DOE 3 v. GLOUCESTER COUNTY INSTITUTE OF TECHNOLOGY et al

Filing 69

OPINION. Signed by Judge Robert B. Kugler on 5/21/2019. (tf, )

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Jane DOE 3,
Plaintiff,
v.
THE BOARD OF EDUCATION OF THE
VOCATIONAL-TECHNICAL SCHOOL
DISTRICT IN THE COUNTY OF
GLOUCESTER; GLOUCESTER COUNTY
INSTITUTE OF TECHNOLOGY and Adam
MAYR
Defendants.

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Civil No. 17-13793 (RBK/JS)
OPINION

KUGLER, United States District Judge:
THIS MATTER comes before the Court upon the motion for partial summary judgment of
Gloucester County Institute of Technology (“GCIT”) and the Board of Education of the
Vocational Technical School District in The County of Gloucester (“the Board”) (collectively
“Defendants”) seeking to dismiss Count Four of Plaintiff’s Amended Complaint for failure to
provide Notice of Tort Claim pursuant to N.J.S.A. 59:1–1, et seq. (Doc. No. 37.) Count Four
claims that GCIT and the Board acted negligently in hiring and supervising Adam Mayr in his
role as teacher at GCIT. Further, the Complaint alleges that Mayr sexually harassed students,
including Plaintiff Jane Doe 3, over a period of several years before being arrested on March 13,
2015. Plaintiff opposes this motion for summary judgment and, alternatively, seeks leave to file
a late notice of the Count Four negligence claim pursuant to N.J.S.A. 59:8–9. (Doc. No. 43).

For the reasons set forth below, GCIT and the Board’s motion for partial summary
judgment (Doc. No. 37) is GRANTED as to Count Four, and Plaintiff’s cross motion to file a
late claim (Doc. No. 43) is DENIED.
I.

BACKGROUND
The facts of this case have been previously discussed by the Court in its July 2, 2018

Opinion. See Doe 3 v. Board of Education of Vocational-Technical School District in County of
Gloucester, 2018 WL 3218692 (D.N.J. July 2, 2018).
To briefly review, this case is about a teacher that used a hidden camera to film sexually
explicit videos of his high school students at Gloucester County Institute of Technology
(“GCIT”). Amended Complaint (“Compl.”) [Doc. No. 3] at 3. GCIT is a technical high school
that receives federal funding and is overseen by a Board of Education (“the Board”). Id. at 2.
The Board oversees the school’s hiring practices and supervision policies. Id.
In 2002, GCIT hired Adam Mayr as a teacher and coach. Id. He was employed and
supervised by GCIT and the Board from 2002 through March 13, 2015, when he was arrested
and charged with numerous crimes for videotaping and photographing female students without
their knowledge. Id. at 2–3. Mayr’s conduct allegedly went beyond hidden videos and rose to
the level of overt harassment. Such harassment included the touching of female students,
degrading them verbally, and suggesting that females would receive preferential treatment if they
acquiesced to his harassment. Id. at 4–5. Each of the instances occurred on GCIT’s campus. Id.
Mayr not only conducted himself without reprimand from the Board, but he used GCIT’s
computers, computer networks, and equipment to use and store his sexually explicit videos. Id.

