THE ESTATE OF LAURA CHRISTINE SEMPREVIVO et al v. ATLANTIC COUNTY et al

Filing 48

OPINION. Signed by Judge Renee Marie Bumb on 9/4/2019. (tf, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

THE ESTATE OF LAURA SEMPREVIVO
et al.,

Civ. No. 18-1953(RMB-JS)
Plaintiff,

v.

OPINION

ATLANTIC COUNTY, et al.,
Defendants.
APPEARANCES:
John E. Kusturiss, Jr., Esq.
Law Offices of Conrad J. Benedetto
1405 Chews Landing Road, Suite 21
Laurel Springs, N.J. 08021
On behalf of Plaintiff
Conrad J. Benedetto, Esq.
The Law Offices of Conrad Benedetto
1233 Haddonfield-Berlin Road, Suite 1
Voorhees, N.J. 08043
On behalf of Plaintiff
Stephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
Holtzman & McClain, PC
524 Maple Avenue, Suite 200
Linwood, N.J. 08221
On behalf of Defendant CFG Health Systems, LLC
James T. Dugan, Esq.
Atlantic County Department of Law
1333 Atlantic Avenue, 8th Floor
Atlantic City, N.J. 08401
On behalf of Defendants Atlantic County
and Warden Geraldine Cohen

BUMB, United States District Judge
This matter comes before the Court upon Defendant CFG Health
Systems LLC’s (“CFG”) motion for summary judgment (“CFG’s Motion
for Summ. J.,” ECF No. 28) joined by Defendants Atlantic County
and Warden Geraldine Cohen (the “Atlantic County Defendants”)
(Letter, ECF No. 29); Plaintiff’s opposition to summary judgment
(Pl’s Opp. to Mot. for Summ. J., ECF No. 33); CFG’s reply brief in
support of motion for summary judgment (CFG’s Reply, ECF No. 34)
and CFG’s motion for sanctions (CFG’s Mot. for Sanctions, ECF No.
35). For the reasons discussed below, the Court will grant summary
judgment to CFG, deny summary judgment to the Atlantic County
Defendants and deny CFG’s motion for sanctions.
I.

BACKGROUND
This suit, “Semprevivo II” arises out of the suicide death of

Laura Semprevivo on September 16, 2016, in Atlantic County Jail.
(Compl., ECF No. 1, ¶21.) Defendant CFG, joined by the Atlantic
County Defendants, seek summary judgment based on res judicata
and/or

collateral

estoppel

stemming

from

the

dismissal

of

a

similar, earlier action, “Semprevivo I.” Plaintiff opposes summary
judgment because the claims against the Atlantic County Defendants
were

voluntarily

dismissed

without

prejudice

and

because

the

claims against CFG are not the same claims brought in Semprevivo
II.

2

II. SEMPREVIVO I AND SEMPREVIVO II
Semprevivo I was filed on March 29, 2017, Civil Action No.
17-2050(RMB-JS) (D.N.J.) Plaintiff alleged the following in the
“Introductory Statement” in Semprevivo I:
1.
This is a civil rights action brought
pursuant to 42 U.S.C. § 1983 seeking damages
against Defendants for committing acts under
color of law that deprived Plaintiff, Laura
Christine Semprevivo, of her rights secured to
her by the Constitution and laws of the United
States.
2.
In particular, on September 16, 2016,
Defendants violated the rights of Laura
Christine Semprevivo by failing to keep her in
a safe and secure environment where she could
be kept free from injury, harm and death, and
by failing to provide her with adequate
medical care and attention in violation of the
Eighth
Amendment
to
the
United
States
Constitution.
3.
In addition, this action is brought by
Plaintiff[] against Defendants under the New
Jersey common tort of negligence, as well as
the New Jersey Civil Rights Act.
The

Introductory

Statement

in

Semprevivo

II

is

nearly

identical.1
In Semprevivo I and II, Plaintiff raised the same seven claims
for relief but in Semprevivo I, Plaintiff sued CFG only under state
tort law and in Semprevivo II, Plaintiff sued CFG only under 42
U.S.C. § 1983 and the New Jersey Civil Rights Act. (Compare

1

Plaintiff added an allegation of failure to provide adequate
supervision to Paragraph 2 of the complaint in Semprevivo II.
3

Semprevivo I, Civil Action No. 17-2050(RMB-JS) (Compl., ECF No. 1,
with Semprevivo II, Compl., ECF No. 1.)
Dismissal of CFG from Semprevivo I came about as follows. CFG
filed an answer to the complaint on April 18, 2017. Semprevivo I,
Civil Action No. 17-2050(RMB-JS) (Answer, ECF No. 14.) On May 8,
2017, the parties submitted a joint discovery plan. (Id., Joint
Discovery Plan, ECF No. 20.) On June 9, 2017, the Honorable
Magistrate Judge Joel Schneider entered a Scheduling Order, with
amended pleadings due by August 31, 2017, discovery completed by
December 29, 2017, and dispositive motions due on May 1, 2018.
(Id., Scheduling Order, ECF No. 23.)
On August 21, 2017, CFG filed a motion for summary judgment,
arguing

that

Plaintiff’s

medical

and

professional

negligence

claims should be dismissed for failure to produce an Affidavit of
Merit in compliance with N.J.S.A. 2A:53A-26 et seq. (Id., Mot. for
Summ. J., ECF No. 25.) On August 29, 2017, Plaintiff filed a motion
to dismiss the entire action without prejudice. (Id., Mot. to
Dismmiss, ECF No. 27.) CFG opposed Plaintiff’s voluntary dismissal
without prejudice and sought summary judgment with prejudice based
on Plaintiff’s failure to obtain an Affidavit of Merit. (Id., Cross
Mot. for Summ. J., ECF No. 38.)
An amended scheduling order was entered on October 30, 2017,
staying

the

deadlines

pending

decisions

on

the

outstanding

dispositive motions. (Id., Am. Scheduling Order, ECF No. 40.) Oral
4

argument was heard on CFG’s motion for summary judgment and
Plaintiff’s motion for voluntary dismissal without prejudice on
December 5, 2017. Semprevivo I, Civil Action No. 17-2050(RMB-JS)
(Letter Order, ECF No. 42.) On December 6, 2017, this Court granted
Plaintiff’s motion to dismiss, but dismissal against CFG was with
prejudice because CFG failed to obtain the necessary Affidavit of
Merit on its state tort claims, and the remainder of the action
was dismissed without prejudice. (Id., Order, ECF No. 43.)
Although an amended scheduling order stayed the deadlines in
Semprevivo I on October 30, 2017, the deadline for filing amended
pleadings had already expired on August 31, 2017. Instead of filing
an amended pleading before the deadline expired, on August 29,
2017, Plaintiff filed a motion to dismiss the action without
prejudice. This led to Plaintiff filing Semprevivo II on February
9, 2018.
III. DISCUSSION
A.

Federal Rule of Civil Procedure 56

Under Federal Rule of Civil Procedure 56(a), a “court shall
grant summary judgment 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.” A party asserting that a fact cannot
be genuinely disputed must cite to materials in the record,
including

depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations (including
5

those

made

interrogatory

for

purposes

answers,

or

of

the

other

motion

only),

materials.

Fed.

admissions,
R.

Civ.

P.

56(c)(1)(A). If a party fails to properly address another party’s
assertion of fact, the court may consider the fact undisputed for
purposes of the motion. Fed. R. Civ. P. 56(e)(2).
B.

Summary Judgment Standard of Review

Summary judgment is proper where the moving party “shows that
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d
Cir. 2017). The burden then shifts to the nonmovant to show, beyond
the pleadings, “‘that there is a genuine issue for trial.” Id. at
391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986)
(emphasis in Daubert)). “At the summary judgment stage, facts must
be viewed in the light most favorable to the nonmoving party only
if there is a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (citing Fed. Rule Civ. Proc.
56(c)).
C.

The Parties’ Arguments

CFG contends that Plaintiff is attempting to relitigate the
exact same claims against the exact same party that were litigated
or could have been litigated in Semprevivo I. Therefore, CFG seeks
dismissal based on res judicata and collateral estoppel. (CFG’s

6

Brief in Supp. of Summ. J., ECF No. 28-9 at 22; Statement of
Undisputed Material Facts, ECF No. 28-8.)
CFG asserts that in Semprevivo I it identified by name the
CFG nurses involved in Laura Semprevivo’s care in Atlantic County
Jail during the relevant time period, and that CFG asserted the
affirmative defense of Plaintiff’s failure to file an Affidavit of
Merit as to CFG employees as well as to CFG as an entity. (Id.)
CFG

notes

that

Plaintiff

did

not

include

CFG

employees

as

defendants in Semprevivo I, although CFG identified the employees
in its answer and Plaintiff had the opportunity to do so. (Id. at
18.) CFG then concludes:
Simply put, Plaintiff was given the identities
of potential negligent licensed professionals
and afforded the opportunity to obtain an
Affidavit of Merit with respect to same,
whether as to direct claims of professional
negligence which could have been brought
against the individual medical providers or
for claims of vicarious liability against
Defendant
CFGHS
based
on
professional
negligence of individual medical providers.
Plaintiff failed to do so and all claims were
dismissed with prejudice.
Based on the foregoing, summary judgment and
dismissal with prejudice are appropriate as to
all claims brought against Defendant CFGHS
based on the application of the doctrines of
claim preclusion (res judicata) and issue
preclusion (collateral estoppel).
(CFG’s Brief in Supp. of Summ. J., ECF No. 28-9 at 19.) CFG requests
that “to avoid further issues, the Court should also order that no

7

further amendment attempting to implead new medical professional
defendants will be permitted in this action.” (Id. at 22.)
Plaintiff responds that res judicata and collateral estoppel
are inapplicable. (Pl’s Brief In Opp. to Def. CFG’s Mot. for Summ.
J., ECF No. 33 at 5; Pl’s Response to Defendant’s Statement of
Undisputed Material Facts, ECF No. 33-2.) First, as to the Atlantic
County Defendants joining in CFG’s motion for summary judgment,
Plaintiff argues res judicata is inapplicable because the claims
against the Atlantic County Defendants were dismissed without
prejudice; therefore, there was no final judgment on the merits.
(Id. at 6.)
Second, Plaintiff contends res judicata does not apply to CFG
because Semprevivo II is not based on the same cause of action.
(Id.) Plaintiff states that there is no clear-cut test for when a
suit involves the “same cause of action” for res judicata purposes.
(Id. at 7.) This Court dismissed CFG from Semprevivo I because
Plaintiff failed to obtain an Affidavit of Merit in support of
their negligence, wrongful death, and survival actions under New
Jersey state law, but in Semprevivo II, Plaintiff brought causes
of action against CFG for federal constitutional violations and
under the New Jersey Civil Rights Act. (Id.) Thus, neither of these
causes of action were asserted or decided against CFG in Semprevivo
I, where Plaintiff sought vicarious liability against CFG for the
acts of their employees. (Id.)
8

In Semprevivo II, Plaintiff maintains that the cause of action
is different, they seek to hold CFG liable for (1) “failure to
intervene

and

see

that

correctional

staff

were

trained

in

accordance with the contract that they had signed with Atlantic
County;” (2) “failure to reflect on the increasing number of
suicides at the facility and implement changes to their policies
to counteract this fact’” and (3) “complete indifference to the
culture of the substandard care that has ran rampant at the
Atlantic County Jail.” (Id. at 8.) Plaintiff explains:
In Semprevivo I, the redress sought was for
the actual care provided by Defendant CFGHS.
Here, the redress is for the Defendant’s
complete indifference to Laura Semprevivo’s
constitutional rights under the 8th and 14th
amendments.
(Id.)
CFG, in reply, points to the nearly identical Introductory
Statements in the complaints in Semprevivo I and Semprevivo II and
concludes that although some of the legal claims as to certain
defendants

are

different,

the

cause

of

action

is

otherwise

virtually identical. (Reply Brief in Supp. of Mot. for Summ. J.,
ECF No. 34 at 4.) CFG argues that Plaintiff ignores legal precedent
that res judicata bars claims that were previously available,
whether or not the claims were asserted in the earlier litigation.
(Id. at 5, citing Angel v. Bullington, 330 U.S. 183, 192-93 (1947)
citing (Chicot County Drainage Dist. V. Baxter State Bank, 308

9

U.S. 371 (1940)). CFG claims that res judicata bars all matters
which might have been raised by the parties in a former suit, as
well as those matters that were actually raised. (Id. at 6, citing
Gage v. Warren Tp. Committee & Planning Bd. Members, 463 F. App’x
68, 72 (3d Cir. 2012) citing (Kent Motor Cars, Inc. v. Reynolds &
Reynolds Co., 25 A.3d 1027, 1036 (N.J. 2011).
D.

Analysis

Res judicata, also called claim preclusion, acts as a bar to
subsequent litigation when three elements are met:
(1) a final judgment on the merits in a prior
suit involving (2) the same parties or their
privies and (3) a subsequent suit based on the
same cause of action.
Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 279–80 (3d Cir.
2016). “The third factor ‘generally is thought to turn on the
essential similarity of the underlying events giving rise to the
various legal claims.’” Id. at 280.
[R]es judicata bars a claim litigated between
the same parties or their privies in earlier
litigation where the claim arises from the
same set of facts as a claim adjudicated on
the
merits
in
the
earlier
litigation.
“Moreover, ‘res judicata bars not only claims
that were brought in the previous action, but
also claims that could have been brought.’”
[Sheridan v. NGK Metals Corp., 609 F.3d 239,
261 (3d Cir. 2010)] (internal citations
omitted) (quoting Davis v. U.S. Steel Supply,
688 F.2d 166, 171 (3d Cir. 1982). Further,
“[t]he fact that several new and discrete
discriminatory events are alleged does not
compel
a
different
result.
A
claim
extinguished by res judicata ‘includes all
10

