging in any communication
with students that is unrelated to school. This includes inappropriate comments, language, and
conduct of a sexual nature with students. (Compl. at ¶ 59.) Plaintiff also alleges that the Vineland
Board established policies that imposed an obligation on school administrators to monitor for
6
compliance with school policies. (Id. at ¶ 74.)1 All of the 4,600 communications between Super
and C.D. were made using the school’s email system and servers.
The Vineland Board used software, the Barracuda Message Archiver (the “Barracuda
program”), to monitor computer communications. (Compl. at ¶ 76.) The Barracuda program allows
administrators to sort through a message archive to compile relevant messages. (Id. at ¶ 79.) Users
can specify organizational policies in the program, including defining when it is acceptable to send
messages during certain times of day or containing inappropriate content or forbidden topics. (Id.
at ¶ 86.) The program comes with three default policy definitions, including Personal Email,
Personal Info, and Foul Language. (Id. at ¶¶ 91-95.) These may be modified or added to, and are
automatically updated regularly. (Id.) As a default setting, the Barracuda program reports on the
growth of the archive, policy violations, and archive traffic. (Id. at ¶ 81.) It was also capable of
providing traffic and policy statistics, such as the amount of overall email traffic and whether
messages have triggered a particular policy category. (Id. at ¶ 83.)
Plaintiff alleges that the Barracuda program allowed Defendants to create searches on
virtually every aspect of a message, including its body, recipients and senders, attachment types,
and date. (Id. at ¶ 90.) Plaintiff alleges that under the default policy definitions, C.D.’s
communications with Super would have resulted in a notification to all administrators of the
Barracuda network. (Id. at ¶ 96.)
Procedural History and Claims
Filed on November 10, 2017, Plaintiff’s lengthy, somewhat disjointed complaint brings a
claim (or claims, as we’ll see) nominally under Title IX, 20 U.S.C. § 1681(c) (Count I); a claim of
See also Compl. Ex. D. (“School district personnel will monitor networks and online activity to
maintain the integrity of the networks, ensure their proper use, and ensure compliance with Federal
and State laws that regulate Internet safety.”).
7
1
intentional infliction of emotional distress (“IIED”) (Count II); a claim of negligent infliction of
emotional distress (“NIED”) (Count III); a claim of respondeat superior premised on the
negligence of Richard Super (Count IV); a claim of negligent supervision and training (Count V);
a claim of sexual harassment brought under the New Jersey Law Against Discrimination
(“NJLAD”), N.J. Stat. Ann. § 10:5-12 et seq. (Count VI); and claims under 42 U.S.C. § 1983
(Counts VII and VIII). Defendant has since moved to dismiss the complaint.
II.
JURISDICTION
Plaintiff brings claims under Title IX and § 1983, placing this matter within the Court’s
federal-question jurisdiction pursuant to 28 U.S.C. § 1331. The related state-law claims are
properly before this Court under 28 U.S.C. § 1367.
III.
LEGAL STANDARDS
Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure
to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d. Cir. 2008)). In other words, a complaint
survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). It is not for courts to decide at this point whether the non-moving party will succeed on
the merits, but “whether they should be afforded an opportunity to offer evidence in support of
their claims.” In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir. 2002).
8
In making this determination, the Court analyzes each claim in three steps. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)). Second, the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (quoting Iqbal, 556 U.S. at 678). Finally, “when there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 679). A complaint cannot survive
a motion to dismiss where a court can only infer that a claim is merely possible rather than
plausible. Id.
Rule 12(b)(7)
Rule 12(b)(7) provides that an action may be dismissed due to the plaintiff’s failure to join
an indispensable party pursuant to Rule 19. Federal Rule of Civil Procedure 19, in turn, provides
the standard the Court must employ in determining whether a case may proceed without the joinder
of certain persons, and requires that the Court undertake a three-part analysis to evaluate the
indispensability of the absent parties. The Court must decide (1) whether it is necessary that the
absent party be joined; (2) whether it is possible for the absent necessary party to be joined; and
(3) if joinder of the absent party is not feasible, whether “in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the absent person being thus
regarded as indispensable.” Id.; see also Prader v. Science Dynamics Corp., No. 99–5303, 2000
U.S. Dist. LEXIS 18666, at *13 (D.N.J. Dec. 19 2000). “If the party is indispensable, the action
therefore cannot go forward.” Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399,
9
404 (3d Cir. 1993). The question of an absent person’s indispensability is a fact-specific issue that
“can only be determined in the context of the particular litigation.” Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U.S. 102, 118 (1968).
IV.
DISCUSSION
Defendants have asserted several defenses. First, they argue they are immune to Plaintiff’s
respondeat superior claim under the New Jersey Tort Claims Act (“TCA”), N.J. Stat. Ann. § 59:1-1
to 14-4. Second, Defendants argue they are immune to Plaintiff’s claims under the TCA’s
provisions barring claims against public entities for failure to adopt or enforce a law, N.J. Stat.
Ann. §§ 59:2-4 and 59:3-5. Third, they argue that Plaintiff has pleaded insufficient facts to
establish a permanent loss of a bodily function, as required by N.J. Stat. Ann. § 59:9-2. Fourth,
Defendants argue that Plaintiff has failed to allege facts sufficient to make out a claim of either
intentional or negligent infliction of emotional distress. Fifth, Defendants have also moved for
dismissal for failure to join a necessary party, Richard Super, pursuant to Fed. R. Civ. P. 19.
Plaintiff concedes the respondeat superior claim cannot proceed and has voluntarily
dismissed it. (Opp’n at 8.) The Court, on its own motion, also finds that Count I is procedurally
defective and must be dismissed without prejudice. With respect to Defendants’ other arguments,
the Court finds that Plaintiff has failed to state claims for emotional distress, that Super’s
interactions with C.D. establish a physical injury sufficient to withstand dismissal at the pleadings
stage, and that Super is not a necessary party under Fed. R. Civ. P. 19.
Count I of Plaintiff’s Complaint Does Not Satisfy Federal Rule of Civil Procedure
10(b)
Plaintiff’s lengthy, 201-paragraph complaint contains some defects that make it difficult to
discern the precise claims contained within it. Several counts of the complaint are discrete and
10
readily discernible, but Count I, at 117 paragraphs (exclusive of sub-paragraphs), defies easy
categorization.
Rule 10(b) is “designed to achieve clarity and simplicity in the pleadings.” Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1324 (3d ed. 2004) (citing Anderson
v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364 (11th Cir. 1996)). As Rule 10(b) makes
clear, “[i]f doing so would promote clarity, each claim founded on a separate transaction or
occurrence . . . must be stated in a separate count or defense.” Fed. R. Civ. P. 10(b). “The purpose
of the requirement of separate counts is to clarify the issues and simplify the trial.” Williamson v.
Columbia Gas & Elec. Corp., 186 F.2d 464, 469 (3d Cir. 1951); accord Bautista v. Los Angeles
County, 216 F.3d 837 (“[S]eparate counts permit pleadings to serve their intended purpose to frame
the issue and provide the basis for informed pretrial proceedings.”).
Courts may require repleading pursuant to Rule 10(b) when three circumstances are
present: “where multiple claims are asserted, where they arise out of separate transactions or
occurrences, and where separate statements will facilitate a clear presentation.” Bautista, 216 F.3d
at 840–41 (9th Cir. 2000) (citing 5A Wright Miller, supra, § 1324). And when a complaint is
brought against several distinct defendants, “separate statements with regard to each defendant are
particularly helpful in apprising the individual defendants of claims pertaining only to them.”
Wright & Miller, supra, § 1324.
Count I of Plaintiff’s complaint asserts multiple claims spread across 113 paragraphs and
numerous sub-paragraphs. It is styled “Violations Pursuant to 20 U.S.C.A. § 1681(c), Title IX,
Education Amendments of 1972.” The Court thus surmises that Plaintiff brings a claim pursuant
to 20 U.S.C. § 1681(c). Yet this specific provision merely defines “educational institution” in Title
IX of the Civil Rights Act—alas, a definition does not provide a cause of action any more than
11
does a dictionary. And while the Court could construe Count I as a Title IX sexual harassment
claim under 20 U.S.C. § 1681(a), this quickly becomes untenable. Peering 20 pages deeper into
Count I, Plaintiff alleges numerous failures on the part of Defendants. These are usually without
reference to specific statutory or regulatory authority, but when a legal authority is articulated, it
is often on divergent and diverse authorities under both state and federal law. This thus calls into
question whether this is solely a Title IX claim to begin with.
For example, Plaintiff alleges that under 34 C.F.R. § 106.8(a), Defendants were obliged,
and failed, to communicate to students and their parents the identity of a Title IX coordinator, and
indeed failed to even appoint or designate one at all. But also within Count I is an allegation that
Defendants failed to report acts of child abuse to New Jersey’s Child Protection and Permanency
Division, as required under N.J. Stat. Ann. § 9:6-8.10. Count I also contains allegations that the
Vineland Board violated several of its own policies and failed to supervise Richard Super, which
appears to implicate tort law and the relevant standard of care. In sum, Count I appears to draw on
at least three separate bodies of law—Title IX, New Jersey statutory law, and New Jersey’s
common law of torts—and thus at least three separate causes of action.
The Court also notes that Count I’s hundreds of paragraphs and sub-paragraphs involve
several defendants in several different transactions or occurrences. Count I sets forth a panoply of
events ranging from, inter alia, the Barracuda messaging system, an alleged failure to appoint a
Title IX coordinator, disturbing messages between Super and C.D., interviews with teachers who
are not parties to this suit, and the Vineland Board’s internal policies. While Plaintiff has presented
these facts in a narrative form, Count I does not present a coherent statement of the claims brought
against Defendants.
12
In short, there is no doubt that repleading “will facilitate a clear presentation.” Bautista,
216 F.3d at 841. As Judge Stengel has pithily remarked, “Federal Rule of Civil Procedure 10(b)
clearly states, ‘each claim founded on a separate transaction or occurrence . . . must be stated in a
separate count or defense.’ As such, there should be a heading labeled Count 1 followed by a
recitation of the elements of the claim and the facts which plausibly plead each element.” Rutt v.
City of Reading, PA, 2014 WL 988570, at *2 (E.D. Pa. Mar. 13, 2014) (emphasis added). Count I
does this in part, but ultimately fails to establish the elements of the claim (or claims) it purports
to bring and instead unspools the entire history of the case. While Count I certainly presents an
unflattering picture, the Federal Rules of Civil Procedure require more than an unpleasantly
evocative Rorschach test to put Defendants on notice as to the claims against them. The Court
finds that Plaintiff must replead to proceed with Count I’s claim (or claims), and that at this time
it is consequently premature to rule on whether Defendants are entitled to immunity for whatever
claims are within Count I.
Immunity to Pain and Suffering Awards under N.J. Stat. Ann. § 59:9-2(d)
Defendants argue they are immune to suit because Plaintiff has not established a permanent
loss of a bodily function within the meaning of the New Jersey Tort Claims Act (“TCA”). We
disagree.
The TCA provides that in a suit against a public entity or public employee, a plaintiff shall
not be awarded pain and suffering damages “resulting from any injury” except “in cases of
permanent loss of a bodily function, permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.00.” N.J.S.A. 59:9-2(d). Jablonowska v.
Suther, 195 N.J. 91, 116 (2008). It is undisputed that Defendants are public entities or public
employees within the meaning of the TCA.
13
Psychological injuries are not necessarily barred by the TCA. The New Jersey Supreme
Court has noted that with “present-day understanding of psychological injuries,” the “mind . . . is
as much a part of the body as the back, a leg, a hand, or a finger.” Id. at 116 (citing Collins v.
Union County Jail, 150 N.J. 407, 423 (1997)). As such, the TCA does not treat psychological
injuries differently from physical injuries “when those physical injuries arise in a context similar
to that which precipitated plaintiff’s injuries.” Id. (alterations omitted). Injuries including
post-traumatic stress disorder are therefore within the scope of the TCA when they arise in the
same context as a physical injury. See Collins, 150 N.J. at 413 (holding plaintiff’s claim of
permanent psychological injury in form of posttraumatic stress disorder resulting from being raped
by corrections officer may constitute a “permanent loss of a bodily function” even absent residual
physical injury); see also Frugis v. Bracigliano, 351 N.J. Super. 328, 798 A.2d 614, 629 (N.J.
Super. Ct. App. Div. 2002) (finding allegations of sexual abuse sufficient when accompanied by
permanent post-traumatic stress disorder), rev’d on other grounds, 177 N.J. 250 (2003); Joyce v.
City of Sea Isle City, No. CIV. 04-5345RBK, 2008 WL 906266, at *24 (D.N.J. Mar. 31, 2008)
(finding that report of medical expert that plaintiff suffering from post-traumatic stress disorder
and severe depression resulting from “traumatic experiences of racial discrimination and
inappropriate arrest” sufficed to surpass the threshold of § 59:9-2(d)).
The question before the Court is whether C.D. has pleaded injuries that are either purely
physical or are instead emotional injuries with some nexus to a physical injury. Defendants argue
that Plaintiff has not pleaded that she was contacted physically by either Defendants or Richard
Super. This is not entirely correct. The complaint presents texts from Super that unambiguously
solicit kisses from C.D., a minor. Digital solicitation of kisses from a minor is not physical, that
much is true—but Plaintiff has pleaded that C.D. once kissed Super on the cheek. (Compl., ¶ 67.)
14
In the normal course of events adult men do not ask 13-year-old girls for kisses. Nor does the law
presume 13-year-olds act upon their own volition in such settings, particularly when asked by an
adult to do so. Common decency and the law alike observe “a societal recognition that, because a
child lacks the capacity to give consent, sexual activity foisted upon that child by an . . . adult
raises the irrebuttable inference that the adult intended to harm that child.” Shelby Cas. Ins. Co. v.
H.T., 391 N.J. Super. 406, 416 (App. Div. 2007) (citing Aetna Life & Casualty Co. v. Barthelemy,
33 F.3d 189, 193 (3d Cir. 1994)). “This rationale gives recognition to laws that protect minors not
only from offenders but from themselves.” Id. That C.D. kissed Super, and not vice versa, is
therefore immaterial; either way, it was Super’s physical involvement that counted here. The
complaint contains alarming allegations of an inappropriate physical relationship between Super
and C.D. This suffices to establish the physical nexus necessary to proceed, at the motion to
dismiss stage, with whether Plaintiff’s psychological injuries are barred by the TCA.
Turning to those alleged psychological injuries, Plaintiff alleges she has suffered
“permanent emotional and physical injuries” including anxiety, depression, post-traumatic stress
disorder, embarrassment, and humiliation, for which she has and is likely to incur medical
expenses and psychological treatment. (Compl., ¶¶ 129, 196.) Given the facts of this case, this is
eminently plausible, both now and in the years to come. The Court finds that as a matter of law
Plaintiff has pleaded injuries sufficient to clear the physical injury bar set by the TCA.
Emotional Distress Claims
1. Intentional Infliction of Emotional Distress
To prove a claim for intentional infliction of emotional distress, Plaintiff must show: (1)
Defendants acted intentionally or recklessly; (2) the Defendants’ conduct was extreme and
outrageous; (3) the Defendants’ actions proximately caused Plaintiff’s emotional distress; and (4)
15
Plaintiff’s emotional distress was “so severe that no reasonable man could be expected to endure
it.” Buckley v. Trenton Sav. Fund Soc., 544 A.2d 857, 863 (N.J. 1988) (quoting Restatement
(Second) of Torts § 46 cmt. j (Am. Law Inst. 1965)). To be extreme and outrageous, a plaintiff
must show that the conduct is “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Id. (quoting Restatement (Second) of Torts, § 46 cmt. d (Am. Law Inst.
1965)). The severity of emotional distress is a question of law and fact, and the court must initially
determine whether, as a matter of law, such emotional distress can be found. Buckley, 544 A.2d at
864.
Plaintiff has alleged no facts indicating that Defendants—the Vineland Board, Dr. Gruccio,
Monahan, and Sullivan—engaged in conduct that could be characterized as extreme and
outrageous. The “elevated threshold” for finding outrageous conduct is only satisfied in extreme
cases under New Jersey law. Griffin v. Tops Appliance City, Inc., 766 A.2d 292, 296 (N.J. Super.
Ct. App. Div. 2001). This high level of outrageousness is not evident from the face of the
complaint. For example, in Lockhart v. Willingboro High School, a 17-year-old student alleged
she had been sexually assaulted by another student inside an empty classroom while school was in
session. 170 F. Supp. 3d 722, 727 (D.N.J. Mar. 31, 2015). With regard to a teacher and assistant
principal who had been sued by the victim for their failure to prevent this from happening, the
court found that there were no facts that could support an inference of “intentional and outrageous
conduct.” Id. at 738-39. For purposes of this claim, this case is not materially different; nothing in
the complaint indicates the Defendants recklessly allowed or intended for any of this to happen.
The Court finds that Plaintiff has failed to state a claim for intentional infliction of emotional
distress.
16
2. Negligent Infliction of Emotional Distress
New Jersey law recognizes two stand-alone theories of NIED. Jablonowska v. Suther, 195
N.J. 91, 104 (2008); Angle v. United States, No. CIV.A. 12-2495 JLL, 2012 WL 6708165, at *6
(D.N.J. Dec. 21, 2012) (“The Supreme Court of New Jersey has explained that there are two
general instances in which a plaintiff may maintain a claim for negligent infliction of emotional
distress.”). These are (1) the “zone of danger” theory, where the plaintiff is located within a zone
of risk created by the defendant’s negligent conduct, and (2) the “bystander” theory allowing
recovery for witnessing the death or serious injury of a close family member. Id. The “zone of
danger” theory is plainly a non-starter; as the United States Supreme Court explained in
Consolidated Rail Corp. v. Gottschall, 512 U.S. 532, 547–48 (1994), “the zone of danger test
limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of
a defendant’s negligent conduct, or who are placed in immediate risk of harm by that conduct.”
See also Barella v. New Jersey Transit Rail Operations, 2017 WL 85571, at *1 (N.J. Super. Ct.
App. Div. Jan. 5, 2017) (citing same). Plaintiff simply wasn’t within any conceivable zone of
danger. This theory cannot sustain her claim.
The second theory requires Plaintiff to prove (1) the death or serious physical injury of
another was caused by defendant’s negligence; (2) a marital or intimate familial relationship
existed between plaintiff and the injured person; (3) she had observed the death or injury of the
victim at the scene of the accident; and (4) she had suffered severe emotional distress. Portee v.
Jaffee, 84 N.J. 88, 101 (1980). Among other legally significant shortcomings, this case does not
involve the death or serious physical injury of a close relative. A Portee claim therefore cannot be
sustained either. See also Hayward v. Salem City Bd. of Educ., No. CV 14-5200 (JBS/AMD), 2016
WL 4744132, at *12 (D.N.J. Sept. 12, 2016) (“It is plain that Plaintiff cannot succeed on this
17
[NIED] claim, because she complains only of the search performed on her and her belongings, and
not her witnessing of a traumatic injury to another person.”).
Undeterred, Plaintiff takes a different tack: she argues this is a “direct” NIED claim, i.e.,
that Plaintiff was directly injured by Defendants and that this entitles her to damages. This,
however, is not a stand-alone tort claim, but rather a damages question that is parasitic on another
tort. If Plaintiff prevails on her other tort claims and can establish a proximately caused physical
injury, she may seek damages for emotional distress. See Abouzaid v. Mansard Gardens Assocs.,
LLC, 207 N.J. 67, 76 (2011) (discussing evolution of the two theories of stand-alone NIED claims
from the previous “physical impact” regime); Mauro v. Raymark Indus., Inc., 116 N.J. 126, 137
(1989) (noting that a plaintiff who sustained a physical injury can recover for emotional distress
without bringing a separate NIED claim). An NIED claim is not a separate cause of action save
for the two theories outlined above. As such, we find that Plaintiff has failed to state a claim for
the negligent infliction of emotional distress.
Failure to Join a Necessary Party
Defendants argue that Plaintiff has failed to join Richard Super to this action. They contend
that he is a necessary party and that his omission mandates dismissal. We disagree.
“It has long been the rule that it is not necessary for all joint tortfeasors to be named as
defendants in a single lawsuit.” Temple v. Synthes Corp., 498 U.S. 5, 7 (1990); see also Huber v.
Taylor, 532 F.3d 237, 249–50 (3d Cir. 2008) (finding same, and noting “an Advisory Committee
Note to Rule 19(a) explicitly states that subdivision (a) of the rule ‘is not at variance with the
settled authorities holding that a tortfeasor with the usual ‘joint-and-several’ liability is merely a
permissive party to an action against another with like liability’”). This is a question of federal law
solely within the scope of Fed. R. Civ. P. 19. See Provident Tradesmens Bank, 390 U.S. at 125
18
(“in a diversity case the question of joinder is one of federal law”); see also Wright & Miller,
supra, § 1603.
Defendants’ briefing, a recital of policy considerations and caselaw from the 19th century,
does not present much reason to deviate from this rule. Defendants’ primary contention is that the
TCA’s rules for comparative fault require Super to be joined to this action as a joint tortfeasor.
“[I]n any case where a public entity or public employee acting with the scope of his employment
is determined to be a tortfeasor in any cause of action along with one or more other tortfeasors, the
public entity or public employee shall be liable for no more than that percentage share of the
damages which is equal to the percentage of negligence attributable to that public entity or public
employee . . .” N.J. Stat. Ann. § 59:9-3.1 (emphasis added). See also Frugis, 177 N.J. at 276
(discussing history and statutory construction of the TCA). Defendants note that Super was
criminally convicted for his actions and would therefore be exposed to civil liability if he were a
party. As such, Defendants argue any negligence or intentionally tortious activity attributable to
Super would be considered in any action against Defendants, as his fault will be implicated by
proceedings.2
Whether § 59:9-3.1 itself requires another tortfeasor to be joined appears to be a novel
question, but courts that have considered the effect of similar statutes have concluded they do not
in the absence of specific provisions to the contrary. In Selchert v. State of Iowa, 420 N.W.2d 816,
821 (Iowa 1988), for example, the court was “not persuaded” that the enactment of a comparative
fault statute “effectively repealed the rules of civil procedure permitting, but not requiring, joinder
of claims and parties at the plaintiff’s discretion.” See also Pippert v. Gundersen Clinic, Ltd., 300
Defendants also argue that Richard Super’s homeowners insurance may cover his liability with
respect to his attempting to seduce a 13-year-old girl. (Reply at 13.) This seems unlikely and not
altogether relevant to whether Super is a necessary party.
19
2
F. Supp. 2d 870, 880 (N.D. Iowa 2004) (citing same). We find nothing to indicate that the New
Jersey legislature intended a comparative default scheme of apportionment to require joinder of
any party potentially affected. But even if it did, this is a question not of state substantive law but
of federal procedure, which is, of course, effectively unrepealable by the action of New Jersey law.
Cf. Wright & Miller, supra, § 1623 (“Under the substantive law of many states, one tortfeasor has
no right to compel the joinder of other tortfeasors who were not sued by plaintiff in the original
action. The federal courts will not alter this practice by requiring joinder under Rule 19, even
though that might be both desirable and feasible.”).
In short, the TCA does not mandate joinder of another potential tortfeasor in federal court.
See VFS US LLC v. Vaczilla Trucking, LLC, No. CV 15-02226, 2015 WL 7281619, at *15 (E.D.
La. Nov. 16, 2015) (noting in dicta that the issue of comparative fault would only make a party a
“permissive co-defendant,” pursuant to Temple, 498 U.S. at 6). The Court finds that Plaintiff is
still “the master of the complaint” and that Richard Super is not a necessary party. Holmes Grp.,
Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
V.
CONCLUSION
For the reasons stated above, Defendants’ motion is GRANTED IN PART and DENIED
IN PART. An order follows.
Dated: June 27, 2018
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?