Plaintiff Jane Doe 3 filed the instant lawsuit against Defendants on January 12, 2018.
Plaintiff alleges, among other things, that GCIT and the Board engaged in reckless, intentional,
and negligent conduct (Count Four). Id. Defendants responded by answer and filed a motion to
dismiss on February 27, 2018. Def. Motion to Dismiss (Doc. No. 7). The answer asserted
various defenses, including Plaintiff’s failure to satisfy the notice requirement of the New Jersey
Tort Claims Act. Defs. Answer [Doc. No. 8] at 11. The Court granted Defendants’ motion in
part and dismissed claims of intentional and reckless misconduct. See Doe 3, 2018 WL
3218692. The Court, however, permitted Count Four to survive on a theory of negligent hiring
and supervision. Id. The Court also permitted Plaintiff leave to amend the Complaint, “find[ing]
that Plaintiff may be able to cure the pleading deficiencies identified . . .” Id. at *4. The Court
further explained, “The Torts Claims Act (“TCA”) governs tort claims against public entities of
the State of New Jersey.” Id. at *5.
GCIT and the Board now motion for partial summary judgment against Count Four,
Plaintiff’s remaining negligence claim. Defs.’ Motion for Partial Summary Judgment (“Defs.’
Motion”) [Doc. No. 37]. Specifically, Defendants argue, as they asserted in their Answer, that
Plaintiff has failed to timely serve a notice of claim pursuant to the New Jersey Tort Claims Act
(“TCA”). Id. at 4 (citing N.J.S.A. 59:8–3). Because Jane Doe 3, Mayr’s student between 2008
and 2015, was a minor at the time of the alleged misconduct, Plaintiff had ninety (90) days after
reaching the age of majority, or until September 17, 2018, to file a notice of claim pursuant to the
TCA. Id. (citing N.J.S.A. 59:8:8, et seq.) Defendants argue that Plaintiff failed to file the
required claim and is therefore barred from bringing the Count Four negligence claims against
GCIT and the Board. Defs.’ Motion at 1.

Plaintiff makes four arguments in opposition to Defendants’ motion. See Plaintiff’s Brief
in Opposition (“Pl.’s Opp. Br.”) [Doc. No. 42]. First, Plaintiff’s counsel claims that he issued
notice. Id. Specifically, he submitted a March 2015 letter from GCIT’s principle James H.
Dundee, Jr. to GCIT Superintendent Michael C. Dicken. This letter detailed Mayr’s misconduct
toward “Student #1.” Id. at Ex. B. Plaintiff’s counsel also submitted his November 2017 letter
to Defense counsel. This letter indicated that Plaintiff’s counsel jointly represented Jane Doe 3
with another firm. Id. at Ex. C. Second, Plaintiff’s counsel argues that he “substantially
complied” with the TCA notice requirement because “the record, as a whole, shows that the
letter and the spirit of the TCA notice requirements were met in this case.” Id. at 7. For
example, in addition to the above letters, he submitted TCA notices from two other Jane Doe
plaintiffs. Id. at Ex. I. Plaintiff’s counsel also contends he engaged in pre-suit negotiations. Pl.
Opp. Br. at 7. Third, Plaintiff argues that Defendants are estopped from challenging TCA notice
because “GCIT was in possession of all the information specified in N.J.S.A. 59:8–4.” Id. at 8.
For example, GCIT ran an investigation into Mayr, a County Prosecutor’s Office initiated an
investigation, various other victims came forward, and Mayr pled guilty. Id. at 1. Fourth,
Plaintiff argues, if this Court finds notice was not provided, we should grant leave to file a late
notice under the TCA.
The Court must therefore consider Plaintiff’s arguments in light of the record and
relevant precedent.
II.

LEGAL STANDARD
1. Summary Judgment
Summary judgment is appropriate where the Court is satisfied that “there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weighs the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The moving party bears the burden of establishing that no genuine issue of material fact
remains. See Celotex, 477 U.S. at 322–23. A fact is material only if it will affect the outcome of
a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is
such that a reasonable fact finder could return a verdict for the nonmoving party. See Anderson,
477 U.S. at 252. Even if the facts are undisputed, a disagreement over what inferences may be
drawn from the facts precludes a grant of summary judgment. Ideal Dairy Farms, Inc. v. John
Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996). Further, “any unexplained gaps in materials
submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion
for summary judgment.” Id. (quoting Ingersoll–Rand Financial Corp. v. Anderson, 921 F.2d
497, 502 (3d Cir. 1990)) (internal quotations and alterations omitted).
The nonmoving party must present “more than a scintilla of evidence showing that there
is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The court’s role in deciding the merits of a summary judgment motion is to determine whether
there is a genuine issue for trial, not to determine the credibility of the evidence or the truth of
the matter. Anderson, 477 U.S. at 249.
2. The New Jersey Tort Claims Act
The New Jersey Tort Claims Act (“TCA”) provides for limited circumstances under
which a plaintiff may bring a tort claim against public entities and public employees. See

N.J.S.A. 59:1–1 et seq. Under the TCA, parties bringing suit against a public entity “must
comply with strict requirements for notifying and suing [the] entities.” Feinberg v. State, DEP,
137 N.J. 126, 134 (1994.)
Before filing a complaint, a plaintiff must submit a notice of claim to the public entity
within ninety days of the claim’s accrual and must file suit within two years after the claim’s
accrual. N.J.S.A. 59:8–8(a–b). If a plaintiff fails to file notice of his claim with the public entity
within ninety days, the plaintiff may, at the court’s discretion, be permitted to file notice at any
time within one year after the claim’s accrual so long as the delay has not substantially
prejudiced the public entity or public employee. N.J.S.A. 59:8–9.
Under N.J.S.A. 59:8–4, a notice must contain the following:
(a) The name and post office address of the claimant;
(b) The post-office address to which the person presenting the claim desires notices to be
sent;
(c) The date, place and other circumstances of the occurrence or transaction which gave rise
to the claim asserted;
(d) A general description of the injury, damage or loss incurred so far as it may be known at
the time of presentation of the claim;
(e) The name or names or the public entity, employee or employees causing the injury,
damage or loss, if known; and
(f) The amount claimed as of the date of presentation of the claim, including the estimated
amount of any prospective injury damage, or loss, insofar as it may be known at the time
of the presentation of the claim, together with the basis of computation of the amount
claimed.

N.J.S.A. 59:8–4; see Johnson v. Does, 950 F. Supp. 632, 634 (D.N.J. 1997). Failure to timely
provide a claim to the public entity may result in a claimant’s claim being forever barred.
Specifically, N.J.S.A. 59:8–8 states:
A claim relating to a cause of action for death or for injury or damage to person or
to property shall be presented as provided in this chapter not later than the
ninetieth day after accrual of the cause of action. After the expiration of six
months from the date notice of claim is received, the claimant may file suit in an
appropriate court of law. The claimant shall be forever barred from recovering
against a public entity or public employee if:
(a) He failed to file his claim with the public entity within 90 days of accrual of his claim . . .
N.J.S.A. 59:8–8 (1994).
Notice to the public entity is a necessary condition precedent to file a complaint against
the public entity. See Beauchamp v. Amedio, 751 A.2d 1047, 1053 (N.J. 2000). These specific
notice requirements are meant to achieve several goals. They allow the public entity time to
review the claim and to promptly investigate the facts and prepare a defense while the incident is
fresh; provide the entity with an opportunity to settle meritorious claims before a lawsuit is filed;
afford them an opportunity to correct the conditions which gave rise to the claim; and “inform
the State in advance as to the indebtedness or liability that it may be expected to meet.” Velez v.
City of Jersey City, 850 A.2d 1238, 1242 (N.J. 2004) (quoting Beauchamp, 751 A.2d at 1053).
III.

DISCUSSION
There is no dispute here that the moving Defendants are qualifying entities under the

TCA. As such, the Court must first consider whether Plaintiff has formally complied with the
notice requirement. If not, the Court will then determine if Plaintiff substantially complied. If

Plaintiff fails again to show substantial compliance, the Court will consider the rare exception of
equitable estoppel. Finally, and relatedly, the Court will evaluate Plaintiff’s motion for leave to
file a late notice.
A. Whether Plaintiff provided TCA Notice
Plaintiff claims that the attached documents to the brief satisfy the requirements under
N.J.S.A. 59:8–4. The Court carefully considers the attached documents below and concludes
that none of them satisfy the requirements for notice under the TCA.
First, the Court considers Principle Dundee’s March 19, 2015 letter to Superintendent
Dicken. Pl.’s Opp. Br. at Ex. B. Plaintiff argues that Principal Dundee’s confidential internal
report of March 19, 2015 provided adequate notice because it included details of “Student #1’s”
allegations against Mayr.
The Court finds that Principle Dundee’s report does not satisfy TCA notice. First, the
report is submitted by a third party who does not indicate he is acting on behalf of the Plaintiff
for a TCA claim. See N.J.S.A. 59:8–4 (explaining the Notice must be “presented by the claimant
or by a person acting on his behalf”). Second, the Court finds the contents of the letter woefully
short of the information required by the statute. Most obviously, the March 2015 letter does not
identify the Plaintiff, include any of Plaintiff’s legal claims against GCIT, or provide any
indication of Plaintiff’s damages. Instead, it appears to be little more than a third-party
investigation report, which details general findings and impressions of purported misconduct.
Even if the Court found such a letter included the information within N.J.S.A. 59:8–4, which it
does not, New Jersey courts generally reject third-party reports from standing in as writings
under this provision. See Daniels v. Pemberton Township Water Department, No. A-4440-11T4,

2013 WL 1316022, at *3 (N.J. Super. Ct. App. Div. Apr. 3, 2013) (rejecting a police report as
sufficient TCA notice); See also Barbieri v. Mayer, No. A-0362-14T1, 2015 WL 9263849, at *3
(N.J. Super. Ct. App. Div. Dec. 21, 2015) (rejecting an insurance adjuster’s report, and
explaining the “awareness of that event alone does not fulfill the many other objectives of the
TCA’s notice provision”). The Court therefore rejects Plaintiff’s argument that this letter
satisfies the TCA notice requirement.
Second, the Court considers the TCA notices submitted by other students, namely Jane
Doe 1 and 2. Pl.’s Opp. Br. at Ex. C. The notices allege that GCIT teacher Adam Mayer
endangered the welfare and invaded the privacy of Jane Doe 1 and Jane Doe 2. Specifically,
Mayer “secretly and inappropriately videotaped” them, and these students subsequently suffered
psychological and emotional injuries. Id.
The Court finds that Jane Doe 1 and Jane Doe 2’s notices do not satisfy TCA notice for
Plaintiff Jane Doe 3. Most obviously, these attached notices do not mention Jane Doe 3, nor do
they provide any of the other information required of this Plaintiff under the TCA. Further, this
Court rejects Plaintiff’s bootstrapping argument because it undercuts the TCA’s clear policy of
permitting a public entity time to review an individual’s claims for settlement or to prepare a
defense. See Beauchamp, 751 A.2d at 1053. In other words, the notices of Jane Doe 1 and Jane
Doe 2 do not allow GCIT to consider whether to settle or defend a distinct claim brought by Jane
Doe 3. The Court therefore rejects Plaintiff’s argument that the notices of Jane Doe 1 and Jane
Doe 2 satisfy the TCA notice requirement.
Third, the Court considers Plaintiff counsel’s December 11, 2017 letter to Defense
counsel. Pl.’s Opp. Br. at Ex. E. This letter, written by lead counsel for Plaintiff, states, “Please
allow this letter to confirm that my firm and Mr. McKenna’s firm, are jointly representing the

minor, ‘Jane Doe’. . . with regard to an incident that occurred at the Gloucester County Institute
of Technology.” Id. (emphasis added).
This Court again finds that the attached December 11, 2017 letter does not satisfy the
TCA notice requirement for Jane Doe 3. Again, the letter does not provide most of the required
information under the statute. For example, the letter does not describe the “incident” or any
injury, nor does it state whether Plaintiff is bringing a claim. Plaintiff also attaches email
exchanges with defense counsel, which similarly fail to cure the deficiencies of the December
11, 2017 letter. Pl.’s Opp. Br. at Ex. F–H. These emails only appear to show that Plaintiff’s
counsel circulated, or attempted to circulate, a version of the complaint just weeks before filing
the instant lawsuit before this Court on December 29, 2017. In addition, even if the Court found
that one of these writings satisfies 59:8–4, which it does not, none of the documents appear to
comply with 59:8–8, which requires Plaintiff to wait six months from providing notice before
filing suit. The Court therefore rejects Plaintiff’s argument that the December 11, 2017 letter
satisfies the TCA notice requirement.
B. Whether Plaintiff substantially complied with TCA Notice?
Plaintiff next argues that Defendants “had all the information needed to satisfy most, if
not all, of the elements required under N.J.S.A. 59:8–4 as of March 2015.” Pl.’s Opp. Br. 10. In
addition, Plaintiff argues that the December 11, 2017 letter confirmed the identity of the Plaintiff
as “Student #1.” Id. The Court therefore considers whether Plaintiff substantially complied with
the TCA.
The equitable doctrine of substantial compliance prevents the barring of legitimate claims
due to technical defects. Lebron v. Sanchez, 970 A.2d 399, 406 (N.J. Super. Ct. App. Div.

2009); Henderson v. Herman, 862 A.2d 1217, 1225 (N.J. Super. Ct. App. Div. 2004). The
doctrine provides that technical notice defects will not defeat a valid claim as long as the notice
that is given “substantially satisfies the purposes for which notices of claims are required.”
Lebron, 970 A.2d at 405–06 (quoting Lameiro v. West New York Board of Education, 347 A.2d
377, 379 (N.J. Super. Ct. Law Div. 1975)); see also Johnson, 950 F. Supp. at 635 (D.N.J. 1997).
“Although the doctrine of substantial compliance has occasionally been applied in the tort claims
context, it has been limited carefully to those situations in which the notice, although both timely
and in writing, had technical deficiencies that did not deprive the public entity of the effective
notice contemplated by the statute.” D.D. v. University of Medicine & Dentistry of New Jersey,
61 A.3d 906, 923 (N.J. 2013) (emphasis added).
To demonstrate substantial compliance with the notice-of-claim requirement, a plaintiff
must demonstrate: “(1) the lack of prejudice to the defending party; (2) a series of steps taken to
comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a
reasonable notice of petitioner’s claim; and (5) a reasonable explanation why there was not strict
compliance with the statute.” Lebron, 970 A.2d at 406 (quoting Ferreira v. Rancocas
Orthopedic Association, 836 A.2d 779, 783 (N.J. 2003)).
Here, the Court finds that neither the March 2015 letter nor the December 2017 letter
substantially complies with the TCA notice requirement. As explained above, supra IIIA, both
writings fall far beneath the statutory requirement. The March 2015 letter was written by a thirdparty, not acting on behalf of Plaintiff, and it fails to identify the Plaintiff. This letter is also
missing any reference to Jane Doe 3’s claim or injury. In addition, the December 2017 letter
should be precluded from an inquiry into substantial compliance since it is not timely under
59:8–8. See also D.D., 61 A.3d at 923 (explaining that the Court’s application of the doctrine of

substantial compliance has been limited carefully to those situations in which notice is both
timely and in writing). Even still, the December 2017 letter appears attenuated from the March
2015 letter and similarly lacks even the barest of relevant information. See Macklin v. County of
Camden, No. 15-7641, 2016 WL 3545520, at *3 (D.N.J. June 28, 2016) (finding no substantial
compliance because the document did not “give a sufficiently detailed account of the ‘who, what,
when, and where’ of the incident upon which [the Plaintiff’s TCA] claim is based”).
This Court further rejects the argument that Plaintiff substantially complied in oral
discussions with Defendants. As the New Jersey Appellate Division has recently stated, “[o]ral
notice, even where it contains the elements required by N.J.S.A. 59:8–4, does not constitute
substantial compliance.” Velez, 850 A.2d at 238; accord Anske v. Borough of Palisades Park,
354 A.2d 87, 90 (N.J. Super. Ct. App. Div. 1976) (“We consider a writing to be essential under
the statute.”).
Finally, while the Court does not need to consider other factors since Plaintiff failed to
produce a timely writing, Plaintiff’s reasoning for not complying is patently unreasonable.
Plaintiff’s counsel admits that he ignored the statutory requirement because Defendants
had “most, if not all, of the required information as of March 2015, when Plaintiff, ‘Student #1’,
informed GCIT of its teachers [sic] disturbing conduct that led to his arrest.” Pl.’s Opp. Br. 7.
Plaintiff highlights the general atmosphere underpinning the misconduct of Mayr: GCIT ran an
investigation, multiple victims came forward, and the misconduct garnered mass publicity. Pl.
Br. 8. Plaintiff believed that “any ‘form’ notice would be superfluous.” Pl.’s Reply at 1
(emphasis added). Plaintiff therefore chose not to comply with the rule.

Plaintiff counsel’s explanation for his failure makes little sense to the Court. In one
breath he suggests GCIT must have known of Jane Doe 3’s claim because of the general
publicity surrounding Mayr’s conduct. In the next breath, he inexplicably admits that he
submitted proper notices for both Jane Doe 1 and Jane Doe 2. The Court is perplexed as to why
he believed notice here to be “superfluous” but filed notices there. See also Baldeo v. City of
Paterson, No. 18-5359, 2019 WL 277600, at *8 (D.N.J. Jan. 18, 2019) (explaining counsel
“presumably was aware of the notice requirement, having previously filed notices of claim on
various occasions,” including this lawsuit). The argument, even viewed most favorably to
Plaintiff, does little to show substantial compliance. The Court therefore finds that Plaintiff has
not substantially complied with the TCA notice requirement.
C. Whether Defendants are equitably estopped from claiming inadequate notice
The Court next considers whether Defendants are equitably estopped from asserting a
TCA notice defense. Plaintiff argues that GCIT had not properly raised the issue of noncompliance with the TCA’s notice provisions, and its delay in bringing the present motion
should preclude it. Defendants, however, argue that an estoppel argument is misplaced since it
affirmatively raised TCA notice defenses in the Answer.
Equitable estoppel “is conduct, either express or implied, which reasonably misleads
another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the
law.” Dambro v. Union County Park Commission, 327 A.2d 466, 470 (N.J. Super. Ct. Law Div.
1974). The doctrine is “rarely invoked against a governmental entity . . . . Nonetheless,
equitable considerations are relevant to assessing governmental conduct, and may be invoked to
prevent manifest injustice.” County of Morris v. Fauver, 707 A.2d 958, 969 (N.J. 1998) (quoting
O’Malley v. Department of Energy, 537 A.2d 647, 650–51 (N.J. 1987)). In rare cases, courts

have invoked equitable estoppel to relax the requirements of the TCA when the defendant has
misled the plaintiff about a material issue. See, e.g., Hill v. Board of Education of the Township
of Middletown, 443 A.2d 225, 228 (N.J. Super. Ct. App. Div. 1982). Courts that have applied
equitable estoppel principles to dismiss a claim based on failure to file a notice of claim have
analyzed a few factors, including: whether a defendant has ever asserted the defense prior to the
motion, the amount of time that a defendant waited to file the motion, and whether a defendant
has engaged in discovery and depositions such that a court could reasonably conclude that the
notice-of-claim-defense has been waived. See Marley v. Borough of Palmyra, 473 A.2d 554,
569 (N.J. Super. Ct. Law Div. 1983).
First, Defendants correctly argue that Plaintiff’s claim for equitable estoppel is weakened
by the undisputed fact that Defendants affirmatively pled TCA notice deficiencies in the Answer.
Plaintiff counters this point and states that Defendants purposely “bur[ied] the notice issue as a
vague Affirmative Defense No. 27 on page eleven (11) of the Answer, without any further action
. . .” Pl. Opp. Br. at 16. GCIT “was [therefore] required to immediately advise Plaintiff of any
deficiencies or be estopped from claiming lack of notice.” Pl. Opp. Br. 13.
Plaintiff’s argument is both incorrect and seemingly absurd. Most obviously, the defense
is clear and properly asserted. Unlike the TCA defense asserted in Hill, which claimed a general
defense under the Act, the Defendants here cited specific provisions within the New Jersey Tort
Claims Act. Hill, 443 A.2d at 228. Defendants asserted TCA defenses in at least four
paragraphs of the Answer. Most damaging to Plaintiff’s argument, Affirmative Defense 27
states,
Plaintiff has failed to satisfy the requirements of NJSA 59: 8–8, relative to
providing Defendants with proper notice under the New Jersey Tort Claims Act,

and as to not pursuing suit for the specified time after providing such notice, and,
as such, are not permitted to pursue suit for damages under that Act at present,
and, therefore, are subject to potential dismissal of the suit upon further motion
relative to continued failure to provide notice as referenced above.
Doc. No. 8. This paragraph clearly indicates that Plaintiff has not complied with TCA
notice requirements, and the Court finds that it comports with New Jersey’s pleading
standards. See R. 4:5–4 (2019) (stating a responsive pleading “shall set forth specifically
and separately a statement of facts constituting an . . . . affirmative defense”). Relatedly,
Plaintiff’s argument that the defense is waived because it appeared on page eleven of the
pleadings is meritless. Frankly, trained lawyers have a duty to carefully read the
pleadings. See Fed. R. Civ. P. 11. And to offer an even more frank analogy, Plaintiff
should not consider any findings on this later page of the Opinion to be more or less valid
than those made earlier.
Plaintiff then argues that Defendants waived these defenses through future discussions.
Specifically, Plaintiff argues that its pre-suit negotiations with Defendants as well as the ongoing
Rule 26 disclosures preclude Defendants from relying on its earlier TCA defense. In addition,
Plaintiff appears to suggest that Defendants should have again asserted a notice challenge.
Plaintiff’s waiver argument is unconvincing. Most obviously, Plaintiff does not reconcile
the fact that Defendants raised TCA notice deficiencies in the Answer. For example, while
Plaintiff does cite older cases like Anske and Hill, Plaintiff has not produced a single case where
a New Jersey court applied equitable estoppel when a defendant properly raised the deficiency in
the answer. Further, the New Jersey Appellate Division recently pushed back on a similar

plaintiff who attempted to parrot general waiver arguments in Barbieri v. Mayer. There, the
Court explained,
The counter-examples cited by plaintiff of Anske v. Borough of Palisades Park,
139 N.J. Super. 342, 354 A.2d 87 (App. Div. 1976), and Hill v. Middletown Bd. of
Educ., 183 N.J. Super. 36, 443 A.2d 225 (App. Div.), certif. denied, 91 N.J. 233,
450 A.2d 556 (1982), in which equitable estoppel was applied to excuse late tort
claims notices, are not dispositive. Those cases preceded the 1994 statutory
amendment that tightened the TCA’s notice requirements and curtailed the
exception in N.J.S.A. 59:8–9. If anything, the [New Jersey] Supreme Court’s
more recent opinions . . . signals a strong judicial reluctance to bypass the
statute’s notice requirements.
Barbieri, 2015 WL 9263849, at *3 (citations omitted).
Finally, Plaintiff argues that Defendants’ procedural “gamesmanship” warrants estoppel.
Plaintiff argues that Defendants purposefully ignored these challenges eleven months earlier in
their motion to dismiss. Thus, Plaintiff argues that Defendants induced reliance simply because
Defendants could have filed this challenge much sooner.
Plaintiff’s “when to file” argument is exceptionally weak. Again, even if Plaintiff could
prove the delay was purposeful, New Jersey courts have found that proper filings, even though
delayed, are not per se grounds for equitable estoppel. See id. at *4 (“Although we disapprove
of the lackadaisical manner in which the defense in this case held off on filing its meritorious
dispositive motion, we are unpersuaded that the Supreme Court or the Legislature would want
the statute’s mandatory notice provisions brushed aside in these circumstances.”). See also D.D.,

61 A.3d at 922 (declining to “permit wide latitude to claimants and [their] counsel to circumvent
the statute's clear commands”). Further, Defendants’ decision to wait several months should not
have misled or induced Plaintiff to think it waived any defense. In fact, at least one other New
Jersey court permitted a defendant to file a motion for summary judgment two years after it
asserted a TCA notice defense. See Hardy v. Wright-Johnson, No. A-2797-12T3, 2014 WL
1375562, at *1 (N.J. Super. Ct. App. Div. Apr. 9, 2014) (rejecting Plaintiff’s estoppel argument
where Defendant moved to dismiss two years after asserting as TCA notice defense). As such,
this Court will not restrict Defendants from asserting a defense simply because it could have
filed it earlier.
D. Whether Plaintiff is permitted to file a late Notice
The exception in N.J.S.A. 59:8–9 provides that a claimant “may, in the discretion of a
judge . . . be permitted to file such notice at any time within one year after the accrual of [the]
claim . . . .” Id. The statute further indicates that “permission to file a late notice of claim shall
be made upon motion supported by affidavits based upon personal knowledge of the affiant
showing sufficient reasons constituting extraordinary circumstances for his failure to file notice
of the claim within the period of time prescribed” by the statute. Id. (emphasis added). Thus, in
order to file a late notice of a claim, Plaintiff must demonstrate “(1) extraordinary circumstances
for the failure to file a notice of claim within the ninety-day period . . . and (2) proof that ‘the
public entity . . . has not been substantially prejudiced’ by the late proposed notice of claim.”
Blank v. City of Elizabeth, 723 A.2d 75, 82 (N.J. Super. Ct. App. Div. 1999) (quoting Allen v.
Krause, 703 A.2d 993, 996 (N.J. Super. Ct. App. Div. 1997)).
Here, Plaintiff does not make a necessary showing of “extraordinary circumstances.”
First, Plaintiff appears to conflate “extraordinary circumstances” for failing to file with the

general seriousness surrounding the claim at issue. This Court too is shocked and saddened by
instances of misconduct, especially where, as here, the vile acts were inflicted upon a child. But,
as the New Jersey Supreme Court explained in D.D., it is improper to “permit sympathy for a
particular plaintiff to obscure the statutory standard [for a timely notice of claim] to the point of
obliterating it.” 61 A.3d at 922. This is because “[t]he Legislature has commanded that [such]
relief be granted only in circumstances that are extraordinary.” Id.
Plaintiff next argues that Defendants had “extensive knowledge of the facts” and also
engaged in “coy and dilatory response[s] to negotiations, pleadings, and discovery.” Pl. Opp. Br.
at 19. Counsel pontificates on these allegations before admitting that he decided not to file a
notice because he believed it was superfluous.
Plaintiff’s argument fails because it impermissibly conflates counsel’s subjective beliefs
with the extraordinary circumstances standard. Plaintiff’s mistaken understanding of the rule is
irrelevant. Furthermore, courts, in the rare instances permitting late filings, have focused largely
on the objective difficulty that precluded a plaintiff from filing timely. See, e.g., Lowe v.
Zarghami, 731 A.2d 14, 17, 26 (N.J. 1999) (excusing Plaintiff’s filing the notice on the wrong
entity because the Defendant doctor’s “status as a public employee was obscured by his apparent
status as a private physician.”); Feinberg v. State Department of Environmental Protection, 644
A.2d 593, 597 (N.J. 1994) (where the original public entity defendants actively thwarted
plaintiff’s efforts to ascertain the identity of the public entities responsible); Maher v. County of
Mercer, 894 A.2d 100, 104 (N.J. Super Ct. App. Div. 2006) (where plaintiff was in an induced
coma during the ninety day period and was not even expected to survive). Plaintiff simply does
not show any overt challenges that thwarted the proper filing of a notice.

Finally, the Court finds Plaintiff’s argument especially unconvincing given counsel’s
intimate familiarity with the TCA. Defendants, in answering the Complaint, asserted affirmative
defenses that Plaintiff failed to provide TCA notice. Even if the defense appeared “buried” on
page eleven, Pl. Opp. Br. at 4, counsel should have read the answer and attempted to cure the
deficiencies. Moreover, Plaintiff had all the necessary information available and knew how to
file a TCA notice since he had with Jane Doe 1 and Jane Doe 2. Counsel’s decision to ignore the
rule is far from an “extraordinary circumstance.” As the Court explained in D.D., neither “an
attorney’s inattention, [n]or even an attorney’s malpractice, constitutes an extraordinary
circumstance sufficient” to permit filing a notice of claim outside of the one-year window of
N.J.S.A. 59:8–9, even if there is a lack of prejudice to the plaintiff. 61 A.3d at 921; see also
Beauchamp, 751 A.2d at 1050-51 (explaining the more stringent standards for timely claim
notices following the TCA’s amendment in 1994). The Court therefore rejects Plaintiff’s request
to file a late notice.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion to for partial summary judgment against

Count Four (Doc. No. 37) is GRANTED. Further, Plaintiff’s motion to file a late notice of
claim under the TCA (Doc. No. 42) is DENIED. An Order will follow.

Dated: 5/21/2019

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge