PARK v. JOHN DOE TSIAVOS 1-10 et al
OPINION. Signed by Judge William J. Martini on 2/29/16. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-00616 (WJM)
JOHN DOE TSIAVOS 1-10, et al.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Joshua Park brings this tort action against Cho Dae Community Church
(“the Church”), Dimitri Tsiavos and his parents, Elizabeth and Leonidas Tsiavos, and five
John Doe Defendants (collectively, “Defendants”). Plaintiff alleges that he was playing
basketball in the Church’s gymnasium against Tsiavos and the John Doe Defendants, when
they made racial slurs against him and assaulted him, dislocating his jaw and causing him
to incur medical expenses of at least $79,000. Plaintiff raises a claim of premises liability
against the Church; a claim of conspiracy to interfere with his civil rights pursuant to 42
U.S.C. § 1985(3) against Dimitri Tsiavos and the John Does; claims of negligence, assault,
and battery against Dimitri Tsiavos; and a negligent supervision claim against Tsiavos’s
The Church moves for summary judgment on the grounds that the Church is
immune from suit; Dimitri Tsiavos moves for partial summary judgment as to Plaintiff’s
§1985 claim. There was no oral argument.1 Fed. R. Civ. P. 78(b). The Church’s motion
for summary judgment is GRANTED because it is immune from suit under New Jersey’s
Charitable Immunity Act. Tsiavos’s motion for summary judgment is GRANTED
because Plaintiff has not alleged a violation of a constitutionally-protected right as required
to state a claim under § 1985. The Court declines to exercise supplemental jurisdiction
over Plaintiff’s remaining state law claims; accordingly, Plaintiff’s Complaint is
DISMISSED without prejudice to refiling in state court.
The parties’ request that the Court hold oral argument on this motion is denied. See Cope v. Soc. Sec. Admin., 532
F. App’x 58, 60 (3d Cir. 2013) (“The District Court has discretion as to whether to hold a hearing.”).
The following facts are undisputed unless otherwise noted.
Plaintiff’s parents were members of the Church at the time of the incident, and
Plaintiff had attended Church services there “a couple of times.” ECF doc. 72, Ex. B (Pl.
Dep.) at 37:16-25. Plaintiff and his friends were “regulars” at the Church “to play
basketball,” and played basketball there “at least once a week.” Id. at 39:17-38:15; 41:916. Anyone, whether they were a member of the Church or not, was allowed to play
basketball at the Church. Id. at 42:14-18.
In June 2012, Plaintiff was playing basketball with a group of friends inside the
Church gymnasium. ECF doc. 39, ¶ 9. Another group of players arrived, and eventually
the two groups agreed to play a five-on-five game of basketball against each other. Id.,
¶¶ 9-11. During the course of the game, the parties engaged in “trash talking” and fouling
of other players. ECF doc. 39, Ex. B; doc. 81 at 3-4. Plaintiff alleges that Dimitri Tsiavos
kicked him in the chest area, and commented that because Plaintiff is Asian, he should
somehow be able to fend off his kicks. ECF doc. 39 at ¶ 11. Then, without provocation,
Tsiavos launched “a severe right hook upon the left jaw of [P]laintiff.” Id. Plaintiff alleges
that his jaw was dislocated and he incurred approximately $79,000 or more in medical
expenses due to the incident. Id. at ¶ 12. According to Tsiavos, Plaintiff called the
opposing team “jerks,” Tsiavos replied, “let’s go, you don’t know what you are getting
into,” and Plaintiff inquired as to whether Tsiavos knew Kung-Fu. ECF doc. 81 at 3-4.
Tsiavos replied to this inquiry by stating, “No, you are the Asian ones.” Id.
Following the incident, Plaintiff’s counsel sent letters to the Norwood Police
Department and the Bergen County Prosecutor’s Office requesting that Tsiavos and the
John Doe Defendants be charged with aggravated assault and bias crimes under New Jersey
law because they attacked Plaintiff based on his Asian status. Id. at ¶ 28. Tsiavos was
charged with aggravated assault and, after trial, the trial judge found him not guilty. ECF
doc. 81 at Ex. C. This action followed.
A. The Instant Action
In July 2013, Plaintiff filed his first amended Complaint against Defendants on the
basis of diversity jurisdiction alone. ECF doc. 20. The Court conducted jurisdictional
discovery, ECF doc. 24, and Defendants subsequently moved to dismiss the Complaint for
lack of jurisdiction, ECF doc. 27. Plaintiff cross-moved to amend his complaint, explaining
that amendment to add a federal claim (the § 1985 claim) was justified to “ensure that
jurisdiction is proper,” but also including arguments and exhibits to support his claim that
diversity jurisdiction existed. ECF doc. 31. Plaintiff’s motion to amend was granted, and
in April 2014, he filed his second amended Complaint, which is now the operative one.
ECF doc. 39.
Plaintiff raises the following claims: (1) premises liability against the Church; (2)
conspiracy to interfere with his civil rights under 42 U.S.C. § 1985(3) against Dimitri
Tsiavos and the John Doe Defendants; (3) negligence, assault, and battery against Dimitri
Tsiavos; and (4) negligent supervision against Tsiavos’s parents. Id.
The Church moves for summary judgment as to Plaintiff’s premises liability claim
against it, arguing that it is immune from suit under the New Jersey Charitable Immunity
and, in any case, was not negligent. ECF doc. 72. Tsiavos moves for partial summary
judgment as to Plaintiff’s § 1985 claim because the circumstances alleged by Plaintiff do
not constitute discrimination under § 1985. ECF doc. 81. Plaintiff opposes both motions,
and moves to strike Defendants’ papers for failure to comply with New Jersey Local Rule
56.1(a). ECF docs. 77; 82.
Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is material
if it will affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
A. Plaintiff’s Motion to Strike Defendants’ Summary Judgment Motions
Plaintiff moves to strike both Defendants’ motions for summary judgment on the
grounds that neither Defendant submitted a statement of material facts in accordance with
New Jersey Local Civil Rule 56.1(a). Plaintiff’s request is denied.
Rule 56.1 requires that, on motions for summary judgment, both the moving and
nonmoving parties shall provide the Court with a statement of all material facts not in
dispute, set forth in “separately numbered paragraphs citing to the affidavits and other
documents submitted in support of the motion.” L. Civ. R. 56.1(a). A motion
unaccompanied by “a statement of material facts not in dispute shall be dismissed.” Id.;
see also Kee v. Camden County, No. 04–0842, 2007 WL 1038828, at * 4 (D.N.J. March
30, 2007) (“A moving party’s failure to comply with Rule 56.1 is itself sufficient to deny
its motion”). However, a party’s noncompliance with the Rule may be excused in certain
instances. See Park v. Sec’y U.S. Dep’t of Veterans Affairs, 594 F. App’x 747, 751 (3d
Cir. 2014) (excusing non-compliance with technical requirements of Rule 56.1 because
movant “substantially complied” with the Rule); Vibra-Tech Engineers, Inc. v. Kavalek,
No. 08-2646, 2011 WL 111417, at *2-3 (D.N.J. Jan. 13, 2011) (excusing movant’s failure
to comply with the Rule where non-moving party also failed to comply).
Here, the Church failed to submit a separate Rule 56.1 statement, but included a
numbered Statement of Facts within its motion, with citations to the affidavits and other
documents. ECF 72, 2-4. The Court finds the Church has substantially complied with
Rule 56.1. See Park, 594 F. App’x at 751 (affirming district court’s “decision not to require
a separate Rule 56.1 statement” where Defendant “substantially complied with Rule 56.1
via its Statement of Relevant Facts.”).
Tsiavos also failed to submit a Rule 56.1 statement with his summary judgment
motion. But despite Plaintiff’s criticism of Tsiavos for this noncompliance, Plaintiff failed
to submit his own Rule 56.1 statement in opposition to Tsiavos’s motion, in accordance
with the Rule. See Ramziddin v. Speziale, No. 07–5303, 2009 WL 4827492, at * 1 (D.N.J.
Dec. 10, 2009) (stating that both parties must comply with Rule 56.1). Under these
circumstances, the Court will not deny Tsiavos’s motions on procedural grounds. See
Vibra-Tech, 2011 WL 111417 at *2-3; see also Khater v. Puzino Dairy, Inc., No. 14-4618,
2015 WL 4773125, at *3 (D.N.J. Aug. 12, 2015) (“The Third Circuit . . . prefers that cases
be decided on their merits.”) (internal citation omitted).
B. The Church’s Motion Summary Judgment
The Church argues that summary judgment should be granted in its favor because
it is immune to suit pursuant to the New Jersey Charitable Immunity Act. The Court agrees.
New Jersey’s Charitable Immunity Act bars negligence2 actions against nonprofit
corporations organized for religious, charitable, educational or hospital purposes. See N.J.
Stat. Ann. § 2A:53A-7(a). To fall within the Act, a defendant must demonstrate that: (1) it
is a charitable organization that is organized exclusively for religious, charitable,
educational, or hospital purposes; and (2) the plaintiff is a beneficiary, “to whatever
degree” of its services. See N.J. Stat. Ann. § 2A:53A-7(a)-(b); Hottenstein v. City of Sea
Isle City, 981 F. Supp. 2d 292, 294 (D.N.J. 2013). The Legislature has instructed that the
definition of a “beneficiary” should be “liberally construed so as to afford immunity to a
qualifying entity ‘in furtherance of the public policy for the protection of [such entities.]’”
Hottenstein, 981 F. Supp. 2d at 294 (internal citations omitted). For a Court to find that an
individual is not a beneficiary, the individual must be wholly “unconcerned in and
Under New Jersey law, premises liability is “a subset of general negligence law.” Peguero v. Tau Kappa Epsilon,
439 N.J. Super. 77, 88 (App. Div. 2015).
unrelated to” the benefactions of the entity. See Ryan v. Holy Trinity Evangelical Lutheran
Church, 815 A.2d 419, 431 (N.J. 2003) (citing N.J. Stat. Ann. § 2A:53A-7(b)); see also
Kostera v. Bacharach Inst. for Rehab., No. A-1991-13T4, 2015 WL 4643642, at *5 (N.J.
Super. Ct. App. Div. Aug. 6, 2015) (“plaintiff was a beneficiary if on the day in question
she was a ‘direct recipient,’ ‘to whatever degree,’ of the ‘good work’ that [the Church] was
advancing at the time. . . .”) (internal citations omitted).
Plaintiff concedes that the Church is a charitable organization, but disputes that he
was a Church beneficiary under the Act. The Court disagrees: Plaintiff is no “stranger” to
the Church, as is required to defeat immunity. See O’Connell v. State, 795 A.2d 857, 86465 (N.J. 2002) (describing the Act’s “‘beneficiary/stranger’ distinction”). Plaintiff’s
parents were members of the Church; Plaintiff had attended the Church’s religious services
in the past; and Plaintiff played basketball on a weekly basis in the Church’s gymnasium.
ECF doc. 72, Ex. B. New Jersey courts have concluded that similar contacts are sufficient
to confer beneficiary status upon an individual. For example, in Bieker v. Community
House of Moorestown, the New Jersey Supreme Court held that a child who accompanied
his father to a basketball game in a nonprofit organization’s gymnasium “was plainly a
recipient of [organization’s] ‘benefactions,’ even if only as a companion of his father and
a spectator at his father’s basketball game.” Bieker, 777 A.2d 37, 45 (N.J. 2001) (internal
citations omitted); see also Pomeroy v. Little League Baseball of Collingswood, 362 A.2d
39, 41 (N.J. Super. Ct. App. Div. 1976) (holding that non-profit baseball league was
immune for injuries sustained by spectator at game).
And, a Plaintiff need not be a beneficiary of a Church’s religious works to fall within
the Act. In Ryan v. Holy Trinity Evangelical Lutheran Church, the Court held that a woman
attending a nonprofit group’s meeting at a church was a beneficiary of the church,
explaining that “[b]y supporting social outreach groups that enriched the life of the
community at large, [the Church] fell well within the modern view, now sixty years old,
that the good works of churches are not limited to parochial concerns.” 815 A.2d at 430;
see also Loder v. St. Thomas Greek Orthodox Church, 685 A.2d 20, 23 (N.J. Super. Ct.
App. Div. 1996) (holding that non-member who paid a fee to attend church food festival
was beneficiary of church’s charitable works). Similarly, in Anasiewicz v. Sacred Heart
Church, the court held that a non-parishioner wedding guest was the beneficiary of the
charitable benefactions of a Church. See Anasiewicz, 181 A.2d 787, 790-91 (N.J. Super.
Ct. App. Div. 1962); see also Peacock v. Burlington County Historical Society, 230 A.2d
513, 515 (N.J. Super. Ct. App. Div. 1967) (holding that plaintiff’s casual viewing of
exhibits in historical society building while waiting for her husband was sufficient to
characterize her as a beneficiary of society’s charitable works).
Plaintiff contends that he should not be deemed a beneficiary because he was neither
a member of nor an invitee to the Church. But these facts are not dispositive. New Jersey
case law does not require that a church beneficiary be a member of the congregation: to the
contrary, non-parishioners are deemed beneficiaries under the law. See Loder, 685 A.2d
at 23; Anasiewicz, 181 A.2d at 790-91. And, in his brief, Plaintiff concedes that “no Church
policy for the use of the gym is implemented.” Br. 11-12. Thus, by Plaintiff’s own account,
the Church’s gymnasium was open to the public and not limited to invitees. Cf., Ryan, 815
A.2d at 430 (2003) (“the good works of churches are not limited to parochial concerns.”).
Because Plaintiff was a “direct recipient” of the Church’s “good works” at the time of his
injury, see Kostera, 2015 WL 4643642, at *5, the Court finds that Plaintiff was a
beneficiary for purposes of the Act. The Court therefore does not reach the issue of whether
the Church was negligent and GRANTS the Church’s summary judgment motion.
C. Tsiavos’s Motion for Summary Judgment
Dimitri Tsiavos claims that he is entitled to partial summary judgment as to the §
1985 claim against him.3 The Court agrees that the claim should be dismissed, albeit on
different grounds than those set forth in Tsiavos’s motion.
To survive summary judgment on a 42 U.S.C. § 1985(3) claim, the plaintiff must
allege “(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus
designed to deprive, directly or indirectly, any person or class of persons ... [of] the equal
protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to
person or property or the deprivation of any right or privilege of a citizen of the United
States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997); Ridgewood Board of Education
v. N.E., 172 F.3d 238, 253-54 (3d Cir.1999).
“Despite its application to private conspiracies, § 1985(3) was not intended to
provide a federal remedy for ‘all tortious, conspiratorial interferences with the rights of
others,’ or to be a ‘general federal tort law.’” Farber v. City of Paterson, 440 F.3d 131,
135 (3d Cir. 2006) (internal citations omitted); see also Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263, 268 (1993) (holding that intentionally depriving women from
receiving abortion services did not fall under § 1985(3)). To date, the Supreme Court has
only recognized two rights that are protected against private encroachment: “the right to be
free from involuntary servitude and the right to interstate travel.” Brown v. Philip Morris
Inc., 250 F.3d 789, 805 (3d Cir. 2001).
Even assuming that all of the facts alleged in Plaintiff’s Complaint are true, i.e.,
that Defendant Tsiavos and the John Doe Defendants conspired to assault Plaintiff in the
Church gymnasium because of his Asian race, Plaintiff has not alleged a violation of a
constitutionally protected right that falls under § 1985(3). See Brown, 250 F.3d at 805;
Magnum v. Archdiocese of Philadelphia, 253 F. App’x 224, 230-31 (3d Cir. 2007)
(holding that Plaintiff’s “substantive due process rights to bodily integrity” did not fall
within § 1985(3)); Shine v. TD Bank Fin. Grp., No. CIV 09-4377, 2010 WL 2771773, at
*6 (D.N.J. July 12, 2010) (holding that Plaintiff’s complaint “fails for the simple reason
Although Defendant’s motion indicates that he seeks summary judgment on behalf of all Defendants Tsiavos on all
claims, his brief only argues for summary judgment regarding the conspiracy claim. Accordingly, Tsiavos’s motion
is treated by the Court as a motion for partial summary judgment.
that Plaintiff has not alleged any colorable violation of his right to be free from
involuntary servitude or the right to interstate travel”). Accordingly, judgment as a
matter of law as to Plaintiff’s conspiracy claim is GRANTED in favor of Tsiavos.
D. Plaintiff’s Remaining Claims
The Court may address subject matter jurisdiction sua sponte at any time. See
Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Here, the Court has dismissed Plaintiff’s only
claim arising under federal law, depriving the Court of original jurisdiction under 28 U.S.C.
§ 1331. As described below, the Court has determined that diversity jurisdiction does not
exist under 28 U.S.C. § 1332(a). Because Plaintiff’s remaining claims arise under state
law, the Court will refrain from exercising supplemental jurisdiction over these claims
under 28 U.S.C. § 1367.
i. Diversity Jurisdiction4
For purposes of diversity jurisdiction, citizenship is synonymous with domicile, and
“the domicile of an individual is his true, fixed and permanent home and place of
habitation. It is the place to which, whenever he is absent, he has the intention of returning.”
Vlandis v. Kline, 412 U.S. 441, 454 (1973). In determining an individual’s domicile, a
court considers several factors, including “declarations, exercise of political rights,
payment of personal taxes, house of residence, and place of business.” Krasnov v. Dinan,
465 F.2d 1298, 1301 (3d Cir. 1972) (internal quotation omitted). “Other factors to be
considered may include location of brokerage and bank accounts, location of spouse and
family, membership in unions and other organizations, and driver’s license and vehicle
registration.” McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006).
“[A] domicile once acquired is presumed to continue until it is shown to have been
changed.” Washington v. Hovensa LLC, 652 F.3d 340, 345 (3d Cir. 2011) (internal
quotations omitted). A party claiming to have a new domicile must: (1) “rebut the
presumption in favor of an established domicile”; and (2) prove by a preponderance of the
evidence that “a change of domicile occurred, creating diversity of citizenship.” McCann,
458 F.3d at 288-89.
In this case, Defendants are all New Jersey citizens. Plaintiff alleges that diversity
jurisdiction exists because he has changed his domicile from New Jersey (his home state)
to Syracuse, New York (where he is currently enrolled in college). But, applying to factors
outlined in Krasnov and McCann, Plaintiff has neither rebutted the presumption in favor
of New Jersey as his domicile, nor proved by a preponderance of evidence that he has
changed his domicile to New York. Plaintiff is listed as a resident dependent in his parents’
most recent New Jersey state tax returns. ECF doc. 27. Plaintiff renewed his New Jersey
The Court relies upon the claims and exhibits submitted by the parties in connection with Defendants’ first
motion to dismiss the Complaint for lack of jurisdiction, ECF doc. 27, and Plaintiff’s cross-motion to amend his
Complaint, ECF doc. 31, for its jurisdictional determination.
driver’s license as recently as January of 2013 (the same month this action was first filed),
and has not obtained a New York driver’s license. Id. In both the incident report and
Plaintiff’s recorded statement to the police made in connection with the underlying
altercation, Plaintiff identified his parents’ New Jersey home address as his residence. Id.,
Ex. C-D. Finally, he is not registered to vote in New York and has not paid taxes in New
York. ECF doc. 27.
Plaintiff claims that, upon graduation, he “intends to pursue his career in marketing
in New York City.” ECF doc. 31-1, 7. But this singular statement is not enough to rebut
the presumption in favor of New Jersey as his domicile, or demonstrate by a preponderance
of the evidence that a change of domicile to New York has occurred. See Scoggins v.
Pollock, 727 F.2d 1025 (11th Cir. 1984) (college student in school in South Carolina who
“had not positively decided upon her residence after graduation” was a domiciliary of her
home state, Georgia); Bradley v. Zissimos, 721 F. Supp. 738, 740 (E.D. Pa. 1989) (“It is
generally presumed that a student who attends a university in a state other than the student’s
‘home’ state intends to return ‘home’ upon completion of studies.”). Compare AliceaRivera v. SIMED, 12 F. Supp. 2d 243, 246 (D. Puerto Rico 1998) (holding that although
the college student had a driver’s license, voter’s registration, and part-time job in Ohio,
he was still considered a citizen of Puerto Rico because Plaintiff did not own or rent any
property, did not pay a telephone or utilities bill, did not have any post-graduate
commitments in Ohio, or any job in Ohio that would indicate steps towards a permanent
career), with Doe v. Schwerzler, No. CIV.A. 06-3529, 2008 WL 1781986, at *3 (D.N.J.
Apr. 17, 2008) (Kentucky college student who had registered to vote in Kentucky; had a
Kentucky driver’s license and had surrendered her New Jersey driver’s license; had an
open bank account in Kentucky; and paid Kentucky state income taxes had established
Kentucky as her new domicile). Accordingly, the Court finds no diversity of citizenship
ii. Supplemental Jurisdiction Over State Law Claims
Because the Court no longer has original or diversity jurisdiction over the case, the
Court will refrain from exercising supplemental jurisdiction over Plaintiff’s state law
claims. 28 U.S.C. § 1367 provides that a district court may decline to exercise
supplemental jurisdiction over a claim where:
1. the claim raises a novel or complex issue of state law,
2. the claim substantially predominates the claim or claims over which the district
court has original jurisdiction
3. the district court has dismissed all claims over which it has original jurisdiction,
4. in exceptional circumstances, there are other compelling reasons for declining
§ 1367(c). “[I]n the usual case in which all federal-law claims are eliminated before trial,
the balance of factors … will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Now that the Court has dismissed Plaintiff’s federal claim, and Plaintiff has failed to
establish diversity jurisdiction, all that remains from his complaint are his state law
negligence, assault, and battery claims. Pursuant to § 1367, the Court deems it appropriate
to DISMISS Plaintiff’s state law claims without prejudice to his right to refiling the
claims in state court.
For the above reasons, Defendants’ motions for summary judgment are GRANTED
and Plaintiff’s Complaint is DISMISSED without prejudice to refiling in state court.
An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: February 29, 2016
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