Opinion
DOCKET NO. A-4404-13T3
07-22-2016
MARC A. JORDAN, Plaintiff-Appellant, v. NEPTUNE MOTOR LODGE, a privately owned business, ELIZABETH BONARRINGO (ex-employee of the Neptune Motor Lodge), Defendants, and DIANE BUGEL (ex-owner of the Neptune Motor Lodge), Defendant-Respondent.
Marc A. Jordan, appellant pro se. Middlebrooks Shapiro PC, attorneys for respondent (Joseph M. Shapiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3709-13. Marc A. Jordan, appellant pro se. Middlebrooks Shapiro PC, attorneys for respondent (Joseph M. Shapiro, of counsel and on the brief). PER CURIAM
Plaintiff Marc Jordan, who is presently serving a life sentence in the custody of the Department of Corrections, appeals from a December 9, 2013 order dismissing his complaint against defendant Diane Bugel with prejudice for failure to state a claim upon which relief may be granted. In his complaint, plaintiff alleged that Bugel and the other defendants violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 ("the Act"). We affirm.
To place the issues raised in this appeal in context, we begin with a brief summary of the pertinent provisions of the Act. N.J.S.A. 2A:156A-29(c) provides that if a law enforcement agency obtains a warrant, the consent of the subscriber or customer, or a court order,
[a] provider of [an] electronic communication service or remote computing service or a communication common carrier shall disclose a record, the location information for a subscriber's or customer's mobile or wireless communications device, or other information pertaining to a subscriber or customer of the service . . . to [the] law enforcement agency . . . .N.J.S.A. 2A:156A-29(f) states that "when the law enforcement agency obtains a grand jury or trial subpoena[,]" the "provider of [an] electronic communication service or remote computing service shall disclose" the subscriber's or customer's name, address, telephone number, and "telephone connection records
The Act defines "[e]lectronic communication service" as "any service which provides to the users thereof the ability to send or receive wire or electronic communications[.]" N.J.S.A. 2A:156A-2(p). A "'[r]emote computing service' means the provision to the public of computer storage or processing services by means of an electronic communication system[.]" N.J.S.A. 2A:156A-2(s). As used in the Act, "'[c]ommunication common carrier' means any person engaged as a common carrier for hire, in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate[,] or foreign radio transmission of energy[.]" N.J.S.A. 2A:156A-2(j).
N.J.S.A. 2A:156A-32(a) states that any subscriber or customer "aggrieved by any violation of [N.J.S.A. 2A:156A-29] may recover, in a civil action, such relief as may be appropriate from the person or entity which knowingly or purposefully engaged in the conduct constituting the violation." This relief may include actual damages and attorney's fees. N.J.S.A. 2A:156A-32(b). However, a civil action under this statute "may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation." N.J.S.A. 2A:156A-32(d).
Turning to the present case, plaintiff alleged in his complaint that, on June 11, 1997, a Freehold Township detective was investigating an alleged robbery that occurred on June 9 at a local shopping mall. After the incident at the mall, the suspect began placing telephone calls to the victim in an attempt to extort money from him. The detective obtained the victim's consent to install a recording device on the victim's telephone in order to intercept and record the suspect's calls. The telephone company notified the detective that the calls were being placed from the Neptune Motor Lodge. Defendant Bugel (hereinafter "defendant") was then the owner of that motel.
The detective went to the motel to set up surveillance. Once there, the detective received notification from headquarters that the victim had just received another call from the suspect. The detective then spoke to the desk clerk, and asked if any of the telephones in the motel were currently in use. The clerk advised the detective that the only telephone then in use was the one in Room 102, and she gave the detective the occupant's registration information and "phone records." The detective went to the room and found defendant. Defendant was then arrested and subsequently charged with a number of offenses, including armed robbery and theft by extortion.
The complaint states that the information concerning the detective's actions at the motel was contained in plaintiff's arrest records.
