VAN TASSEL et al v. OCEAN COUNTY et al
OPINION filed. Signed by Judge Brian R. Martinotti on 11/17/2017. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
VAN TASSEL, et al.,
Civil Action No. 16-4761-BRM-TJB
OCEAN COUNTY, et al.,
MARTINOTTI, DISTRICT JUDGE
Before this Court are Defendants Detective Raymond Gardner (“Det. Gardner”) and
Detective John Carroll’s 1 (“Det. Carroll”) (collectively, “Defendants”) Motion for Partial
Dismissal of Counts Three, Four, Five, Six and Seven of the Complaint, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. 2 (ECF No. 13.) Plaintiffs Kimberly Van Tassel
(“Van Tassel”), Mickey Maldonado (“Maldonado”), and Alejandra Santiago (“Santiago”)
(collectively, “Plaintiffs”) opposed the motion. (ECF No. 15.) For reasons set forth below,
Defendants note that Detective John Carroll was improperly pled as “Detective John Carrol”
in Plaintiffs’ Complaint. (Defs.’ Br. (ECF No. 13) at 1.)
Defendants’ Motion is filed on behalf of Det. Carroll, Det. Gardner, and the Ocean County
Prosecutor’s Office. (See generally ECF No. 13.) However, the Ocean County Prosecutor’s
Office was not a named defendant in this case. Indeed, Plaintiffs concede in their moving brief
that “Plaintiffs have not alleged any claims against any prosecutors” and that Plaintiffs have
only “alleged claims against detectives.” (Pls.’ Opp’n Br. (ECF No. 15) at 11.) Plaintiffs note
“[t]he facts before the Court . . . reveal that  Defendants are County employees” and
“Defendants are, as their title declares, a County Detective [sic].” (Id. at 8 (emphasize
removed).) Accordingly, the Court need not address any arguments with respect to dismissal
made on behalf of the Ocean County Prosecutor’s Office.
Defendants’ Motion for Partial Dismissal of Counts Three, Four, Five, Six and Seven is
GRANTED in part and DENIED in part.
For the purposes of this Motion, the Court accepts the factual allegations in the
Complaint as true and draws all inferences in the light most favorable to Plaintiffs. See Philips
v. Cty. of Allegheny, 515 F. 3d 224, 228 (3d Cir. 2008). Further, the Court considers any
“document integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted).
This case arises from an allegedly unlawful search of Plaintiffs’ home. On December
29, 2015, Det. Carroll entered Plaintiffs’ home, along with six to eight additional law
enforcement officers, and began a search of the premises. (Compl. (ECF No. 1) ¶¶ 12-15.) Det.
Carroll informed Van Tassel a search warrant had been issued but was unable to present the
warrant upon request. (Id. ¶¶ 17-18.) Det. Carroll directed an unidentified officer to Van
Tassel’s bedroom, which was located in the basement. (Id. ¶¶ 22-23.) Van Tassel and Det.
Carroll followed the unidentified officer, who began searching Van Tassel’s bedroom closet.
(Id. ¶¶ 23-24.) The unidentified officer found a safe in the closet and Det. Carroll ordered
Plaintiffs to open it or risk the entire unit being confiscated. (Id. ¶¶ 29-30.) Maldonado opened
the safe and Det. Carroll instructed Van Tassel to remove everything inside. (Id. ¶¶ 31-32.)
When Plaintiffs requested to see the search warrant again, Det. Carroll informed them he did
not have a copy because it was in the process of being signed. (Id. ¶¶ 25-26.) Several times
throughout the search, Det. Carroll demanded Plaintiffs leave the premises or face arrest. (Id.
¶¶ 21, 27, 28, 33, 34, 38.) Van Tassel gathered some personal belongings before leaving with
her children and Maldonado. (Id. ¶¶ 35, 39.) Plaintiffs drove away and checked into a nearby
motel. (Id. ¶¶ 40-43.)
Thereafter, Plaintiffs received a call from Detective Nate, 3 who requested Plaintiffs
return home. (Id. ¶¶ 43-44.) Upon arriving home, Plaintiffs found Det. Carroll with the other
officers sitting in their vehicles outside and were greeted by Detective Nate inside their home.
(Id. ¶¶ 45-47.) Detective Nate informed Plaintiffs that the judge would not execute the search
warrant and presented Plaintiffs with a “consent to search” form to sign. (Id. ¶¶ 48-50.)
Plaintiffs declined to sign the consent form and the officers left the premises. (Id. ¶¶ 51-52.)
The following day, Van Tassel called the detectives’ office to reach Det. Carroll and Det.
Gardner, allegedly the lead detective on the case. (Id. ¶¶ 53, 55.) Det. Carroll informed Van
Tassel “that he was very sorry,” whereas Det. Gardner took the position “that he had nothing to
do with [the incident].” (Id. ¶¶ 54-55.) Following the incident, Van Tassel and Maldonado were
“shaken” and “forced to miss a number of days of work while they attempted to cope with the
horror of being thrown out of their home by armed officers in violation of their rights.” (Id. ¶
On August 4, 2016, Plaintiffs filed this suit against multiple defendants, including
against Det. Carroll and Det. Gardner in their individual capacities. 4 Plaintiffs allege the
following seven counts: (1) illegal search and seizure, citing 42 U.S.C. § 1983, the Fourth
Amendment, the New Jersey Civil Rights Act, N.J.S.A. § 10:6-2, et. seq. (“NJCRA”), and the
Plaintiffs only identified Detective Nate by his first name. (ECF No. 1 ¶ 43.)
Plaintiffs filed this case against multiple other defendants. (ECF No. 1.) Because this motion
only pertains to Det. Carroll and Det. Gardner, the Court need not address the issues of the other
New Jersey Constitution (Count One); (2) failure to intervene, citing 42 U.S.C. § 1983, the
NJCRA, and the New Jersey Constitution (Count Two); (3) municipal liability under 42 U.S.C.
§ 1983 and the NJCRA (Count Three); (4) civil conspiracy (Count Four); (5) intentional and
negligent infliction of emotional distress (Count Five); (6) respondent superior liability (Count
6); and (7) negligence (Count Seven). (Id. ¶¶ 58-91.) Plaintiff seeks compensatory damages,
punitive damages, interest, attorney’s fees, costs, and injunctive relief. 5 (Id. at Prayer for Relief
On December 12, 2016, Defendants move for partial dismissal of Counts Three, Four,
Five, Six and Seven of Plaintiffs’ Complaint, arguing: (1) Eleventh Amendment immunity bars
Plaintiffs from bringing claims for money damages; (2) Section 1983 and NJCRA claims are
barred because Defendants are not “persons” amenable to suit; (3) Plaintiff’s municipal liability
claims fail because the prosecutor’s office is not a local government agency; (4) Plaintiff’s tort
claims fail because a Notice of Tort Claim was not properly filed; and (5) Counts Four, Five,
and Six, which allege, respectively, civil conspiracy, intentional and negligent infliction of
emotional distress, and respondent superior liability, fail to state a claim for which relief may
Specifically, the injunctive relief Plaintiffs are seeking include “enjoining Ocean County
Sheriff’s Department and Lakewood Police Department from continuing it pattern and practice
of violating citizens’ civil rights . . . [and] placement of the Ocean County Sheriff’s Department
and Lakewood Police Department in receivership for the purpose of instituting programs to
train, instruct, discipline, control, and supervise their officers.” (ECF No. 1 at 14.) Because this
motion only pertains to Det. Carroll and Det. Gardner, the Court need not address this demand
be granted. (Defs.’ Br. (ECF No. 13) at 2, 6-22.) Plaintiffs opposed the motion (ECF No. 15)
and Defendants replied (ECF No. 18). 6
Rule 12(b)(1) of the Federal Rules of Civil Procedure mandates the dismissal of a case
for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). An assertion of Eleventh
Amendment immunity is a challenge to a district court’s subject-matter jurisdiction. See
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (“[T]he Eleventh
Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.”
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Typically,
when jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff bears the burden of
persuading the court that subject-matter jurisdiction exists. Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, because “Eleventh Amendment immunity
can be expressly waived by a party, or forfeited through non-assertion, it does not implicate
federal subject matter jurisdiction in the ordinary sense,” and therefore, a party asserting
Eleventh Amendment immunity bears the burden of proving its applicability. Christy v. PA Tpk.
Comm., 54 F.3d 1140, 1144 (3d Cir. 1994); see also Carter v. City of Philadelphia, 181 F.3d
339, 347 (3d Cir. 1999).
When a defendant moves to dismiss a claim for lack of subject matter jurisdiction under
Rule 12(b)(1), the court must determine whether the defendant is making a “facial or factual
In a letter submitted to the Court on January 17, 2017, Defendants withdrew their arguments
with respect to Plaintiffs’ failure to file a Notice of Tort Claim. (ECF No. 19.) Accordingly, the
Court decides this Motion on the other arguments submitted by Defendants.
challenge to the court’s subject matter jurisdiction.” Gould Elecs., Inc. v. United States, 220
F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977). Under a facial attack, the movant challenges the legal sufficiency of the claim,
and the court considers only “the allegations of the complaint and documents referenced therein
and attached thereto in the light most favorable to the plaintiff.” Gould Elecs., 220 F.3d at 176;
Mortensen, 549 F.2d at 891 (“The facial attack does offer similar safeguards to the plaintiff [as
a 12(b)(6) motion]: the court must consider the allegations of the complaint as true.”). The court
“may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to
assert a colorable claim of subject matter jurisdiction.” D.G. v. Somerset Hills Sch. Dist., 559
F. Supp. 2d 484, 491 (D.N.J. 2008) (citing Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med.
Ctr., 721 F.2d 68, 75 (3d Cir. 1983)).
Under a factual attack, however, the challenge is to the trial court’s “very power to hear
the case.” Mortensen, 549 F.2d at 891. Thus:
[T]here is substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its power to
hear the case. In short, no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.
Mortensen, 549 F.2d at 891. Moreover, in a factual attack, “the court may consider and
weigh evidence outside the pleadings to determine if it has jurisdiction.” Gould Elecs., 220
F.3d at 178. Regardless of the analysis, the plaintiff bears the burden of demonstrating the
existence of subject matter jurisdiction. See McCann v. Newman Irrevocable Tr., 458 F.3d
281, 286 (3d Cir. 2006); Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009) (citing
Carpet Grp. Int'l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000)).
Here, Defendants raise a facial 12(b)(1) challenge. 7 They do not dispute the facts
asserted by Plaintiff, but rather rely on immunity that the claims asserted bar this Court from
jurisdiction. See Blanciak, 77 F.3d at 694 n.2 (dismissing claims protected by the Eleventh
Amendment because immunity “is a jurisdictional bar which deprives federal courts of
subject matter jurisdiction.”); Wright v. N.J. Dep’t of Educ., 115 F. Supp. 3d 490, 496-97
(D.N.J. 2015) (dismissing claims pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction because the plaintiff “has not met his burden of establishing waiver of sovereign
immunity”). This “facial” attack limits the Court’s review to the pleadings and exhibits
attached thereto, and the Court must consider the allegations in the light most favorable to
Plaintiff. Gould Elecs., 220 F.3d at 176; Mortensen, 549 F.2d at 891. Plaintiff bears the
burden of proving subject matter jurisdiction, McCann, 458 F.3d at 286; Lightfoot, 564 F.3d
at 627, and the Court must dismiss the complaint if it appears to a certainty Plaintiff cannot
demonstrate a colorable claim of jurisdiction, D.G., 559 F. Supp. 2d at 491.
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 (3d Cir. 2008).
“[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Although Defendants only raise a Rule 12(b)(6) motion to dismiss for failure to state a claim,
part of their arguments fall under the legal standard of a Rule 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction. See Blanciak, 77 F.3d at 693 n.2. The Third Circuit has
“cautioned against treating a Rule 12(b)(1) motion as a Rule 12(b)(6) motion and reaching the
merits of the claims.” Gould¸ 220 F.3d at 178. Therefore, the Court clarifies that its ruling in
this Opinion is made in part pursuant to Rule 12(b)(1).
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.
“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.” Id. at 679. “[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)).
Subject-Matter Jurisdiction Over Defendants In Their Individual Capacity
Federal Constitutional Claims
Defendants argue claims for damages are barred because Eleventh Amendment
immunity prohibits claims against state officials and therefore Defendants, in their official
capacities, are not “persons” amenable to suit under Section 1983. (ECF No. 13 at 6, 10.)
Specifically, Defendants argue:
Although Plaintiffs have alleged their claims against the
Detectives in their individual capacities, Plaintiffs have not
explained how the actions complained of fall outside of their job
duties. Therefore, in the event that the Court may construe claims
against the Detectives in their official capacities, those claims
must be disregarded based on Eleventh Amendment Immunity.
(Id. at 6.) Defendants also argue the many allegations against them in their individual capacity
“can only be construed against them in their official capacities, and therefore the ‘not a person’
analysis [under Section 1983] applies to those claims . . . in their official capacities.” (Id. at 10.)
Plaintiffs argue Eleventh Amendment immunity does not apply, and Defendants are “persons”
amenable to suit under Section 1983. (Pls.’ Opp’n Br. (ECF No. 15) at 4-5.) Specifically,
Plaintiffs argue the “well-plead complaint clearly states that the claims against  Defendants
are in their individual capacities.” (Id. at 5.)
Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must establish that (1) the
conduct deprived him of his rights, privileges, or immunities secured by the Constitution or
laws of the United States and (2) the conduct challenged was committed by a person acting
under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Shuman ex rel. Shertzer
v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).
“Section 1983 provides a federal forum to remedy many deprivations of civil liberties,
but it does not provide a federal forum for litigants who seek a remedy against a State. . . . The
Eleventh Amendment bars such suits unless the State has waived its immunity.” Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). Generally, a suit by private parties
seeking to impose a liability, which must be paid from public funds in a state treasury, is barred
from federal court by the Eleventh Amendment, unless Eleventh Amendment immunity is
waived by the state or by a federal statute. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663
(1974). The Eleventh Amendment also bars suits against state officials in their official capacity.
See Melo v. Hafer (Melo I), 912 F.2d 628, 635 (3d Cir. 1990), aff’d, Hafer v. Melo (Melo II)
502 U.S. 21 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 165-68 (1985)). The Eleventh
Amendment does not, however, bar suits for damages against state officials in their individual
or personal capacity, as such actions seek recovery against the personal assets of the defendant
and the state is not the real party in interest. Melo I, 912 F.2d at 635 (citation omitted). In
addition, the Eleventh Amendment does not bar suits against state officials for declaratory or
injunctive relief. See Melo I, 912 F.2d at 635 n.5 (citing Ex Parte Young, 209 U.S. 123 (1908)).
Here, Plaintiffs seek damages against Defendants in their individual capacities. (ECF
No. 1 at 14.) Specifically, Plaintiffs’ suit “seek[s] to impose individual liability upon a
government officer for action taken under color of state law.” Melo II, 502 U.S. at 25. Because
the Eleventh Amendment only bars suits against state officials in their official capacities,
Plaintiffs are entitled to proceed against Defendants in their individual capacities. Garden State
Elec. Inspection Servs., Inc. v. Levin 144 F. App’x 247, 251 (3d Cir. 2005) (finding Eleventh
Amendment immunity does not bar a plaintiff from bringing suit in federal court against
government officials sued in their individual capacity); Goodall-Gaillard v. N.J. Dep’t of Corr.,
No. 09-965, 2014 WL 2872086, at *26 (D.N.J. June 24, 2014); Grohs v. Yatauro, 984 F. Supp.
2d 273, 281 (D.N.J. 2013) (finding a state official sued in his individual capacity “does not
partake [in] the state’s Eleventh Amendment sovereign immunity”); Kamienski v. Att’y Gen.
for N.J., No. 11-3056, 2012 WL 4033765, at *4 (D.N.J. Sept. 12, 2012) (“The Eleventh
Amendment does not preclude suit against private individuals.”).
To the extent Defendants argue Plaintiffs’ “allegations [against them in their individual
capacity] can only be construed against them in their official capacities” (ECF No. 13 at 10),
Defendants fail to cite any case law to support this contention. On the contrary, state officials
are not “absolutely immune from personal liability under [Section] 1983 solely by virtue of
their official nature of their acts.” Melo II, 502 U.S. at 31; Pitman v. Ottehberg, No. 10-2538,
2015 WL 179392, at *7 (D.N.J. Jan. 14, 2015) (“Eleventh Amendment does not bar suits
brought against state officials in their individual capacities, even if the conduct at issue was part
of the defendant’s official duties.”). Here, Plaintiffs specifically bring claims against
Defendants solely in their individual capacities, and Defendants cannot construe Plaintiffs’
allegations to suggest the Complaint is asserting different claims, particularly ones conveniently
precluded by the Eleventh Amendment. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 398
(1987) (“[P]laintiff is the master of the complaint . . . .”);
Accordingly, Defendants are “persons” amenable to suit under Section 1983 because
Eleventh Amendment immunity does not extend to claims brought against state officials in their
individual capacities. See Melo II, 502 U.S. 21, 31 (1991) (“[S]tate officials, sued in their
individual capacities, are ‘persons’ within the meaning of [Section] 1983 . . . .”); Michel v.
Wicke, No. 10-3892, 2011 WL 3163236, at *4 (D.N.J. July 25, 2011) (“Because [the defendant]
is sued in his individual capacity, he is a person under [Section] 1983 . . . .”). Defendant’s
Motion to Dismiss claims against them on jurisdictional grounds is DENIED.
State Constitutional Claims
Defendants argue sovereign immunity bars Plaintiffs from asserting state constitutional
claims because Defendants are not “persons” amenable to suit under the NJCRA. (ECF No. 13
at 13.) The NJCRA was modeled after Section 1983 and “courts in New Jersey have
consistently looked at claims under the NJCRA ‘through the lens of [Section] 1983,’” thereby
construing the NJCRA in terms similar to its federal counterpart. Samoles v. Lacey Twp., No.
12-3066, 2014 WL 2602251, at *15 (D.N.J. June 11, 2014) (citation omitted); Hartfeld v. N.J.
State Police, No. 16-5461, 2017 WL 3184173, at *5 (D.N.J. July 26, 2017); Armstrong v.
Sherman, No. 09-716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010). This Court has repeatedly
interpreted the NJCRA analogously to Section 1983. See Chapman v. New Jersey, No. 08-4130,
2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed the NJCRA
in terms nearly identical to its federal counterpart . . . .”). The NJCRA is therefore generally
interpreted nearly identically to Section 1983 and claims under the NJCRA are generally
coterminous with and subject to the same defenses and immunities as those brought under
Section 1983. Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443-44 (D.N.J. 2011).
Accordingly, the Court will analyze Plaintiffs’ NJCRA claims through the lens of
Section 1983. Middleton v. City of Ocean City, No. 12-0605, 2014 WL 2931046, at *6 (D.N.J.
June 30, 2014) (noting New Jersey courts apply virtually the same standard under state law for
malicious prosecution claims); see also Norcross v. Town of Hammonton, No. 04-2536, 2008
WL 9027248, at *4 (D.N.J. Feb. 5, 2008) (“The New Jersey Supreme Court does not appear to
have spoken on whether excessive force is a context where state law provides greater protection
than does federal law. This [c]ourt sees no reason to conclude that in the context of a claim for
excessive force during an arrest, the standard under the New Jersey Constitution for evaluating
those claims is different from that under the United States Constitution.”).
For the reasons set forth in connection with the Section 1983 analyses above,
Defendants, in their individual capacities, are amenable to suit under the NJCRA and New
Jersey Constitution, and Defendant’s Motion to Dismiss claims against them on jurisdictional
grounds is DENIED.
Failure To State A Claim
Having found this Court has jurisdiction over Defendants in their individual capacity,
the Court proceeds to its analysis of Defendants’ 12(b)(6) Motion to Dismiss certain counts. To
the extent Defendants seek dismissal of Counts III and VI, the Court DENIES Defendants’
Motion because Counts III and VI make allegations against non-moving defendants. 8
Additionally, Defendants move generally to dismiss Count VII, but failure to provide this Court
Defendants argue Count VI, which alleges a cause of action for respondeat superior, should
be dismissed as to the Prosecutor’s Office. The Court has already found the Prosecutor’s Office
is not a party to this action and therefore, the Court will not address Defendants’ arguments as
to Count VI.
with any basis for the dismissal. Therefore, Defendants’ Motion to Dismiss Count VII is also
DENIED. Defendants move to dismiss Counts IV and V for failure to state a claim, which
Court addresses below.
Civil Conspiracy – Count IV 9
Defendants argue Count Four for civil conspiracy should be dismissed for failure to
state a claim. (ECF No. 13 at 20.) Specifically, Defendants argue “Plaintiffs have not identified
an unlawful agreement between any parties, nor what they purpose that agreement to have been
or what form it took.” (Id. at 20-21.) In opposition, Plaintiff argues the Complaint sufficiently
alleges a claim for civil conspiracy because:
[T]he Complaint details the unlawful actions of Defendants
Gardner and Carrol[l] in lying about having a warrant and
entering Plaintiffs’ home with several of the other Defendants.
. . . The Complaint further reveals how  Defendants directed
other Defendants to various places within the home to engage in
an illegal search, seizure, and eviction of  Plaintiffs . . . The
voluminous facts contained in the Complaint make it clear that 
Defendants acted in concert and together, in an agreement to
deprive  Plaintiffs of their rights.
(ECF No. 15 at 10.)
Under New Jersey law, a plaintiff alleging civil conspiracy must prove “a combination
of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act
by unlawful means, the principal element of which is an agreement between the parties to inflict
a wrong against or injury upon another, and an overt act that results in damages.” Banco
Popular, N.A. v. Gandi, 184 N.J. 161, 177 (2005) (citation omitted). To survive a motion to
As an initial matter, the Court notes Plaintiffs have not cited to any case law to support their
claims for civil conspiracy or intentional and negligent infliction of emotional distress in their
dismiss, a plaintiff must allege “at least some facts which could, if proven, permit a reasonable
inference of a conspiracy to be drawn.” Durham v. City and Cty. of Erie, 171 F. App’x 412,
415 (3d Cir. 2006). “This requirement is established where the complaint sets forth a valid legal
theory and it adequately states the conduct, time, place, and people responsible.” Lynn v.
Christner, 184 F. App’x 180, 184 (3d Cir. 2006).
Here, Plaintiffs allege “[Det. Carroll] was working under the direct supervision of and
in concert with [Det. Gardner], from his office,” to execute a search of their home in the middle
of the night. (ECF No. ¶¶ 16, 17, 49) Plaintiff claims, “upon information and belief, [Det.
Gardner was] the lead detective on the matter.” (Id. ¶ 55.) Further, Plaintiffs allege “Defendants
knew that no warrant had issued to search the home and yet [still] searched the home.” (Id. ¶
57.) See Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 365 (App. Div.
1993) (“Thus, the question whether an agreement exists should not be taken from the jury in a
civil conspiracy case so long as there is a possibility that the jury can ‘infer from the
circumstances [that the alleged conspirators] had a meeting of the minds and thus reached an
understanding’ to achieve the conspiracy’s objectives.” (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158 (1970)).
At this stage of the proceedings, these allegations are sufficient to support a claim that
Defendants acted in concert to commit an unlawful act, i.e., to violate Plaintiffs’ rights against
warrantless searches and seizures. See Ferrara v. Union Cty. Prob., No. 16-9250, 2017 WL
1100567, at *4 (D.N.J. Mar. 22, 2017) (finding a civil conspiracy claim was adequately pled
because “[p]laintiff has alleged that at least two [i]ndividual [d]efendants . . . knew that [the
plaintiff] did not violate probation, or that the assertion that he violated his probation was
frivolous, but acted in concert to harass him and deprive him of his freedom and civil liberties”);
Gibbs. v. Massey, No. 07-3604, 2009 WL 838183, at *10 (D.N.J. Mar. 26, 2009) (“The keystone
to a civil conspiracy claim is not the actual agreement; it is the underlying wrong which, absent
the agreement, would by itself give rise to a cause of action.” (citing Gandi, 184 N.J. at 17778)). Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ civil conspiracy claim is
Infliction of Emotional Distress – Count V
Defendants argue Count Five for negligent and intentional infliction of emotional
distress should be dismissed for failure to state a claim. (ECF No. 13 at 17.) Specifically,
Defendants advance two arguments. First, they argue Plaintiffs have failed to sufficiently plead
“extreme/outrageous and intentional/reckless conduct that  causes severe emotional distress”
to bring an intentional infliction of emotional distress claim. (Id.) Second, they argue Plaintiffs
have failed to sufficiently plead the heightened requirement for negligent infliction of emotional
distress and “merely pled the elements . . . without further supporting allegations.” (Id. at 19.)
In response, Plaintiffs contend they:
more than adequately plead the horrific circumstances in which
[Plaintiffs] were accosted in their home by  Defendants,
threatened with arrest, forced to permit an unlawful search, then
unlawfully evicted from their home in the middle of the night,
not even given the opportunity to put shoes on their children.
Throughout this outrageous conduct,  Defendants continued to
threaten, coerce, and harass  Plaintiffs. . . . Indeed, 
Defendants’ actions were so traumatic, Plaintiffs had to pull over
after being evicted to mentally and emotionally collect
(ECF No. 15.) The Court will address both arguments in turn.
Intentional Infliction of Emotional Distress
Under New Jersey law, to establish a prima facie claim for intentional infliction of
emotional distress, a plaintiff must show: “(1) that the defendant intended to cause emotional
distress; (2) that the conduct was extreme and outrageous; (3) that the actions proximately
caused emotional distress; and (4) that plaintiff’s emotional distress was severe.” Witherspoon
v. Rent-A-Center, Inc., 173 F. Supp. 2d 239, 242 (D.N.J. 2001) (citing Buckley v. Trenton Savs.
Fund Soc’y, 111 N.J. 355, 366 (1988)). “An intentional infliction of emotional distress claim is
rarely dismissed on a motion to dismiss.” Acevedo v. Monsignor Donovan High Sch., 420 F.
Supp. 2d 337, 349 (D.N.J. 2006). However, a plaintiff will not satisfy the above elements by
merely demonstrating a defendant acted “unjust, unfair and unkind.” Fregara v. Jet Aviation
Bus. Jets, 764 F. Supp. 940, 956 (D.N.J. 1991).
In order to establish “extreme and outrageous” conduct, a plaintiff must sufficiently
plead factual allegations to show the defendant’s conduct was “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Witherspoon, 173 F. Supp. 2d at
242 (quoting Buckley, 544 N.J. at 366 (citation omitted)). As a threshold matter, the Court must
determine whether a defendant’s conduct meets this standard. See Ali v. Jersey City Parking
Authority, No. 13-2678, 2014 WL 1494578, at *5 (D.N.J. Apr. 16 2014) (citing Cox v. Keystone
Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). In order to establish severe emotional distress,
a plaintiff must show emotional distress “so severe that no reasonable [person] could be
expected to endure it.” Glenside West Corp. v. Exxon Co., 761 F. Supp. 1100, 1113 (D.N.J.
1991) (quoting Buckley, 111 N.J. at 366). Additionally, “New Jersey law . . . requires plaintiffs
to assert that they sought treatment for their alleged distress.” Botts v. N.Y. Times Co., No. 031582, 2003 WL 23162315, at *9 (D.N.J. Aug. 29, 2003).
Here, Plaintiffs allege they were “unlawfully evicted from their home in the middle of
the night so their home could be unlawfully searched.” (ECF No. 1 ¶ 49.) While there are no
factual allegations made on behalf of Santiago in the entire Complaint, Plaintiffs claim “Van
Tassel and Maldonado had to stop in a nearby parking lot to collect themselves emotionally as
they were distraught over the situation.” (ECF No. 1 ¶ 41.) Plaintiffs also claim “Van Tassel
and Maldonado, still shaken, were forced to miss a number of days of work while they
attempted to cope with the horror of being thrown out of their home.” (Id. ¶ 56.) The only
remaining references to Plaintiffs’ alleged emotional distress are:
The previously described misconduct caused and/or resulted in
emotional distress that reasonable person could [not] [sic] be
expected to endure it. Specifically, Defendants’ collective
conduct resulting in emotional tumult that cause the adult
Plaintiffs to miss time from work as they recovered. As a direct
and proximate result of the misconduct, Plaintiffs all were caused
to suffer physical and emotional harm.
(Id. ¶¶ 83-85.) These allegations, even if true, fail to sufficiently state a claim, because Plaintiffs
merely rely on a recitation of the elements supported with conclusory statements. See Iqbal,
556 U.S. at 678 (holding “recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to state a claim); Birch v. Wal-Mart Stores, No. 15-1296,
2015 WL 8490938, at *4 (D.N.J. Dec. 9, 2015) (“While the Complaint uses terms like
‘outrageous’ and ‘severe emotional distress,’ these legal conclusions are not supported by
facts.”); Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000) (dismissing an
intentional infliction of emotional distress claim because the plaintiff “does not allege the
symptoms of severe emotional distress”). 10
Moreover, neither Van Tassel nor Maldonado have alleged suffering from a medical
condition or even sought medical assistance for their alleged distress. See Botts, 2003 WL
23162315, at *9 (D.N.J. Aug. 29, 2003) (granting 12(b)(6) motion to dismiss because plaintiffs
“have not alleged that they have sought medical treatment for their distress”); Mardini v. Viking
Freight, Inc., 92 F. Supp. 2d 378, 385 (D.N.J. 1999) (granting 12(b)(6) motion to dismiss,
noting the plaintiff had “not alleged that she had to seek medical assistance, or that any specific
ailment afflicted her”); Rivera, 2003 WL 21077965, at *6 (distinguishing facts from Mardini
and denying 12(b)(6) motion to dismiss because the plaintiff alleged “emotional stress and
anxiety, which intensified her medical condition”). 11 Accordingly, Defendants’ Motion to
Dismiss Plaintiffs’ intentional infliction of emotional distress claim is GRANTED.
Negligent Infliction of Emotional Distress
Under New Jersey law, there are two legal theories under which a plaintiff can establish
a prima facie claim for negligent infliction of emotional distress. First, a plaintiff can show: 1)
“death or serious physical injury of another caused by defendant’s negligence; 2) a marital or
With respect to Plaintiffs’ claim they “were humiliated, disgraced, suffered damages to their
reputation” (ECF No. 1 ¶ 63), it is well established suffered from “aggravation, embarrassment,
an unspecified number of headaches, and loss of sleep” does not sufficiently show severe
emotional distress as a matter of law. Buckley, 111 N.J. at 366. Therefore, Plaintiffs’ allegations,
taken as true, fail to state a claim for emotional distress.
See also, Flammer v. Cty. of Morris, No. 05-5039, 2006 WL 1307679, at *4 (D.N.J. May 10,
2006) (denying a motion to dismiss, noting the plaintiff alleged “that [the defendant’s] conduct
caused him to seek medical attention and resulted in him being prescribed medication for
anxiety”); Maxon v. YRC Inc., No. 14-4653, 2015 WL 4394272, at *6-7 (D.N.J. July 6, 2015)
(denying 12(b)(6) motion to dismiss, noting the plaintiff alleged suffering from stress, anxiety,
recurring nightmares, had a heart attack, and underwent psychological counseling).
intimate family relationship between plaintiff and the injured person; 3) observation of the death
or injury at the scene of the accident; and 4) resulting severe emotional distress.” Fleming v.
United Parcel Serv., Inc., 255 N.J. Super. 108, 166 (Law. Div. 1992). Second, a plaintiff can
show “the defendant’s negligent conduct placed the plaintiff in ‘reasonable fear of immediate
personal injury’ which gave rise to emotional distress that resulted in a substantial bodily injury
or sickness.” Jablonowska v. Suther, 195 N.J. 91, 103 (2008). Under the second standard, New
Jersey law has adopted the “zone of danger” rule, where “immediate fear of personal injury
could serve as the basis for recovery so long as ‘substantial bodily injury or sickness’ result.”
Abouzaid v. Mansard Gardens Ass’n, LLC., 207 N.J. 67, 77 (2011).
Here, Plaintiffs fail to allege facts supporting the former legal theory because there are
no references to “death or serious physical injury.” Portee v. Jaffee, 84 N.J. 88, 97 (1980); see
also Angle v. United States, No. 12-2495, 2012 WL 6708165, at *6-7 (D.N.J. Dec. 21, 2012).
Likewise, Plaintiffs fail to state a claim under the latter legal theory because the Complaint
contains no factual allegations to establish whether Defendants’ conduct placed Plaintiffs in a
zone of danger. See K.J. v. Greater Egg Harbor Reg’l High Sch. Dist. Bd. of Educ., No. 14145, 2015 WL 1816353, at *11 (D.N.J. Apr. 21, 2015) (“Plaintiff’s [first amended complaint]
contains no factual allegations to establish that any Plaintiff was placed in a zone of danger by
Defendants’ allegedly negligent conduct . . . .”).
To the extent Plaintiffs claim they were “fearing arrest” or “still shock” (ECF No. 1 ¶¶
39, 56), “where fright does not cause substantial bodily injury or sickness, it is to be regarded
as too lacking in seriousness and too speculative to warrant the imposition of liability.” Falzone
v. Busch, 45 N.J. 559, 5569 (1965); see also Peteete v. Asbury Park Police Dep’t, No. 09-1220,
2010 WL 5151238, at *14 (D.N.J. Dec. 13, 2010) (granting 12(b)(6) motion to dismiss because
plaintiff’s allegations of “humiliation, mental anguish, and emotional distress [were]
insufficient as a matter of law to support a finding of severe mental distress”). Because the
Complaint does not allege Plaintiffs witnessed the death of or serious injury to a close family
member, or were placed in reasonable fear of immediate personal injury, Plaintiffs fail to state
a claim for negligent infliction of emotional distress. Accordingly, Defendants’ motion to
dismiss Count V is GRANTED.
For the reasons set forth above, Defendants’ Motion for Partial Dismissal (ECF No. 13)
of the claims against Det. Carroll and Det. Gardner is DENIED with respect to Counts III, IV,
VI, and VII, and GRANTED with respect to Count V. An appropriate order will follow.
Date: November 17, 2017
/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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