Opinion
DOCKET NO. A-3356-14T3
12-09-2016
STEVEN SCOTT, Plaintiff-Appellant, v. CITY OF NEWARK, Defendant-Respondent, and CITY OF NEWARK POLICE DEPARTMENT, Defendant.
Nathaniel Davis, attorney for appellant. Willie L. Parker, Corporation Counsel, City of Newark-Department of Law, attorney for respondent (Emilia Perez, Assistant Corporation Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8401-14. Nathaniel Davis, attorney for appellant. Willie L. Parker, Corporation Counsel, City of Newark-Department of Law, attorney for respondent (Emilia Perez, Assistant Corporation Counsel, on the brief). PER CURIAM
Plaintiff Steven Scott appeals the Law Division's dismissal of his complaint against defendant, the City of Newark, under Rule 4:6-2(e) for failure to state a claim upon which relief may be granted. For the reasons that follow, we affirm the dismissal of plaintiff's claims sounding in tort, but reverse the dismissal of his statutory causes of action against the City.
Because co-defendant "City of Newark Police Department" is an office within the City and not a separate legal entity, we describe them singularly as "defendant." --------
The sparse record on appeal essentially consists of the allegations set forth in the complaint. In 2011, plaintiff began working for the City as a cashier. On January 24, 2013, a supervisor inspected plaintiff's cash register while he was out sick that day. The supervisor discovered that over $11,000 was missing from the register, and reported the missing funds as stolen. Less than a week later, on January 29, officers from the City's police department arrested plaintiff on charges of theft. Plaintiff spent five days in jail before he was released. The authorities apparently later concluded that plaintiff was not responsible for the missing funds, and he was not prosecuted. Meanwhile, the City terminated plaintiff's employment.
In November 2014, plaintiff filed the present civil action in the Law Division against the City, the City police department, and various fictitious defendants. His complaint alleged that, as a result of his arrest and its aftermath, he (1) suffered "civil rights" violations due to being wrongly arrested; (2) was wrongly terminated from his employment with the City; and (3) suffered psychological, economic, and reputational harm from the "recklessness, carelessness, and/or negligence" of defendants.
Defendants moved to dismiss the complaint on the grounds that plaintiff had not served a tort claims notice within ninety days of the accrual of his claims, in accordance with the notice requirements of the Tort Claims Act ("TCA"), N.J.S.A. 59:8-8. The trial court adopted this argument and consequently dismissed all of plaintiff's claims with prejudice. Plaintiff now appeals that determination.
The applicable standard under the dismissal provision, Rule 4:6-2(e), is well established. When reviewing a litigant's complaint to determine the adequacy of the pleaded claims, the appropriate test is a liberal one. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). As the Supreme Court instructed, the review must begin by determining "whether a cause of action is 'suggested' by the facts." Ibid. (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The Court further explained that courts must review complaints "in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim[.]" Ibid. (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). The review of the complaint's allegations should take "a generous and hospitable approach," and afford plaintiff every "reasonable inference" from the alleged facts. Ibid. Moreover, even if any deficiencies in the pleadings are apparent, the court should consider granting plaintiff an opportunity to amend the complaint and thereby cure those deficiencies. Id. at 772.
The motion judge in part misapplied these principles here. We agree with the dismissal of the complaint with respect to its assertion of claims based on theories of tort. Those tort-based claims expressly or impliedly include, but are not limited to, negligence, false arrest, and malicious prosecution. Plaintiff does not dispute that he failed to serve a tort claims notice on the City within the ninety-day period mandated by N.J.S.A. 59:8-8. Nor did plaintiff move within the maximum one-year period to extend the time to serve a TCA notice on the basis of exceptional circumstances. N.J.S.A. 59:8-9. The lack of the required notice bars plaintiff's recovery on the tort claims as a matter of law. N.J.S.A. 59:8-8(a).
A different conclusion pertains to statutory causes of action, none of which require service of a tort claims notice. Viewed liberally, plaintiff's complaint suggests causes of action for civil rights violations under federal law, 42 U.S.C. § 1983, and state law, in particular the New Jersey Civil Rights Act, N.J.S.A. 10:6-2. The complaint also suggests, albeit somewhat obliquely, claims for wrongful termination under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-13. None of these statutory claims require the service of a tort claims notice under Title 59. See, e.g., Owens v. Feigin, 194 N.J. 607, 614 (2008) (holding the notice requirements of the TCA do not apply to claims brought under the New Jersey Civil Rights Act); Fuchilla v. Layman, 109 N.J. 319, 337-38 (1988) (holding the notice provisions of the TCA do not apply to federal civil rights claims brought under Section 1983), cert. denied, Univ. of Med. & Dentistry of N.J. v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). We thus reverse the trial court's mistaken dismissal of these statutory claims.
Affirmed in part, and reversed in part. We do not retain jurisdiction. The trial court shall conduct a case management conference within the next forty-five days to determine whether plaintiff should be afforded a chance to amend and amplify his statutory claims, and also to plan the course of pretrial discovery.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION