LOPEZ et al v. MONMOUTH COUNTY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS et al

Filing 30

OPINION filed. Signed by Judge Brian R. Martinotti on 4/26/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
__________________________________________
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Plaintiffs,
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v.
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MONMOUTH COUNTY SOCIETY
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FOR THE PREVENTION OF CRUELTY
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TO ANIMALS, et al.,
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Defendants.
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__________________________________________:

EDWIN LOPEZ and MERCEDES LOPEZ,

Civ. Action No. 16-2956-BRM-DEA

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are the following motions: (1) Defendants Monmouth County Society
for the Prevention of Cruelty to Animals (“MCSPCA”) and Matthew Giuliano’s (“Giuliano”)
(collectively, “Monmouth Defendants”) Motion to Dismiss (ECF No. 17), pursuant to Federal Rule
of Civil Procedure 12(b)(6); and (2) Defendant Victor Amato’s (“Amato”) Motion to Dismiss
(ECF No. 20), pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 Plaintiffs Edwin Lopez and
Mercedes Lopez (collectively, “Plaintiffs”) oppose both Motions. (ECF No. 21.) Pursuant to
Federal Rule of Civil Procedure 78(b), this Court did not hear oral argument. For the reasons set
forth herein, the Motions to Dismiss are GRANTED.

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On March 16, 2017, this Court granted motions to dismiss in a case in which Plaintiffs Edwin
and Mercedes Lopez brought claims stemming from a different dispute against several defendants,
including Monmouth Defendants and Amato. Lopez v. DiDonato, 16-cv-02939 (D.N.J. Mar. 16,
2017) Slip Op.

I. BACKGROUND
For the purposes of these Motions to Dismiss, the Court accepts the factual allegations in
the Amended Complaint (ECF No. 14) as true and draws all inferences in the light most favorable
to Plaintiff. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
Mercedes Lopez is a volunteer at the animal rescue agency Perth Amboy Happy Homes
Shelter (“Happy Homes”). (ECF No. 14 at ¶ 1.) As part of her volunteer work, she temporarily
houses and cares for abandoned animals in the home she shares with her husband, Edwin Lopez,
in Howell, New Jersey. (Id. at ¶ 2.) When fostering animals, Mercedes Lopez consults with
veterinarians and provides medical care as needed to the animals with the goal that they be adopted.
(Id. at ¶ 3.) Mercedes Lopez participated in adoption events at PetSmart retail locations, on behalf
of Happy Homes, at which the animals she fostered were offered for adoption. (Id. at ¶¶ 5-6.)
On or around November 12, 2011, Mercedes Lopez conducted an adoption event at the
PetSmart in Manalapan, New Jersey. (Id. at ¶¶ 9-35.) A veterinarian cleared all of the dogs offered
for adoption before the event. (Id. at ¶ 9.) Among the approximately ten (10) dogs adopted at the
event was a dog named Nugget. (Id. at ¶¶ 8, 10.) After the event, Nugget exhibited symptoms of
Parvovirus and was euthanized. (Id. at ¶ 11.) Nugget’s owners contacted the MCSPCA and spoke
to Giuliano, who was an officer of the MCSPCA, Law Enforcement Division. (Id. at ¶¶ 12-13.)
Amato was the chief of the MCSPCA at all times relevant to this case and was Giuliano’s superior.
(Id. at ¶¶ 11, 31.)
Giuliano began an investigation and contacted everyone who adopted pets at the adoption
event. (Id. at ¶¶ 15-16.) Giuliano learned four (4) other dogs adopted at the event became ill but

