RAGUSA v. THE PORT AUTHORITY OF NY & NJ et al
MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 7/31/2014. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE PORT AUTHORITY OF NY & NJ,
Civil Action No. 13-6093 (MAS)(TJB)
SHIPP, District Judge
This matter comes before the Court upon the Port Authority of New York and New Jersey’s
(“Defendant” or “Port Authority”) motion to dismiss pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). (Def.’s Br., ECF No. 8-7.) Plaintiff Joan Ragusa (“Plaintiff” or “Ms. Ragusa”) filed
opposition (Pl.’s Opp’n, ECF No. 11) and Defendant replied (Def.’s Reply, ECF No. 13). The Court
has carefully considered the submissions and has decided the motion without oral argument pursuant
to Local Civil Rule 78.1. For the following reasons, and other good cause shown, Defendant’s motion
BACKGROUND AND PROCEDURAL HISTORY
On November 26, 2011, Ms. Ragusa was a patron at Liberty International Airport in Newark,
New Jersey. (Am. Compl., ECF No. 2, ¶ 6.) En route to St. Maarten, Plaintiff passed through security
screening at Terminal A-3, which was managed by the United States Department of Homeland
Security’s Transportation Security Administration (“TSA”), another Defendant in this action. (Id.
¶¶ 6-7.) After passing through security, Plaintiff turned around and put on her back brace. She then
picked up her shoes and other belongings and, again, turned around in the same direction to put them
on. As she turned around, however, Ms. Ragusa “tripped and fell over a TSA container cart that was
in the middle of the walkway.” (Id. ¶ 7; see also id., Ex. A.) As a result of her fall, Ms. Ragusa sustained
“serious and permanent bodily injuries” to her knees, legs, back and neck, and has incurred medical
expenses and other damages. (Id. ¶ 16.) Plaintiff alleges that these injuries are the result of Defendant’s
negligence. (Id. ¶ 15.)
Based on the foregoing allegations, on February 27, 2012, Plaintiff sent a Notice of Claim to
the Port Authority, which was received by Defendant on March 1, 2012. (Id. ¶ 11; Facchini Cert., ECF
No. 8-1, Ex. C; Cullen Cert., ECF No. 11-1, Ex. B.) 1 Thereafter, the Port Authority referred Plaintiff’s
claim to Defendant AFCO/Avports Management, LLC (“AFCO”). On March 27, 2012, a claims
representative from Chartis Aerospace, insurers for AFCO, sent correspondence to Plaintiff’s attorney
stating that Plaintiff’s claim should be directed to the TSA. (Am. Compl. ¶ 13, Ex. C.) Following up
on its initial claim referral, on May 15, 2012, the Port Authority sent correspondence to Defendant
AFCO stating that Ms. Ragusa’s claim “falls within the provision of [AFCO’s] agreement (ANB-984)
with the Port Authority” and suggesting that AFCO handle the claim going forward. (Am. Compl.
¶ 12, Ex. B.)
On November 21, 2012, Plaintiff commenced an action against Defendants AFCO, the Port
Authority, and the TSA (collectively, “Defendants”) in the Superior Court of New Jersey, Ocean
County (the “State Action”) stemming from her November 26, 2011, incident at the airport. (Facchini
Cert., Ex. D; Cullen Cert., Ex. E.) On February 27, 2013, before any Defendant responded to the State
Action complaint, Plaintiff voluntarily dismissed the complaint without prejudice. (Facchini Cert., Ex.
Exhibits cited by the Court are documents attached to or explicitly relied upon in the Amended
Complaint and filings from Plaintiff’s previous state court proceeding. See In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (a document “integral to or explicitly relied
upon” in a complaint may be considered on a motion to dismiss); Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (on a motion to dismiss, courts may generally
consider allegations in the complaint, exhibits attached to the complaint, and the available public
record); Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 292 (D.N.J. 2009) (courts may consider
public documents and prior judicial proceedings on a motion to dismiss) (citing S. Cross Overseas
Agencies, Inc. v. Wah Kwong Shipping Grp., Ltd., 181 F.3d 410, 426 (3d Cir. 1999)).
E.) On the same day, Plaintiff filed a Federal Tort Claim Notice with the TSA, pursuant to the Federal
Tort Claims Act. (Am. Compl. ¶ 14.) On April 30, 2013, the TSA sent correspondence to Plaintiff’s
counsel acknowledging its receipt of Plaintiff’s Notice of Claim and providing that Plaintiff may file
her claim in federal court if it is denied or unresolved within six months. (Cullen Cert., Ex. F.)
More than six months elapsed without denial or resolution of Plaintiff’s claim against the TSA.
(Am. Compl. ¶ 14.) On October 11, 2013, Plaintiff filed her Complaint and Amended Complaint in
this Court against all three Defendants. 2
STANDARD OF REVIEW
A district court conducts a three-part analysis when considering a Rule 12(b)(6) motion.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the elements
a plaintiff must plead to state a claim.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Second, the court must accept as true all of a plaintiff’s well-pleaded factual allegations and construe
the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). Once the well-pleaded facts have been identified and the conclusory allegations
ignored, a court must determine whether the “facts alleged in the complaint are sufficient to show that
plaintiff has a ‘plausible claim for relief.’ ” Id. at 211 (quoting Iqbal, 556 U.S. at 679). The defendant
bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744,
750 (3d Cir. 2005).
Defendant moves to dismiss the Amended Complaint on the grounds that Plaintiff failed to
comply with the requirements of N.J. Stat. Ann. § 32:1-163, which sets forth the conditions upon which
a plaintiff may bring suit against the Port Authority.
Plaintiff filed an Amended Complaint to correct scrivener’s errors in the Complaint.
Prior to 1950, the Port Authority, as a bi-state agency of New Jersey and New York, “enjoyed
complete sovereign immunity from suits of any sort in the courts of those states.” Campanello v. Port
Auth. of N.Y. & N.J., 590 F. Supp. 2d 694, 701 n.10 (D.N.J. 2008) (internal quotations omitted). The
Port Authority waived its immunity by statutes in both states, subject to certain conditions: (1) “[a]ny
tort action premised on state law and brought pursuant to Section 32:1-163, must be commenced
within one year after the cause of action therefore shall have accrued[,]” and (2) “a notice of claim
shall have been served upon the Port Authority by or on behalf of the plaintiff or plaintiffs at least
sixty days before such suit, action or proceeding is commenced.” Id. at 701; N.J. Stat. Ann. § 32:1163.
As the New Jersey Appellate Division has explained, “[a]s an act in derogation of the
common law, these requirements must be strictly construed as conditions precedent to the bringing
of suit. Unlike a statute of limitations, the requirements are jurisdictional.” Matthews v. Port of
N.Y. Auth., 163 N.J. Super. 83, 85 (Law Div. 1978), aff’d, 171 N.J. Super. 38 (App. Div. 1979);
accord Mullen v. Port Auth. of N.Y. & N.J., 100 F. Supp. 2d 249, 254-55 (D.N.J. 1999).
The Port Authority does not dispute Plaintiff’s compliance with the 60-day notice of claim
requirement. (Def.’s Reply 2.) Instead, it contends that Plaintiff has not met the requirement of
commencing an action within one year from the date the incident at the airport occurred, depriving
the Court of subject matter jurisdiction of any claims against the Port Authority. (Def.’s Br. 1, 35.)
Plaintiff asserts, “in the instant case the ‘jurisdictional’ requirement that [the] Port Authority
be sued within one year should be deemed inapplicable due to its multiple notices of the claim before
the one year expired.” (Pl.’s Opp’n 5.) In Plaintiff’s view, her claim against the Port Authority should
survive because: (1) she has “substantially complied” with the notice requirement of N.J. Stat. Ann.
§ 32:1-163; and (2) Port Authority has not demonstrated that it has been prejudiced by Plaintiff’s
substantial compliance. (Id. at 4-6.) 3
It is clear that Plaintiff did not strictly comply with the statute because she commenced this
action on October 11, 2013, nearly two years after her cause of action accrued on November 26, 2011.
See Campanello, 590 F. Supp. 2d at 701 (dismissing plaintiff’s claims against the Port Authority
because the cause of action was filed over two years after it accrued); Doll v. Port Auth. Tran-Hudson
Corp., 92 F. Supp. 2d 416, 423 (D.N.J. 2000) (dismissing plaintiff’s tort claim as time-barred because
it was filed months after the expiration of the one-year time period). However, Plaintiff appears to have
met the requirements of § 32:1-163 when she commenced the State Action—on November 21, 2012—
before the one-year deadline expired. According to Plaintiff, after receiving correspondence from the
TSA stating that she needed to comply with the Federal Tort Claims Act, she dismissed the State Action
and filed the instant action after waiting to hear from the TSA for six months. (Pl.’s Opp’n 2; Am.
Comp. ¶ 14.) Therefore, the Court must consider whether the doctrine of substantial compliance may
be applied under these circumstances, so that Plaintiff may sustain her claim against the Port Authority.
The purpose of the doctrine of substantial compliance “is to avoid the harsh consequences that
flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.”
Hernandez v. Cullison, No. 05-3038 (FLW), 2006 WL 1804579, at *13 (D.N.J. June 26, 2006) (citing
Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 352 (2001)). “[H]owever[,] not every non-complying
technical act is ‘salvageable’ by substantial compliance.” Avila v. Aramark Corp., No. 10-00326
Plaintiff also argues that Defendant’s motion to dismiss is premature until all parties have joined the
matter. (Pl.’s Opp’n 3.) At the time Plaintiff filed her opposition, the TSA had been served but had not
yet answered the Amended Complaint. The TSA filed its answer on February 5, 2014, so Plaintiff’s
argument is now moot. (TSA Ans., ECF No. 14.)
(FLW), 2010 WL 3025169, at *3 (D.N.J. July 30, 2010) (citations omitted). In order to overcome a
technical error, a non-complying party must show: (1) the lack of prejudice to the defending party;
(2) a series of steps taken to comply with the statute involved; (3) a general compliance with the
purpose of the statute; (4) a reasonable notice of petitioner’s claim; and (5) a reasonable explanation
why there was not strict compliance with the statute. Bernstein v. Board of Trustees, 151 N.J. Super.
71 (App. Div. 1977); Avila, 2010 WL 3025169, at *3 (citing Bernstein).
As Plaintiff correctly asserts, New Jersey courts have consistently applied the substantial
compliance doctrine to remedy technical defects with the notice requirement of § 32:1-163. See Zamel
v. Port Auth., 56 N.J. 1, 6-7 (1970) (resorting to the doctrine of substantial compliance to excuse the
failure of plaintiff to file a timely notice of claim with the Port Authority where it had in hand, within
the 60-day period provided by statute, substantially all of the information that would have been
provided in the notice); Santiago v. New York & New Jersey Port Auth., 429 N.J. Super. 150, 162 (App.
Div. 2012) (recognizing the doctrine of “substantial compliance” as applied to the notice requirement,
but affirming dismissal of plaintiff’s complaint because plaintiff had no contact with the Port Authority
before filing suit); Williams v. Nat’l Car Rental Sys., Inc., 225 N.J. Super. 164, 170-71 (Law Div. 1988)
(per curiam) (distinguishing Zamel and barring plaintiff’s suit against the Port Authority because “no
notice of claim was given to the Port Authority before suit was instituted”) (emphasis in original).
Although Defendant asserts that “at no time has less than strict compliance with the [one-year
filing] requirement . . . been allowed” (Def.’s Br. 4), recent case law suggests that “substantial
compliance” with the deadline may be sufficient to sustain a claim against the Port Authority. See
Lafever v. NY/NJ Port Auth., No. L-1943-11, 2013 WL 3867185, at *3 (N.J. App. Div. July 29, 2013).
In Lafever, an unpublished decision, 4 the New Jersey Appellate Division held that the holding in Zamel
According to New Jersey state court local rules, “[n]o unpublished opinion shall constitute precedent
or be binding upon any court.” N.J. Prac. R. 1:36-3. However, unpublished state court opinions may
be considered by a federal court as persuasive authority. See, e.g., Kerrigan v. Otsuka Am. Pharm.,
“applies to the one-year statute of limitations as well as the notice-of-claim requirement in N.J.S.A.
32:1–163.” Id. at *3. In that case, Mr. Lafever filed suit against the Port Authority and other defendants
eleven days after the expiration of the deadline under § 32:1-163. The Port Authority moved to dismiss,
but plaintiff maintained that he had substantially complied with the statute. The trial court denied the
Port Authority’s motion and held that plaintiff had substantially complied with the one-year
requirement because there was confusion regarding what entity should be sued. On appeal, the Port
Authority argued that the doctrine of substantial compliance could not be applied to the one-year time
requirement. After discussing Zamel and concluding that its holding applies to the one-year
requirement, the court nevertheless reversed, reasoning that plaintiff had not substantially complied
with the statute.
In light of Lafever and the circumstances of this case, the Court finds that Defendant has not
met its burden under Rule 12(b)(6). As such, the Court declines to dismiss Plaintiff’s claim until the
parties have addressed the following issues: whether the doctrine of substantial compliance is
applicable to the one-year filing deadline under N.J. Stat. Ann. § 32:1-163 and, if so, whether Plaintiff
has substantially complied with it.
Inc., 560 F. App’x 162, at *3 n.4 (3d Cir. 2014) (“[Plaintiff] argues that we cannot consider unpublished
opinions when applying New Jersey law, given state court rules that bar such use. While we are not
bound by unpublished state court decisions, we may look to them as persuasive authority when
ascertaining state law.” (citing Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145, 152 & n.6 (3d
Cir.1988)); Steele v. Aramark, 535 F. App’x 137, 142 (3d Cir. 2013) (“While we are not bound by this
unpublished decision of the Appellate Division of the Superior Court of New Jersey, we are persuaded
by it.”); Marracco v. Kuder, No. 08-713 (NLH), 2009 WL 235469, at *3 n.3 (D.N.J. Jan. 30, 2009)
(noting that “[t]he comment to . . . Rule [1:36-3] recognizes that ‘[m]any opinions by appellate and
trial courts are unpublished or stamped as unpublished opinions but are available and have been relied
upon by both the bench and bar.’ ”).
For the reasons set forth above, and other good cause shown, it is hereby ordered that
Defendant’s motion to dismiss is denied. An Order will be entered consistent with this Opinion.
/s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
DATED: July 31, 2014
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