PEREZ v. ELIZABETH POLICE DEPARTMENT et al

Filing 23

OPINION. Signed by Judge Stanley R. Chesler on 8/14/2013. (nr, )

PEREZ v. ELIZABETH POLICE DEPARTMENT et al

Doc. 23

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRANCISCA PEREZ,
Plaintiff,
v.
ELIZABETH POLICE DEPARTMENT
et al.,
Defendants.

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Civil Action No. 12-7839 (SRC)

OPINION

CHESLER, U.S.D.J.
This matter comes before this Court on the motion to dismiss the Complaint for failure to
state a valid claim for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6), by Defendants
Herec Colon, Elizabeth Police Department, Christopher Flatley, James Malone, Officer Pevonis,
and Lawrence Smith (collectively, “Defendants.”) For the reasons stated below, the motion will
be granted.
This case arises from a civil rights dispute. The Complaint alleges that, on October 13,
2010, officers of the Elizabeth Police Department searched Plaintiff’s apartment. The Complaint
asserts claims for violation of Plaintiff’s federal constitutional rights, pursuant to 42 U.S.C. §
1983, during that search, as well as claims over false and defamatory statements made about
Plaintiff in connection with a subsequent forfeiture proceeding.
Defendants move to dismiss the Complaint on two grounds: 1) the statute of limitation
has run on Plaintiff’s § 1983 claims; and 2) the claims related to the forfeiture are barred by res
judicata.

Dockets.Justia.com

As to the statute of limitations argument, the first matter is the determination of the
relevant statute of limitation. Under Third Circuit law, “a section 1983 claim arising in New
Jersey has a two-year statute of limitations.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d
Cir. 2010).
“A statute of limitations defense is an affirmative one, and in order to undergird a
dismissal, must appear on the face of the complaint.” Benak v. Alliance Capital Mgmt. L.P., 435
F.3d 396, 400 (3d Cir. 2006). The Complaint alleges that Defendants entered Plaintiff’s
apartment on October 13, 2010. The Complaint was filed on December 26, 2012. Facts
sufficient to establish that the two-year statute of limitations has run on the § 1983 claims do
appear on the face of the Complaint. Defendants’ motion to dismiss the § 1983 claims will be
granted, and these claims in the Complaint against them will be dismissed with prejudice.
Defendants next argue that “Plaintiff’s claim for wrongful forfeiture is barred by the
doctrine of res judicata.” (Defs.’ Br. 4.) Defendants appear to read the Complaint to contain a
claim seeking to relitigate a civil forfeiture proceeding. Defendants have misread the Complaint.
In a nutshell, the Complaint complains of two things: 1) Defendants violated Plaintiff’s rights
during their search of her apartment on October 13, 2010; and 2) Defendants subsequently, on an
unspecified date, submitted false and defamatory statements about Plaintiff in connection with a
forfeiture process. As discussed, the claims involving actions on October 13, 2010 are barred by
the statute of limitations. The Complaint does not seek to relitigate the civil forfeiture action and
so this Court need not consider whether such relitigation is legally permissible.
In their reply brief, Defendants recognize that the second thrust of the Complaint is the
matter of the false and defamatory statements made about Plaintiff in connection with the civil

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forfeiture. Defendants argue that the statute of limitations bars any such claims because,
pursuant to N.J.S.A. § 2A:14-3, actions for libel and slander in New Jersey must be brought
within one year after publication. The Complaint states that Plaintiff received notice of the false
statements by January 12, 2011, and so the latest date on which the allegedly false statements
were published is January 12, 2011. Defendants contend that the one-year statute of limitations
thus ran by January 12, 2012 and had lapsed by the time Plaintiff filed the Complaint at the end
of 2012.
Although this argument is newly made in the reply brief, Plaintiff submitted three
separate sur-replies and so has had the opportunity to respond to the argument. In the sur-reply
filed July 24, 2013, Plaintiff concedes that, as to the alleged false statements, the statute of
limitations started to run in January of 2011. Plaintiff argues, incorrectly, that the limitation
period had not expired before she filed her Complaint on December 26, 2012. As Defendants
contend, the one-year period for actions premised on libel or slander had run. Plaintiff’s claims
of injury due to false and defamatory statements are barred and will be dismissed with prejudice.
Defendants have moved to dismiss the Complaint on the ground that the claims are barred
by the various statutes of limitation. This Court finds that this is apparent from the face of the
Complaint. The motion to dismiss will be granted, and the Complaint will be dismissed with
prejudice.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: August 14, 2013

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