Over sixteen years later, plaintiff filed a complaint against defendant, the motel, and the desk clerk, asserting that they
violated the requirements of N.J.S.A. 2A:156A-29(c) [and] (f) when they unlawfully disclosed, without a warrant, court order[,] or subpoena, to the detective information concerning his use of and or being on his motel room phone and documentation with respect to the same, all of which result[ed] in[] his arrest, indictment, trial, conviction[,] and [l]ife imprisonment.The only reference to defendant in the complaint was plaintiff's statement that she "was the owner of the Neptune Motor Lodge." The complaint did not specifically allege that defendant "knowingly or purposefully engaged in the conduct constituting the [alleged] violation" of N.J.S.A. 2A:156A-29(c) and (f), or claim that defendant was the provider of an "electronic communication service"; "remote computing service"; or "communication common carrier" that was subject to these provisions.
Accordingly, defendant filed a motion to dismiss the complaint under Rule 4:6-2(e) for failure to state a claim. Plaintiff did not respond to the complaint. On December 9, 2013, the motion judge granted defendant's motion. In an attached statement of reasons, the judge explained that plaintiff did not allege that defendant
knowingly or purposefully engaged in the conduct constituting the alleged violation. Plaintiff only plead[ed] that one of [defendant's] former employee[s] . . . disclosed [p]laintiff's room number, lodge registration, and phone records to the Freehold Township Police Department. Accordingly, [p]laintiff's [c]omplaint does not set forth a prima facie plea for a violation of . . . [N.J.S.A.] 2A:156A-29(c) or (f) . . . .
The judge also found that defendant did "not meet the definition of [a provider of] an 'electronic communication service,' a 'remote computing service,' or a 'communication common carrier'" and, therefore, she was not subject to the Act. Therefore, the judge concluded the complaint did not state a claim upon which relief could be granted. This appeal followed.
The judge did not address the two-year statute of limitations set forth in N.J.S.A. 2A:156A-32(d).
On April 11, 2014, and August 29, 2014, respectively, the trial court issued orders dismissing the complaint against the Neptune Motor Lodge and the desk clerk.
On appeal, plaintiff contends the motion judge erred by dismissing his complaint pursuant to Rule 4:6-2(e). "In considering a motion to dismiss under [the rule], courts search the allegations of the pleading in depth and with liberality to determine whether a cause of action is 'suggested by the facts.'" Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)), certif. denied, 208 N.J. 368 (2011). We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the motion court. See Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011).
Applying these principles, we discern no basis for disturbing the motion judge's decision to dismiss plaintiff's complaint. N.J.S.A. 2A:156A-32(a) states that an individual may only be liable in a civil action if he or she "knowingly or purposefully engaged in the conduct constituting the violation" of the Act. Here, plaintiff's only allegation against defendant was that she owned the motel. He did not specifically allege that she "knowingly or purposefully engaged" in any conduct that violated the Act. Indeed, he did not even assert that defendant was present when the desk clerk responded to the detective's request for information. Therefore, plaintiff's complaint clearly failed to state a cause of action against defendant.
In addition, defendant could only violate N.J.S.A. 2A:156A-29(c) and (f) if she was a provider of an "electronic communication service," a "remote computing service," or a "communication common carrier" as defined in the Act. As the judge found, defendant did not provide any of these services and, therefore, was not subject to the requirements of N.J.S.A. 2A:156A-29(c) and (f).
Finally, although not addressed by the judge, we also believe that plaintiff's complaint was barred by the two-year statute of limitations set forth in N.J.S.A. 2A:156A-32(d). The complaint alleges that defendant violated the Act in June 1997. As plaintiff concedes in the complaint, information concerning the detective's receipt of plaintiff's telephone records from the desk clerk was contained in plaintiff's arrest records. These records would have been available to defendant and his attorney in connection with the charges lodged against him at that time.
See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an appellate court is "free to affirm the trial court's decision on grounds different from those relied upon by the trial court"). --------
In spite of this, plaintiff did not file his complaint against defendant until September 20, 2013, over sixteen years after the desk clerk gave the detective the records. Thus, the two-year statute of limitations expired before plaintiff filed his complaint.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION