BROOKMAN et al v. TOWNSHIP OF HILLSIDE et al

Filing 27

LETTER OPINION. Signed by Judge William J. Martini on 12/4/09. (gh, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M A R T I N LU T H E R KIN G JR . FED E R A L BLD G . & U . S . C O U R T H O U S E 5 0 W A L N U T STR E E T , P.O . BO X 419 N E W A R K , N J 07101-0419

[phone] WILLIAM J. MARTINI JUDGE

L E T T E R OPINION D e c e m b e r 4, 2009

H o w a rd Brookman 1 4 5 Springfield Road E liz a b e th , New Jersey 07208 (Attorney for Plaintiffs) R ic h a rd H. Bauch B a u c h Zucker Hatfield LLC 8 7 1 Mountain Avenue S u ite 200 S p rin g f ie ld , New Jersey 07081 (Attorney for Defendant Township of Hillside) N o m i I. Lowy T h o m a s Joseph Cafferty S c a rin c i Hollenbeck 1 1 0 0 Valley Brook Avenue P .O . Box 790 L yn d h u rs t, New Jersey 07071 (Attorney for Defendant Worrall Community Newspapers)

W illia m T. Donegan U n io n County Counsel A d m in istra tio n Building E liz a b e th , New Jersey 07207 (Attorney for Defendant County of Union)

R o b e rt F. Varady L a Corte, Bundy, Varady & Kinsella, E sqs. 9 8 9 Bonnel Court U n io n , New Jersey 07083 (Attorney for Defendants Union County Prosecutor's Office & Township of Hillside)

RE:

B r o o k m a n , et al. v. Twp. of Hillside, et al. C iv . No. 09-2178 (WJM)

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Dear Counsel: T h is is a civil rights action brought by Howard, Barbara, and Jeffrey Brookman a g a in s t various law enforcement, governmental, and media defendants under 42 U.S.C. § § 1983 and 1985 and the New Jersey Law Against Discrimination. In their complaint, p la in tif f s allege a variety of counts, ranging from false arrest and fabrication of evidence to libel. T h e re are three motions presently before the court: (1) the law enforcement d e f e n d a n ts1 move to stay this matter, given the pending criminal prosecution of the B ro o k m a n s ; (2) Union County moves to dismiss the counts asserted against it, alleging th a t it cannot be held vicariously liable for actions allegedly taken by county employees; a n d (3) the newspaper defendants2 move to dismiss the libel and intentional infliction of e m o tio n a l distress counts against them on procedural grounds. For the reasons that f o llo w , these motions are granted in part and denied in part. I. BACKGROUND

A. F a c ts T h is case stems from the arrest of Howard, Barbara, and Jeffrey Brookman by the H ills id e Police Department on May 9, 2007. Prior to the arrest, plaintiff Barbara B ro o k m a n called an ambulance on behalf of a ninety-two year-old woman in her home. A t some point after the ambulance was called, Hillside police arrived and arrested B a rb a ra Brookman, charging her with elder neglect and resisting arrest. Barbara B ro o k m a n 's two sons, Jeffrey and Howard, were also arrested. Jeffrey was charged with e ld e r neglect, and Howard was charged with obstruction and hindering prosecution. See C o m p l. ¶ 26. T h e Hillside chief of police then allegedly issued a press release about the arrest. The following week, the local newspaper, the Union Leader, ran an article about the

The "law enforcement defendants" are the Union County Prosecutor's Office, Assistant Prosecutor David P. Schneider, Assistant Prosecutor Albert Cernadas, Jr., Assistant Prosecutor Joshua F. McMahon, the Township of Hillside, the Hillside Police Department, Chief of Police Robert Quinlan, Detective Lieutenant Matthew Ross, Sergeant Matthew Cove, Officer Cosimo Tripoli, Officer Javier De La Torre, and Genevieve Deo. The "newspaper defendants" are Worrall Community Newspapers, Inc., Toniann Antonelli, and Raymond Worrall. 2
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Brookmans, entitled "Hillside Police Charge Three with Neglecting Elderly Woman." This article also appeared on the paper's website. While Jeffrey's charges subsequently were dismissed, the criminal prosecution of H o w a rd and Barbara Brookman is ongoing. See Pls.' Aug. 24, 2009 Letter Br. 8. Howard re m a in s charged with obstruction, while Barbara faces elderly neglect and resisting arrest c o u n ts . Id. at 9. B. P ro c e d u ra l History O n May 9, 2008, Howard Brookman3 filed a complaint in the New Jersey Superior C o u rt. This complaint contained, inter alia, the following counts pertaining to the n e w s p a p e r defendants ­ libel per se, invasion of privacy, intentional infliction of e m o tio n a l distress, and negligent infliction of emotional distress. See Newspaper Defs.' B r. Ex. A (copy of Howard Brookman's state complaint). T h is state complaint was dismissed without prejudice by the Superior Court on M a rc h 13, 2009, pursuant to R. 4:23-2(b).4 See Newspaper Defs.' Br. Ex. B (copy of J u d g e Anzaldi's March 13, 2009 order). In this order, the state judge granted Howard B ro o k m a n ninety days to "cure each of his discovery violations." Id. If Brookman failed to do so, the court stated that his complaint would be dismissed with prejudice on motion b y defendants. Brookman filed a motion for reconsideration, which was denied on May 1 , 2009. See Newspaper Defs.' Br. Ex. C (copy of Judge Anzaldi's May 1, 2009 order). The May 1, 2009 order denying reconsideration noted that Brookman could move to have th e complaint restored after "purg[ing] himself of the discovery deficiencies." Id. O n April 30, 2009, Brookman provided certain responses to defendants' discovery re q u e s ts . See Newspaper Defs.' Br. 4; Brookman's Aug. 24, 2009 Letter Br. 11. Brookman then filed the instant complaint in this Court on May 8, 2009. This federal c o m p la in t adds Jeffrey and Barbara Brookman as plaintiffs, and also asserts several new c iv il rights counts against the law enforcement defendants and Union County. Notably, h o w e v e r, the federal complaint states identical causes of action against the newspaper d e f e n d a n ts . In the interim, Howard Brookman continued to pursue his action in state court. On J u n e 10, 2009 ­ one month after filing the federal complaint before this court ­
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Only Howard Brookman was named as a plaintiff in the New Jersey Superior Court

action.
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R. 4:23-2 is entitled "Failure to Comply with Order." 3

Brookman filed a motion to reinstate his state court complaint. See Newspaper Defs.' Br. 5 . This motion was apparently denied, as the state court judge granted defendants' m o tio n to dismiss the complaint with prejudice pursuant to R. 4:23-5 5 on July 17, 2009. S e e Newspaper Defs.' Reply Br. 1-2; Brookman's Aug. 24, 2009 Letter Br. 11. II. D ISC U S S IO N

T h e instant motions pertain to the May 8, 2009 action filed by Howard, Jeffrey, a n d Barbara Brookman in this Court. As noted, supra, there are three motions pending: (1 ) a motion to stay filed by the law enforcement defendants; (2) a pre-answer motion to d is m is s filed by Union County; and (3) a motion to dismiss filed by the newspaper d e f e n d a n ts . Each motion will be considered in turn. A. L a w Enforcement Defendants' Motion to Stay T h e law enforcement defendants request that this Court stay all proceedings in this m a tte r pending disposition of Howard and Barbara Brookman's criminal charges. This re q u e s t is granted in part. A Section 1983 claim alleging a wrongful arrest or conviction is not cognizable u n til the charges underlying the arrest or conviction are resolved in plaintiff's favor. Heck v . Humphrey, 512 U.S. 477 (1994); see also Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1 9 9 6 ) ("[A] claim that, if successful, would necessarily imply the invalidity of a c o n v ic tio n on a pending criminal charge is not cognizable under § 1983."). The claims a s s e rte d against the law enforcement defendants ­ i.e. false arrest, concealment of e v id e n c e , fabrication of evidence, conspiracy, and spoliation of evidence ­ attack the v a lid ity of the Brookmans' arrest and prosecution. Since the criminal prosecution of the B ro o k m a n s is ongoing, these claims are not cognizable at this time. Accordingly, the law e n f o rc e m e n t defendants' motion to stay is granted as to the claims asserted against them. C o n v e rs e ly, the claims asserted against the newspaper defendants, if successful, w o u ld not imply the invalidity the Brookmans' criminal charges or the underlying arrest. See Holtz, 87 F.3d at 113. Instead, the conduct asserted in the libel and defamation counts a g a in s t the newspaper defendants occurred days after the arrest, with the publication of a rtic le s online and in the Union Leader newspaper. Beyond this, the newspaper d e f e n d a n ts currently move for dismissal based on the statute of limitations, which re q u ire s no analysis of the underlying prosecution. As such, the Court will consider the n e w s p a p e r defendants' pending motion to dismiss below.

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R. 4:23-5 is captioned "Failure to Make Discovery." 4

In addition, the Court will consider the motion to dismiss filed by Union County, s in c e the County's motion similarly raises bases for dismissal that require no examination o f the underlying arrest or prosecution. B. U n io n County's Motion to Dismiss U n io n County brings its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a rg u in g that there are no factual allegations in the complaint to support any claim for re lie f against the County.6 Specifically, Union County notes that the complaint asserts no f a c ts demonstrating tortious conduct by the County itself. Plaintiffs instead appear to p re m ise liability on a respondeat superior theory. See Pls.' Aug. 24, 2009 Letter Br. 10 (" T h e Union County Prosecutor and his Assistant Prosecutors are County employees. ... T h e Union County Prosecutor's Office is therefore answerable to the County and Union C o u n ty's effort to divorce itself from its own Prosecutor's Office should be denied."). Thus, Plaintiffs seek to hold the County liable for the actions of the Prosecutor's Office a n d the Assistant Prosecutors in connection with the investigation and prosecution of the B ro o k m a n s ' criminal case. See Compl. Counts Four (malicious prosecution), Five (c o n c e a lm e n t of evidence), Six (fabrication of evidence), and Seven (conspiracy and o b s tru c tio n of justice). A s a threshold matter, vicarious liability is inapplicable in the Section 1983 c o n te x t, as "a defendant in a [§ 1983] action must have personal involvement in the a lle g e d wrongs." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Bd. o f County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997) (re c o g n iz in g that "a municipality may not be held liable under § 1983 solely because it e m p lo ys a tortfeasor") (citing Monell v. New York City Dep't Soc. Serv., 436 U.S. 658, 6 9 0 -9 4 (1978). Here, Plaintiffs do not allege that the County itself engaged in any to rtio u s acts; instead, it seeks to hold the County liable as the employer of the Union C o u n ty Prosecutor and Assistant Prosecutors. This is impermissible under Section 1983. E v e n if a respondeat superior action could be maintained under Section 1983, the N e w Jersey Supreme Court has held that a county cannot be held vicariously liable for the a c tio n s of the county prosecutor's office, where, as here, the tortious conduct alleged a ro s e out of its investigatory and prosecutorial functions. See Wright v. State, 169 N.J. 4 2 2 , 778 A.2d 443, 462 (2001) (noting that "a county cannot be held vicariously liable for th e actions of prosecutorial defendants related to the investigation and enforcement of the c rim in a l laws of the State."); see also Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. Plaintiffs contend that Union County's pre-answer motion to dismiss was filed out-oftime; however, defendant Union County applied for and received an extension in the time to answer. (Docket No. 6). As such, its pre-answer motion to dismiss was timely filed. 5
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1996). Instead, "when county prosecutors and their subordinates act in their law e n f o rc e m e n t/in v e s tig a to ry capacity, they act as `agents' and `officers' of the State, q u a lif yin g as State employees under N.J.S.A. 59:1-3 for the purpose of determining v ic a rio u s liability." Wright, 778 A.2d at 462. As such, vicarious liability is unavailing a g a in s t Union County, since it is not the proper named party in this action.7 Accordingly, U n io n County's motion to dismiss is granted. C. N e w s p a p e r Defendants' Motion to Dismiss T h e newspaper defendants seek dismissal under Fed. R. Civ. P. 12(b)(6) of the c o u n ts asserted against them ­ Counts One, Two, and Three (libel per se and slander), T e n (invasion of privacy ­ false light), Thirteen (intentional infliction of emotional d is tre s s ), and Fourteen (negligent infliction of emotional distress). In their motion, the n e w s p a p e r defendants argue that dismissal is warranted because these claims are barred b y the statute of limitations. For the reasons that follow, the Court agrees. 1. L ib e l Claims P la in tif f s Howard, Jeffrey, and Barbara Brookman assert libel per se claims in C o u n ts One, Two, and Three of the complaint. As noted above, the allegedly defamatory s ta te m e n ts giving rise to these counts were made in the online and print editions of the U n io n Leader in May 2007. Since the statute of limitations in New Jersey for libel a c tio n s is one year, see N.J.S.A. 2A:14-3, the libel per se claims asserted in plaintiffs' M a y 2009 federal complaint are clearly out-of-time.

Based on the New Jersey Supreme Court's reasoning in Wright, the proper party to be named vicariously in this instance would appear to be the State of New Jersey, not the County of Union. It bears noting, however, that an action against the State of New Jersey would be barred under these facts by the Eleventh Amendment. Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal courts by her own citizens." Edelman v. Jordan, 415 U.S. 651, 663 (1974); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 70-71 (noting that a State cannot be a "person" within the meaning of § 1983 and therefore cannot be sued under that statute, in part because it "does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity."). To waive immunity, the state must unequivocally consent to suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). The Court finding no such waiver in the record of this matter, it appears that this action cannot be brought against the State in federal court.

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Further, the pendency of Howard Brookman's state complaint8 does not toll the s ta tu te of limitations as to the libel claims asserted in his name before this Court. Counts O n e , Two, and Three of the federal complaint are identical to counts asserted by Howard B ro o k m a n alone in the state complaint.9 This state complaint has been dismissed by the S u p e rio r Court, first without prejudice and then with prejudice due to the state judge's d e te rm in a tio n that Howard Brookman did not comply with certain discovery re q u ire m e n ts . This dismissal of Brookman's state court action prohibits this Court from to llin g the statute of limitations for Howard Brookman's claims against the newspaper d e f e n d a n ts . T h e general rule is that the "statute of limitations is not tolled by the filing of a c o m p la in t subsequently dismissed without prejudice." Brennan v. Kulick, 407 F.3d 603, 6 0 6 (3d Cir. 2005). This general rule is subject to exception, notably: "when a complaint is filed within the statute of limitations but is subsequently dismissed without prejudice in an order containing conditions for reinstatement within a specified time period, the statute of limitations is tolled provided that the plaintiff meets those conditions." Id . at 607. Thus, tolling the statute of limitations following the dismissal of an action w ith o u t prejudice hinges on whether the order of dismissal provided conditions for re in s ta te m e n t of the action. If the dismissal was conditional and plaintiff complied with th e conditions, the statute of limitations should be tolled. Otherwise, no toll should be a p p lie d . Here, Howard Brookman's timely-filed state complaint was dismissed with p re ju d ic e when he filed the instant federal action. As such, under the general rule, the s ta tu te of limitations would not be tolled; however, in this instance, the Court must c o n s id e r the exception put forth in Brennan since the state court dismissal was subject to

Jeffrey and Barbara Brookman were not parties to the state complaint. Their claims against the newspaper defendants are raised for the first time in this federal complaint and are dismissed as untimely for the reasons noted above. Howard Brookman states in his briefing that "the federal complaint contains a count not included in the state court complaint, the defamatory allegation that Mrs. Brookman's house was `squalid.'" See Pls.' Aug. 24, 2009 Letter Br. 12. If construed as a new count, plaintiff Howard Brookman's representation that this claim was raised for the first time in May 2009 evinces its untimely nature. This claim was filed two years after the cause of action accrued, placing it outside the one-year statute of limitations. See N.J.S.A. 2A:14-3. 7
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conditions. Specifically, the order of dismissal without prejudice stated that Howard B ro o k m a n had ninety days to "cure each of his discovery violations." See Newspaper D e f s .' Br. Ex. B (copy of Judge Anzaldi's March 13, 2009 order). If Howard Brookman c o m p lie d with these conditions, the state court would grant him leave to move for re s to ra tio n of his action. See Newspaper Defs.' Br. Ex. C (copy of Judge Anzaldi's May 1 , 2009 order). As the procedural history of Brookman's state action demonstrates, he did n o t comply with the state judge's conditions. Instead, Howard Brookman's state c o m p la in t was dismissed with prejudice on July 17, 2009, pursuant to R. 4:23-5 ("Failure to Make Discovery"). Since Howard Brookman did not comply with the state court's conditions for re in s ta te m e n t, this court cannot toll the statute of limitations so to construe his duplicative f e d e ra l libel claims as timely-filed. While plaintiff Howard Brookman invites the Court in his papers to review the state judge's handling of the discovery matter and subsequent d is m is s a l with prejudice, this Court declines to do so. Any recourse available to plaintiff H o w a rd Brookman regarding the dismissal of his state complaint lies in the state courts. F in a lly, it bears noting that under certain circumstances, equitable tolling of the s ta tu te of limitations may be appropriate and may bring otherwise time-barred activity u n d e r the court's consideration. For instance, equitable tolling may be permitted "when a c la im a n t received inadequate notice of her right to file suit, where a motion for a p p o in tm e n t of counsel is pending or where the court has misled the plaintiff into b e lie v in g that she had done everything required of her," or when plaintiff "in some e x tra o rd in a ry way" was prevented from asserting her rights. See Seitzinger v. Reading H o s p . & Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999). None of these bases for equitable to llin g is present here. Nothing in the filings persuades the Court that Plaintiffs were p re v e n te d by Defendants or by this Court from asserting their rights on a timely basis b e f o re this tribunal. As such, equitable tolling will not be applied. F o r the foregoing reasons, Counts One, Two, and Three as asserted by plaintiffs H o w a rd , Jeffrey, and Barbara Brookman are dismissed as to the newspaper defendants. 2. R e m a in in g Tort Claims Asserted Against Newspaper Defendants T h e re are three remaining claims asserted against the newspaper defendants. Count T e n ­ invasion of privacy ­ is put forth only by plaintiff Howard Brookman. Counts T h irte e n and Fourteen ­ intentional infliction of emotional distress and negligent in f lic tio n of emotional distress ­ are asserted by all three plaintiffs. For the reasons that f o llo w , each of these counts are dismissed as time-barred.

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Count Ten asserts a false light invasion of privacy claim that relies upon the same a lle g a tio n s as those put forth in the libel counts described above. Where a plaintiff p re m ise s a false light action on same grounds as a defamation action, the statute of lim ita tio n s for the false light claim is one year. See Swan v. Boardwalk Regency Corp., 4 0 7 N.J. Super. 108, 121-23, 969 A.2d 1145, 1154-55 (N.J. Super. Ct. App. Div. 2009) (s ta tin g that false light claims held to defamation statute of limitations when pled together a n d based on same statements). Plaintiff Howard Brookman brought the instant false lig h t claim in May 2009 ­ two years after the cause of action accrued. Since the statute of lim ita tio n s is not tolled, see Point II.C.1, supra, Count Ten is dismissed as untimely. C o u n ts Thirteen and Fourteen are dismissed on the same grounds. Plaintiffs bring in te n tio n a l infliction and negligent infliction of emotional distress claims against the n e w s p a p e r defendants based on their publication of articles concerning their arrests. These claims, like the false light claim, are pled together with the libel counts and are b a s e d on the same statements. As such, the one-year statute of limitations applicable to th e libel counts is again applicable here to the emotional distress claims. See Botts v. New Y o r k Times Co., Civ. No. 03-1582, 2003 WL 23162315, at *8 (D.N.J. Aug. 29, 2003) (d e e m in g statute of limitations for an emotional distress claim to be one year since e m o tio n a l distress predicated on defamatory acts). Since the emotional distress claims w e re brought two years after the publication of the allegedly defamatory statements, C o u n ts Thirteen and Fourteen are dismissed as untimely. III. C O N C L U S IO N

In conclusion, the law enforcement defendants' motion for a stay is GRANTED as to those counts asserted against them ­ Counts Four, Five, Six, Seven, Eight, Nine, Ten, E le v e n , Twelve, Thirteen, and Fourteen. Further, the motions to dismiss filed by the n e w s p a p e r defendants and defendant Union County are GRANTED. Accordingly, C o u n ts One, Two, Three, Ten, Thirteen, and Fourteen are dismissed as to the newspaper d e f e n d a n ts , and all counts asserted against defendant Union County are dismissed.

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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