rights of the plaintiff to remedies against
the defendant with respect to all or any part
of the transaction, or series of connected
transactions, out of which the action arose.’”
[Davis, 688 F.2d] at 174 (emphasis in
original) (quoting Restatement (Second) of
Judgments § 24(1) (1982)).
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014).
In determining whether two lawsuits involve the “same cause of
action” for the application of res judicata “the focus is on the
facts rather than the legal theories.” Davis v. Wells Fargo, 824
F.3d 333, 342 (3d Cir. 2016).
The Court dismissed the claims against CFG in Semprevivo I
with prejudice because, although Plaintiff sought to voluntarily
dismiss

the

action

without

prejudice,

CFG

established

that

Plaintiff failed to obtain the requisite Affidavit of Merit in
support of their New Jersey state tort claims for negligence,
wrongful death and a survival action. Only the Atlantic County
Defendants were dismissed without prejudice in Semprevivo I. Res
judicata does not bar Plaintiff’s claims against the Atlantic
County Defendants in Semprevivo II because there was no final
judgment on the merits as to them.
The same series of transactions underlie Semprevivo I and
Semprevivo II. The allegations are that Laura Semprevivo was
incarcerated in Atlantic County Jail on September 16, 2016, and
CFG was under contract to provide health care to inmates in
Atlantic

County

Jail

when

Semprevivo
11

committed

suicide

on

September 16, 2016. In Semprevivo I, Plaintiff sought to hold CFG
liable for the negligence of its employees who failed to provide
Semprevivo with adequate medical care during her incarceration. In
Semprevivo

II,

Plaintiff

deliberate

indifference

seeks
to

the

to

hold

CFG

inadequate

liable

care

for

provided

its
to

Semprevivo when she committed suicide during her incarceration.
Only the legal theories are different, the facts concerning the
care provided to Semprevivo by CFG employees are the same in both
actions.
Indeed, Plaintiff could have brought its § 1983 and NJCRA
claims against CFG in Semprevivo I after CFG filed its motion for
summary judgment on August 21, 2017. But, as discussed above,
Plaintiff chose instead to seek voluntary dismissal of Semprevivo
I without prejudice. The Court dismissed the action as to CFG with
prejudice.

Plaintiff

is

now

precluded

by

res

judicata

from

litigating claims against CFG in Semprevivo II.
John Doe CFG employees have not been identified or served in
this action. Therefore, it is improper for this Court to determine
whether res judicata bars Plaintiff’s claims against John Doe CFG
employees in Semprevivo II.
IV.

CFG’s MOTION FOR SANCTIONS
CFG seeks sanctions against Plaintiff and/or Plaintiff’s

counsel under Federal Rule of Civil Procedure 11, alleging that
Plaintiff brought this action against CFG knowing that all claims
12

against CFG were dismissed with prejudice in Semprevivo I, and
Plaintiff should have brought all of its potential claims against
CFG instead of bringing new claims in Semprevivo II. (Brief in
Supp. of Mot. for Sanctions, ECF No. 35-9.)
“To comply with Rule 11, counsel is required to conduct ‘a
reasonable inquiry into both the facts and the law supporting a
particular pleading.’” Balthazar v. Atl. City Med. Ctr., 279 F.
Supp. 2d 574, 593–94 (D.N.J. 2003), aff'd, 137 F. App'x 482 (3d
Cir. 2005) (quoting In re Prudential Ins. Co. Am. Sales Practice
Litig. Agent Actions, 278 F.3d 175, 187 n. 7 (3d Cir. 2002)). The
Court finds counsel’s conduct in this case most troubling.

At

this point, however, the Court will deny the request for sanctions,
but hereby publicly REPRIMANDS counsel for his misconduct. Counsel
is warned that, in the future, bringing claims in a new action
that could have been raised in an earlier dismissed action will
likely result in monetary sanctions if unsupported by law.
V.

CONCLUSION
For the reasons discussed above, the Court grants CFG’s motion

for summary judgment and dismisses the claims against CFG with
prejudice; denies CFG’s motion for sanctions; and denies summary
judgment to the Atlantic County Defendants.
An appropriate order follows.

13

Date: September 4, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

14