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fully recovered. (Id. at ¶ 17.) Following his investigation, Giuliano issued five (5) summonses 2 to
Mercedes Lopez for depriving an animal of sustenance in violation of N.J.S.A. 4:22-17(a)(1) and
selling an animal with a contagious disease in violation of N.J.S.A. 4:22-26(l). (Id. at ¶ 19); State
v. Lopez, No. A-1142-13T1, 2014 WL 8086429, at *1 (N.J. Super. Ct. App. Div. Mar. 9, 2015).
Mercedes Lopez and Giuliano agreed to a plea bargain, which was ultimately withdrawn. (Id. at
¶¶ 20-23.) Plaintiffs assert Mercedes Lopez agreed to the plea bargain in reliance on Giuliano’s
false statements that she could retain her license as an animal control officer despite the guilty
plea. (Id. at ¶ 21.) Upon learning she would lose her license due to the guilty plea, Mercedes Lopez
sought and received the court’s permission to withdraw her plea and proceed to trial. (Id. at ¶¶ 2223.)
Three (3) of the charges were dismissed at trial, Mercedes Lopez was found not guilty of
selling an animal with contagious disease after a trial de novo in Monmouth County Superior
Court, and she was found guilty of depriving an animal of sustenance. (Id. at ¶¶ 24-25.) Mercedes
Lopez appealed the guilty verdict to the Appellate Division, which reversed the verdict and
remanded the matter to Superior Court for dismissal of the charge. (Id. at ¶¶ 26-27.) Plaintiffs
contend Giuliano’s investigation was a “fishing expedition” aimed at “soliciting complaints
against [Mercedes Lopez].” (Id. at ¶ 30.) Plaintiffs further contend Giuliano bore personal
animosity for Mercedes Lopez rooted in several years of disputes between the two over Giuliano’s
investigations of Happy Homes. (Id. at ¶¶ 45-52.)
Plaintiffs allege Giuliano and Amato violated her civil rights by treating her differently
during their investigation because she is a Hispanic woman. (Id. at ¶¶ 36, 40, and Count Six.)

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Monmouth Defendants contend Giuliano issued six (6) summonses, not five (5). (ECF No. 17 at
8.) However, the discrepancy is immaterial to these Motions.
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According to Plaintiffs, “newspaper articles published in March 2015” revealed “Amato was
accused of publishing via Twitter and text message, various racist and sexist message [sic] to his
employees . . . .” (Id. at ¶ 33.) Plaintiffs assert, prior to March 2015, they “had no reason to have
knowledge of” Amato’s allegedly racist and sexist biases. (Id. at ¶ 35.)
Plaintiffs also contend at some time between November 20, 2014, and November 20, 2015,
Amato and/or Giuliano told Mercedes Lopez’s associates she was an animal abuser and
encouraged the associates to withhold donations of food from her. (Id. at ¶¶ 41, 43.) Plaintiffs
claim these defamatory comments caused Mercedes Lopez to suffer emotional and financial
damages, as well as harm to her reputation. (Id. at ¶ 44.) Plaintiffs maintain Giuliano’s
investigation and the related incidents have caused “tremendous strain” on their marriage and led
Edwin Lopez to “suffer[] the loss of the comfort, companionship and services of [Mercedes] Lopez
. . . .” (Id. at ¶¶ 54-55 and Count Seven.)
Plaintiffs commenced this action on November 23, 2015, in the Superior Court of New
Jersey, Law Division, Monmouth County. (ECF No. 1-1.) On May 24, 2016, the case was removed
to this Court by Monmouth Defendants. (ECF No. 1.) On June 17, 2016, Monmouth Defendants
moved to dismiss the claims against them, pursuant to Rule 12(b)(6) (ECF No. 11), and on June
25, 2016, Amato did the same. (ECF No. 13.)
Rather than oppose the pending Motions to Dismiss, on July 18, 2016, Plaintiffs filed an
Amended Complaint asserting the following claims against Defendants: (1) claims by Mercedes
Lopez against the Monmouth Defendants and Amato for selective enforcement of the law (Count
One); (2) claims by Mercedes Lopez against the Monmouth Defendants and Amato for slander
and defamation (Count Two); (3) claims by Mercedes Lopez against Monmouth Defendants and
Amato for selective enforcement of the law (Count Three); (4) claims by Mercedes Lopez against

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Monmouth Defendants and Amato for malicious prosecution (Count Four); (5) claims by
Mercedes Lopez against Giuliano for “falsely certifying to summonses” (Count Five); 3 (6) claims
by Mercedes Lopez against Monmouth Defendants and Amato for selective enforcement of the
law (Count Six); and (7) claims by Plaintiffs against all Defendants for wrongful and negligent
acts, resulting in Plaintiffs’ loss of consortium, loss of society, affection, assistance, and conjugal
fellowship, all to the detriment of their marital relationship (Count Seven). On August 1, 2016,
Monmouth Defendants filed their Motion to Dismiss the Amended Complaint, and on August 10,
2016, Amato did the same.
II. LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is “required to
accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in
the light most favorable to the [plaintiff].” Phillips, 515 F.3d at 228. “[A] complaint attacked by
a . . . motion to dismiss does not need detailed factual allegations.” Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the complaint are true, those
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.

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The Court will analyze the claim for falsely certifying to summonses as a claim for selective
enforcement of the law or, alternatively, as a claim for malicious prosecution.
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—’that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DECISION
A. Selective Enforcement Claims (Counts One, Three, Five, and Six)
Monmouth Defendants and Amato both argue several of the claims against them should be
dismissed, because, among other reasons, they are barred by the relevant statutes of limitations.
Typically, “the Federal Rules of Civil Procedure require a defendant to plead an affirmative
defense, like a statute of limitations defense, in the answer, not in a motion to dismiss.” Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In the Third Circuit, however, a defendant may succeed
on a motion to dismiss on the basis of statute of limitations, “if the time alleged in the statement

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of a claim shows that the cause of action has not been brought within the statute of limitations.”
Id. (quoting Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)).
Plaintiffs bring claims against Monmouth Defendants and Amato under 42 U.S.C. § 1983
for alleged violations of their rights under the United States Constitution (Count One and Counts
Three to Six). Because there is no federal statute of limitations for § 1983, courts must apply the
most appropriate or analogous state statute of limitations. Dique v. N.J. State Police, 603 F.3d 181,
185 (3d Cir. 2010). A § 1983 claim is governed by the applicable state’s statute of limitations for
personal injury claims. Id. In New Jersey, personal injury claims are subject to a two-year statute
of limitations. N.J.S.A. 2A:14-2(a); Dique, 603 F.3d at 185. Indeed, the parties agree the relevant
statutes of limitations as to Plaintiffs’ § 1983 claims is two years. Since Plaintiffs filed their
Complaint on November 23, 2015, if any of their claims accrued prior to November 23, 2013, they
will be barred by the two-year statute of limitations for personal injury claims.
Federal law governs a federal cause of action’s accrual date. Kach v. Hose, 589 F.3d 626,
634 (3d Cir. 2009). Under federal law, a claim accrues when the facts which support the claim
reasonably should have become known to the plaintiff. Sameric Corp. v. City of Phila., 142 F.3d
582, 599 (3d Cir. 1998); Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 507 (3d Cir. 2006) (quoting
Mathews v. Kidder Peabody & Co., 260 F.3d 239, 252 (3d Cir. 2001)); see also Large v. Cty. of
Montgomery, 307 F. App’x 606, 606 (3d Cir. 2009). “The determination of the time at which a
claim accrues is an objective inquiry; [courts] ask not what the plaintiff actually knew but what a
reasonable person should have known.” Kach, 589 F.3d at 634. Importantly, accrual is not tied to
whether the potential claimant knew or should have known that the injury constitutes a legal
wrong. Giles v. City of Phila., 542 F. App’x 121, 123 (3d Cir. 2013) (citing Sandutch v. Muroski,
684 F.2d 252, 254 (3d Cir. 1982)). Rather, “a cause of action accrues when the fact of injury and

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its connection to the defendant would be recognized by a reasonable person.” Kriss v. Fayette Cty.,
827 F. Supp. 2d 477, 484 (W.D. Pa. 2011) aff’d, 504 F. App’x 182 (3d Cir. 2012). Accordingly,
“[a]s a general matter, a cause of action accrues at the time of the last event necessary to complete
the tort, usually at the time the plaintiff suffers an injury.” Kach, 589 F.3d at 634.
Here, under the facts alleged, Plaintiffs’ § 1983 claims against Monmouth Defendants and
Amato for selective enforcement of the law accrued more than two (2) years before Plaintiffs filed
the Complaint. While the Amended Complaint does not allege the date Giuliano issued the
summonses, which concluded his investigation, Mercedes Lopez’s trial ended on May 20, 2013,
“[a]fter several days of trial over several months . . . .” Lopez, 2015 N.J. Super. Unpub. LEXIS
481, at *1. It follows, then, Giuliano issued the summonses months before November 23, 2013,
the date by which any claims would be untimely in the November 23, 2015 Complaint.
Plaintiffs argue under the discovery rule their selective enforcement claims did not accrue
upon issuance of the summonses, because the summonses alone did not put them on notice of the
violation. (ECF No. 21-1 at 9-10.) Rather, Plaintiffs contend their claims arose in March 2015,
when they read news reports of Amato’s allegedly racist and sexist views, which put them on
notice of their claims.
Plaintiffs rely on Dique, which held a “selective-enforcement claim will [typically] accrue
at the time that the wrongful act resulting in damages occurs,” but under certain circumstances a
plaintiff may be reasonably unaware that he has been subject to selective enforcement, and
therefore injured. Dique, 603 F.3d at 188. In such circumstances, the selective enforcement claim
does not accrue until the plaintiff becomes aware that he has been the victim of selective
enforcement. Id. Plaintiffs argue:
[Mercedes Lopez] was unaware that she was the subject to selective
prosecution until approximately March 2015. On that date it was
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made public that Defendant Victor Amato was the subject of
litigation which alleged that he had maintained a long-standing
pattern of racist and sexist behavior. . . . Plaintiff Mercedes Lopez
could not reasonably have known that Amato had acted in a racist
and sexist manner until that fact was disclosed to the public in March
2015.
(ECF No. 22-1 at 10 (citing Dique, 603 F.3d at 181).)
However, Plaintiffs’ reliance on Dique is misplaced. In Dique, the Third Circuit found the
plaintiff was “reasonably unaware of his injury because [the arresting officer] purported to stop
his car for a speeding violation.” Dique, 603 F.3d at 188. Accordingly, the Dique plaintiff’s
selective-enforcement claim did not accrue, under the discovery rule, until “his attorney became
aware of the extensive documents describing the State’s pervasive selective-enforcement
practices,” including performing traffic stops on the basis of racial profiling. Id. Conversely, here,
under the facts pled, Plaintiffs reasonably should have been aware of their injuries at the time they
occurred, before May 20, 2013.
Plaintiffs assert throughout the Amended Complaint the charges underlying Giuliano’s
summonses were patently false and that he investigated Mercedes Lopez, in part, because of his
personal animosity for her. (ECF No. 14 at ¶¶ 29, 45-52.) Indeed, Plaintiffs affirmatively assert
“Giuliano and Amato and the MSPCA [sic] knew or should have known that their actions exceeded
the limits of their duties and were overreaching, abusive and unsupported by evidence” (id. at
Count Four), and “Giuliano knew that the Plaintiff had obtained proper veterinary approvals prior
to conducting the adoption at the . . . adoption event but issued the summonses anyway” (id. at
Count Five). Consequently, unlike the plaintiff in Dique, Plaintiffs in this case were never under
the misapprehension that Giuliano, Amato, or the MCSPCA had any basis to issue summonses to
Mercedes Lopez for any mistreatment of animals. See Love v. N.J. State Police, Civ. No. 14-1313
(FLW)(TJB), 2016 U.S. Dist. LEXIS 69562, at *37 (D.N.J. May 26, 2016) (finding plaintiffs
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should reasonably have discovered their selective enforcement injuries at the time of arrest and
search, because plaintiffs were allegedly arrested for “no apparent reason” and defendants
purportedly falsely claimed to have discovered controlled substances in their search of plaintiffs’
persons and car). Therefore, at the time of the allegedly unreasonable investigation and issuance
of summonses, regardless of whether Plaintiffs were aware of Amato’s purported biases against
women and minorities, Plaintiffs should have reasonably known they were the victims of selective
enforcement at the hands of Giuliano and Amato.
For these reasons, Plaintiffs’ selective enforcement claims against Monmouth Defendants
and Amato (Counts One, Three, and Six) accrued when the summonses were received by Plaintiffs,
before November 23, 2013, and are barred by statute of limitations. To the extent Plaintiffs’ claim
for falsely certifying to summonses (Count Five) is a claim for selective enforcement, it, too, is
barred by the statute of limitations.
B. Malicious Prosecution Claims (Counts Four and Five)
A plaintiff asserting a § 1983 claim for malicious prosecution must allege the following
elements:
(1) the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff’s favor; (3) the proceeding was
initiated without probable cause; (4) the defendants acted
maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal proceeding.
Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). Here, Plaintiffs pled: (1) Defendants
investigated Mercedes Lopez and issued her summonses stemming from the adoption event (ECF
No. 14 at ¶¶ 15-19); (2) the proceeding ended in Mercedes Lopez’s favor, as “[she] was exonerated
on all charges issued by Giuliano” (id. at ¶ 28); (3) Defendants lacked probable cause for the
investigation (id. at ¶¶ 29-30); and (4) Giuliano and Amato acted due to their personal animosity
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toward Mercedes Lopez and/or due to her ethnicity and gender (id. at ¶¶ 33-36, 45-52). Plaintiffs
do not allege adequately, however, that Mercedes Lopez suffered any deprivation of liberty as a
result of Defendants’ actions.
Plaintiffs assert in their opposition Motions, “[Mercedes] Lopez did suffer a seizure in the
form of the loss of her licensing credentials.” (ECF No. 21-1 at 13.) Plaintiffs refer to the loss of
Mercedes Lopez’s animal control license during an unspecified period of time in between her
guilty plea and later withdrawal of the plea, which Plaintiffs recount in their Amended Complaint.
(ECF No. 14 ¶¶ 20-23.) These facts do not constitute a deprivation of liberty.
In the Third Circuit, a deprivation of liberty in the context of a malicious prosecution claim
occurs when the restrictions placed on the plaintiff are “consistent with the concept of seizure as a
consequence of a legal proceeding.” DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d
Cir. 2005). To determine whether such a seizure has occurred, courts look to whether “the state
[has] place[d] constitutionally significant restrictions on a person’s freedom of movement for the
purpose of obtaining his presence at a judicial proceeding.” Schneyder v. Smith, 653 F.3d 313,
321-22 (3d Cir. 2011). Thus, in the context of a malicious prosecution claim, “[p]retrial custody
and some onerous types of pretrial, non-custodial restrictions constitute a Fourth Amendment
seizure,” while “merely attending trial does not amount to a seizure for Fourth Amendment
purposes.” Black v. Montgomery Cty., 835 F.3d 358, 367 (3d Cir. 2016).
Here, Plaintiffs do not allege they were subject to any pretrial custody or non-custodial
restrictions. Instead, Plaintiffs assert the seizure of Mercedes Lopez’s license after she pled guilty
constituted a deprivation of her liberty within the meaning of the Fourth Amendment. (ECF 22-1
at 13-14.) However, the seizure of Mercedes Lopez’s animal control license did not in any way
restrict Plaintiffs’ freedom of movement. A restriction on one’s professional duties does not

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constitute a deprivation of liberty in the context of a malicious prosecution claim. Lear v Zanic,
524 Fed. App’x 797, 799 (3d Cir. 2013) (finding a police officer did not suffer a deprivation of
liberty when placed on “restricted duty” that prevented him from wearing a uniform, retaining his
weapon, or earning overtime). Accordingly, this alleged seizure does not constitute a deprivation
of Plaintiffs’ liberty within the context of a malicious prosecution claim. Therefore, the malicious
prosecution claims against Monmouth Defendants and Amato (Counts Four and Five) are
dismissed.
C. Defamation and Slander (Count Two) and Loss of Consortium Claims (Count
Seven)
As to Plaintiffs’ claims for defamation and slander and loss of consortium against
Monmouth Defendants and Amato, this Court declines to exercise supplemental jurisdiction over
these state law claims. Under 28 U.S.C. § 1367(c), a district court may decline to exercise
supplemental jurisdiction over a claim if the court “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). Federal district courts have original jurisdiction over
“all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. In exercising its discretion, “the district court should take into account generally accepted
principles of ‘judicial economy, convenience, and fairness to the litigants.’” Growth Horizons, Inc.
v. Del. County, Pa., 983 F.2d 1277, 1284 (3d Cir. 1993) (quoting United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)). Where the federal claims are dismissed
at an early stage in the litigation, courts generally decline to exercise supplemental jurisdiction
over state claims. United Mine Workers, 383 U.S. at 726; Growth Horizons, Inc., 983 F.2d at 128485. Here, because Plaintiffs’ claims for defamation and slander, and loss of consortium are based
purely on state law, they are not claims over which the Court has original jurisdiction. Therefore,

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at this early stage in the litigation, the Court declines to exercise supplemental jurisdiction over
Plaintiffs’ remaining state law claims against Defendants.
IV. CONCLUSION
For the reasons set forth above, Monmouth Defendants’ Motion to Dismiss (ECF No. 17)
and Amato’s Motion to Dismiss (ECF No. 20) are GRANTED. Plaintiffs’ claims against
Monmouth Defendants and Amato are DISMISSED WITHOUT PREJUDICE. An appropriate
Order will follow.

Date: April 26, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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