FLEMING-MARTINEZ v. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY et al
OPINION AND ORDER Denying 34 Plaintiff's Motion for Leave to File Late Government Claim. Signed by Magistrate Judge Sharon A. King on 5/6/2022. (amv)
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[ECF No. 34]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 20-13098 (RMB/SAK)
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY
OPINION AND ORDER
This matter is before the Court on the “Motion for Leave to File Late Government Claim”
[ECF No. 34] filed by pro se Plaintiff Boivae Fleming-Martinez. The Court received the
opposition of Defendants New Jersey Division of Child Protection and Permanency (“DCP&P”),
Amanda Hammond, Natasha Cranmer, and Virginia Kenny (collectively, “DCP&P Defendants”)
[ECF No. 35], and Plaintiff’s reply [ECF No. 38]. The Court exercises its discretion to decide the
motion without oral argument. See FED. R. CIV. P. 78; L. CIV. R. 78.1. For the reasons discussed
herein, Plaintiff’s motion is DENIED.
Plaintiff initially filed this civil rights action on September 22, 2020 against the DCP&P
Defendants, Yvette Ramos, and Mrs. Johnson, alleging constitutional violations in connection with
the custody and placement of Plaintiff’s minor children. See Compl. [ECF No. 1]. The DCP&P
Defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
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and 12(b)(6). 1 See Defs.’ First Mot. to Dismiss [ECF No. 6]. Plaintiff opposed Defendants’ motion
and sought leave to amend his complaint to address the deficiencies noted therein. See Pl.’s Opp’n
[ECF No. 9]. The Honorable Robert B. Kugler, U.S.D.J., denied the request without prejudice to
Plaintiff’s right to refile a motion for leave to file an amended complaint. See Order, Oct. 6, 2021
[ECF No. 15]. Shortly thereafter, Plaintiff filed a motion to amend. See Pl.’s First Mot. to Amend
[ECF No. 16]. Judge Kugler subsequently granted Plaintiff’s motion to amend, denied the DCP&P
Defendants’ motion to dismiss, and directed Plaintiff to file his first amended complaint (“FAC”)
on the docket. See Order, Nov. 8, 2021 [ECF No. 17]; see also FAC [ECF No. 18].
Plaintiff’s FAC asserts various causes of action against all Defendants for constitutional
violations pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act, as well as tort claims
under New Jersey common law. Specifically, Plaintiff’s FAC asserts the following four counts
against all Defendants:
(1) Violations of the 14th Amendment and the New Jersey Civil Rights Act;
(2) Violations of N.J.S.A. § 9:23-5;
(3) Intentional Infliction of Emotional Distress (IIED); and
(4) Negligence. 2
See FAC ¶¶ 40–63. Plaintiff’s causes of action are premised on factual allegations spanning from
October 2009 through October 2019. See id. ¶¶ 3–28. In sum, Plaintiff alleges that Defendants’
acts or omissions caused his minor children to be placed and to remain in the custody and care of
an unfit custodian. See id. As a result, Plaintiff contends his children were caused to suffer mental
and emotional harm due to abuse and neglect, and that he and his family have suffered emotional
and financial harm related to their efforts to retain custody of the children. See id. ¶¶ 27–28.
Defendant Virginia Kenny did not join the other DCP&P Defendants in this motion.
The FAC purports to assert five causes of action but the pleading does not contain a second count.
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In lieu of filing an answer, the DCP&P Defendants moved to dismiss Plaintiff’s FAC under
similar theories raised in their first motion to dismiss. 3 See Second Mot. to Dismiss [ECF No. 22].
The DCP&P Defendants alleged, inter alia, that Plaintiff’s claims for IIED and negligence were
barred as a matter of law because of his failure to comply with statutory notice requirements. See
Defs.’ Mot. Br. at 1–2 [ECF No. 22-1]. Plaintiff opposed the motion, contending he was unaware
of the notice requirements and that he intended to file a motion for leave to file a late government
claim to preserve his state law tort claims. See Pl.’s Opp’n [ECF No. 27].
On February 28, 2022, Plaintiff filed the instant motion for leave to file a late government
claim pursuant to N.J.S.A. § 59:8-9. See Mot. at 1. Plaintiff contends his request is timely because
the alleged tortious conduct of the defendants is ongoing. See id. Plaintiff further contends that,
since he is currently incarcerated in the State of Nevada with no access to a law library and since
he lacks freedom of movement, “the failure to file [notice] was done not through negligence on
the part of plaintiff but due to extraordinary circumstances outside of his control.” Id. at 2. More
specifically, Plaintiff alleges he “received documents from defendant’s agent on January 20, 2020
and soon after was in lockdown based on Covid-19.” Id. Plaintiff provides no further elaboration
but appears to suggest that he became aware of his potential claims against Defendants on January
20, 2020 and that the subsequent lockdown hindered his ability to timely file notice.
The DCP&P Defendants oppose the motion, alleging (1) the Court lacks statutory authority
to grant the requested relief, (2) that Plaintiff’s inability to timely file notice is not the product of
extraordinary circumstances, and (3) that the motion is untimely because it was not filed within
one year of the accrual of Plaintiff’s tort claims. See Defs.’ Opp’n at 1–2 [ECF No. 35]. 4
Defendant Virginia Kenny did not join the other DCP&P Defendants upon filing. However, after
counsel entered an appearance on her behalf, Ms. Kenny joined in the motion. See ECF No. 30.
Defendants rely upon and incorporate by reference the brief filed in support of their second
motion to dismiss. See id. at 2 n.1; see also Defs.’ Mot. Br.
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A. Legal Standard
The New Jersey Tort Claims Act (the “NJTCA” or the “Act”) provides that “no action shall
be brought against a public entity or public employee under [the Act] unless the claim upon which
it is based shall have been presented in accordance with the procedures set forth in this Chapter.”
N.J.S.A. § 59:8-3. The purpose of the Act “was to reestablish the immunity of public entities while
coherently ameliorating the harsh results of the [sovereign immunity] doctrine.” Beauchamp v.
Amedio, 164 N.J. 111, 115 (2000). To this end, the Act requires a claimant to sign and file a notice
of tort claim (a “Notice of Claim”) with the public entity within 90 days of the accrual of the cause
of action. See Tripo v. Robert Wood Johnson Med. Ctr., 845 F. Supp. 2d 621, 626 (D.N.J. 2012)
(citing N.J.S.A. § 59:8-8). Importantly, a failure to timely serve a Notice of Claim will result in
the claimant being “forever barred from recovering against [the] public entity or public employee.”
N.J.S.A. § 59:8-8.
The Act does, however, provide courts with limited discretion to allow for the late filing
of a Notice of Claim. Specifically, a court may permit the late filing of notice where a party seeks
leave by motion within one year of the claim accrual date, provided that: (1) the claimant seeking
to file a late claim shows reasons constituting “extraordinary circumstances” for his or her failure
to meet the 90-day filing requirement; and (2) the defendant(s) are not “substantially prejudiced
thereby.” N.J.S.A. § 59:8-9. “The existence of ‘extraordinary circumstances’ is to be determined
by a court on a case-by-case basis.” Tripo, 845 F. Supp. 2d at 627; see id. (quoting Beauchamp,
164 N.J. at 118) (noting “the New Jersey Supreme Court has explained that the purpose of adding
the phrase ‘extraordinary circumstances’” to the NJTCA was to “raise the bar for the filing of late
notice from a ‘fairly permissive standard’ to a ‘more demanding one’”).
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The Court must engage in a “sequential analysis” to determine whether a Notice of Claim
was timely filed. Beauchamp, 164 N.J. at 118. The New Jersey Supreme Court has explained:
The first task is always to determine when the claim accrued. The discovery rule
is part and parcel of such an inquiry because it can toll the date of accrual. Once
the date of accrual is ascertained, the next task is to determine whether a notice of
claim was filed within ninety days. If not, the third task is to decide whether
extraordinary circumstances exist justifying a late notice. Although occasionally
the facts of a case may cut across those issues, they are entirely distinct.
McDade v. Siazon, 208 N.J. 463, 475 (2011) (quoting Beauchamp, 164 N.J. at 118–19). “It is a
common and regrettable occurrence for accrual and extraordinary circumstances to be treated as
interchangeable and for courts and litigants to overlook the primary question of accrual and directly
confront the ultimate question of extraordinary circumstances. What is important is to understand
the framework of a Tort Claims notice analysis and to follow it.” Beauchamp, 164 N.J. at 119.
In the instant matter, there is no dispute that the claims at issue are claims against DCP&P,
a public entity, and current or former employees of DCP&P. Consequently, Plaintiff was required
to file a Notice of Claim pursuant to the NJTCA. However, Plaintiff argues that extraordinary
circumstances exist to allow for the late filing of notice. Conversely, Defendants contend that
Plaintiff admits he was aware of his potential claims as of January 20, 2020, and therefore, his
claims accrued on that date. Since Plaintiff’s motion was filed over two years later, Defendants
further contend that it must be denied as untimely. Plaintiff counters that Defendants’ alleged
conduct is ongoing and “continuing” in the legal sense, since they continue to maintain jurisdiction
over his minor children. As such, Plaintiff alleges his claims have not yet accrued and therefore,
“there really is no need to file a late claim.” Pl.’s Reply at 4. Nevertheless, Plaintiff maintains that
his motion to file a late government claim should be granted.
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For purposes of the instant motion, the Court finds Plaintiff’s claims accrued, at the latest,
by January 20, 2020—the date on which he purportedly received notice of his potential claims.5
Any argument that these claims have yet to accrue due to the ongoing or “continuing” nature of
Defendants’ alleged tortious conduct is misguided. While the Court is mindful Plaintiff is
proceeding pro se and liberally construes his pleadings and papers as such, the case law leaves no
doubt here: “[O]nce an injury is known, even a minor one, the ninety[-]day notice is triggered.
Worsening of that injury does not extend the time or otherwise alter the party’s obligations.”
Beauchamp, 164 N.J. at 122. Having established January 20, 2020 as the latest date on which his
claims could have accrued, the Court must next determine whether Plaintiff timely served notice.
Here, Plaintiff would have been required to serve a Notice of Claim on or before April 19, 2020.
He did not. Thus, the Court finds Plaintiff failed to timely serve notice of his claims.
In light of the Court finding that Plaintiff’s claims accrued on or before January 20, 2020,
Plaintiff’s request for leave to file a late Notice of Claim under N.J.S.A. § 59:8-9 must be denied.
Plaintiff argues extraordinary circumstances exist to warrant such relief. However, it is well settled
that “[o]nce the one-year outer time limit has passed, a court cannot allow late notice, and thus,
cannot consider extraordinary circumstances or potential prejudice.” Davis v. Twp. of Paulsboro,
371 F. Supp. 2d 611, 618 (D.N.J. 2005) (citations omitted); see Pilonero v. Twp. of Old Bridge,
566 A.2d 546, 548 (N.J. Super. Ct. App. Div. 1989) (citations and internal quotations omitted)
(“After the one-year limitation has passed, the court is without authority to relieve a plaintiff from
his failure to have filed a notice of claim.”). The instant motion was filed on February 28, 2022,
which far exceeds the one-year limitation period. 6 As such, Plaintiff’s motion must be denied.
To be clear, the Court finds that this is latest date on which Plaintiff’s claims could have accrued.
Because any earlier date of accrual would have no bearing on the outcome of the instant motion,
the Court makes no finding with respect to when Plaintiff’s claims actually accrued.
Here, Plaintiff would have been required to file his motion by January 20, 2021.
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Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED this 6th day of May, 2022, that Plaintiff’s “Motion for Leave
to File Late Government Claim” [ECF No. 34] is DENIED; and it is further
ORDERED that the Clerk’s Office shall forward a copy of this Opinion and Order to
Plaintiff via regular mail and shall enter a notation on the docket indicating the date upon which
this Order was forwarded to Plaintiff via regular mail.
s/ Sharon A. King
SHARON A. KING
United States Magistrate Judge
cc: Hon. Renée M. Bumb, U.S.D.J.
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