METROPOLITAN MEDICAL ASSOCIATES v. LEGAL CENTER FOR DEFENSE OF LIFE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1246-04T3

METROPOLITAN MEDICAL ASSOCIATES,

Plaintiff-Respondent,

v.

LEGAL CENTER FOR DEFENSE OF

LIFE, INC.,

Defendant-Appellant,

and

CITY OF ENGLEWOOD, and ENGLEWOOD

POLICE DEPARTMENT,

Defendants.

 
Argued telephonically: October 7, 2005 - Decided:

Before Judges Fall, Grall and Levy.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket Number C-254-04.

Richard F. Collier, Jr. argued the cause for appellant.

Lawrence H. Kleiner argued the cause for respondent.

PER CURIAM

Defendant Legal Center For Defense Of Life, Inc. appeals from an order entered in the Chancery Division on September 24, 2004, denying its application for the imposition of sanctions against plaintiff Metropolitan Medical Associates pursuant to the so-called Frivolous Litigation Statute, N.J.S.A. 2A:15-49.1, and R. 1:4-8. This issue arose from the dismissal of plaintiff's action against defendant. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Plaintiff operates a clinic that provides reproductive services to pregnant women, including the performance of abortions, at 40 Engle Street, Englewood. Those activities have regularly drawn a significant number of demonstrators over the last decade, protesting the act of abortion. Purportedly, the demonstrators had been blocking, impeding, inhibiting, interfering with, harassing and obstructing the access of plaintiff's patients to its facility.

After extensive litigation in the United States District Court almost a decade ago concerning the United States Government's efforts to halt, control or regulate the protestors at plaintiff's facility, the District Court issued an order and preliminary injunction on December 22, 1997 in a case entitled United States v. Joseph R. Gregg, 32 F. Supp. 2d 151 (D.N.J. 1998), aff'd, 226 F.3d 253 (3d Cir. 2000), cert. denied, 532 U.S. 971, 121 S. Ct. 1600, 149 L. Ed. 2d 467 (2001), that prohibited, pursuant to the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C.A. 248, the named defendants in that action from blocking, impeding, inhibiting, interfering with, or obstructing access to plaintiff's building at its facilities at the 40 Engle Street location.

The City of Englewood also has an ordinance, Number 87-41, adopted in 1987 that prohibits any person from encumbering or obstructing any public sidewalk by the erection or construction of any stoop, step, platform, window, cellar door or other obstruction.

Defendant is a non-profit corporation operating as a public-interest law firm that provides advice, representation and other legal services in various matters dealing with abortion, euthanasia and other life-related issues.

Through counsel's letter to the attorney for the City of Englewood dated November 5, 2003, plaintiff alleged obstruction of access to its clinic, and sought enforcement by the City of Ordinance Number 87-41 and the December 2, 1997 injunction that had been issued in Gregg.

On July 22, 2004, plaintiff filed a verified complaint in the Chancery Division against defendant, the City of Englewood, the Englewood Police Department, and fictitiously-named defendants (characterized as demonstrators and organizations organizing demonstrations), seeking an order creating a buffer zone around the entrance of plaintiff's facility into which the protestors could not encroach, and enforcement of Ordinance Number 87-41. On July 23, 2004, the Chancery Division issued an order to show cause, without preliminary restraints, requiring the named defendants to show cause why the relief in the complaint should not be granted.

The Legal Center opposed the relief sought contending, inter alia, that it was not responsible for organizing protests at plaintiff's facility. The Legal Center also noted that since the 1997 federal-court injunction, protestors and "sidewalk counselors" had been lawfully protesting outside plaintiff's facility without incident and in accordance with the parameters set forth by the federal court. The Legal Center contended that plaintiff and counsel should be sanctioned for instituting this litigation, and for failing to make the Chancery Division aware of the federal litigation and the denial therein of the buffer zone requested in the Chancery Division litigation. The Legal Center also claimed plaintiff had animus towards it because it had represented persons filing malpractice claims against plaintiff.

A hearing on the relief sought in the order to show cause was held in the Chancery Division on August 6, 2004. After argument and discussion, all counsel seemingly agreed that the issues embodied by plaintiff's requests must be raised in the federal court. The Chancery Division ruled that the matter was not properly brought in the State Court. Counsel for plaintiff stated he would file plaintiff's request for enforcement of the order in the Gregg case in the federal court. Plaintiff's action was then dismissed.

On August 24, 2004, the Legal Center filed a motion seeking an order imposing sanctions against plaintiff and plaintiff's counsel pursuant to R. 1:4-8 and N.J.S.A. 2A:15-59.1. In his supporting certification, Richard F. Collier, Jr., Esq., president of the Legal Center, stated that he had sent a letter to counsel for plaintiff dated July 30, 2004, by facsimile transmission, demanding that plaintiff withdraw its action. Collier stated that the lodestar fee sought was $15,820, in addition to costs of $478.90. Collier's supplemental certification sought an additional fee of $3,675 and costs of $111.80 in preparation of a reply to plaintiff's opposing papers.

On September 24, 2004, the Chancery Division entered an order, denying the application by the Legal Center, stating:

Review of the underlying litigation does not disclose that the plaintiff's application can be considered frivolous. The history of the prior lawsuit and its course in the federal courts was not fully brought to the attention of the court until the return date when it was then apparent to this court that there was such a record. The court thereupon dismissed this litigation on August 6, the return date, leaving the plaintiff to pursue further litigation in the federal court action.

On appeal, the Legal Center argues that plaintiff's claim against it was frivolous "because it was utterly devoid of any factual or legal basis and it was asserted in bad faith or for an improper purpose." More specifically, the Legal Center argues that plaintiff's contention that the Legal Center had been responsible for organizing protests outside plaintiff's facility was "flagrantly false and was asserted without any investigation whatsoever, much less the 'reasonable inquiry' and the 'evidentiary support' that are required by Rule 1:4-8(a)(3)." The Legal Center also argues that the reasons given by the trial court denying its application were "fatally deficient, demonstrably erroneous and legally incorrect."

N.J.S.A. 2A:15-59.1a(1) permits a party who prevails in a civil action to seek an award of all reasonable litigation costs and reasonable attorneys fees if the court finds that the complaint of the nonprevailing party was frivolous. The statute further provides, as follows:

b. In order to find that a complaint . . . of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint . . . was commenced in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

[N.J.S.A. 2A:15-59.1b.]

R. 1:4-8 implements the Frivolous Litigation statute, and further provides that an attorney's signature on a pleading and its filing constitutes a certificate

that to the best of his or her knowledge, information and belief, formed after an inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

If the pleading . . . is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the document had not been served. Any adverse party may also seek sanctions in accordance with the provisions of paragraph (b) of this rule.

[R. 1:4-8(a).]

This provision authorizes sanctions against trial litigation counsel or a party in instances where R. 1:4-8(a) has been violated in bad faith. J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. 1999); K.D. v. Bozarth, 313 N.J. Super. 561, 574 (App. Div.), certif. denied, 156 N.J. 425 (1998).

In considering an application for sanctions, fees, and costs under the frivolous litigation statute and rule, courts must be mindful that the right of access to the court should not be infringed upon, and honest and creative advocacy should not be discouraged. Graziano v. Grant, 326 N.J. Super. 328, 348-49 (App. Div. 1999). Whether a claim is deemed "frivolous" must be given a restrictive meaning. Belfer v. Merling, 322 N.J. Super. 124 (App. Div. 1999), certif. denied, 162 N.J. 196 (2000). The court must balance the competing goals of equal access to the courts and the avoidance of unnecessary litigation by favoring access over cost-avoidance. Gooch v. Choice Entertaining Corp., 355 N.J. Super. 14 (App. Div. 2002).

In Port-O-San Corp. v. Teamsters, 363 N.J. Super. 431, 438 (App. Div. 2003), we examined the "bad faith" and "malice" standards established by N.J.S.A. 2A:15-59.1b(1), stating in pertinent part:

We regard "malice" (explicit in N.J.S.A. 2A:15-59.1b and implicit in Rule 1:4-8(a)) and "bad faith" to be related, but not necessarily identical concepts. Dictionary definitions of malice require an animus that is lacking in the concept of bad faith. However, the Supreme Court has held when describing the elements of tortious interference with business, that malice, an element of the tort, "'is not used in the literal sense requiring ill will toward the plaintiff,'" but instead "malice is defined to mean that the harm was inflicted intentionally and without justification or excuse." Printing Mart-Morristown v. Sharp Electronics, 116 N.J. 739, 751 (1989) (quoting Restatement (Second) of Torts Chapter 37 at 5 (introductory note) and citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 563 (1955)). We adopt the latter definition when construing the term malice in the present context, but are uncertain of the meaning ascribed to the term by the trial judge. . . .

[Port-O-San Corp., supra, 363 N.J. Super. at 438.]

Here, the motion judge did not provide sufficient analysis or application of these principles to permit this court to conduct a meaningful review of the conclusion embodied in the September 24, 2004 order. Accordingly, we are constrained to vacate that order, and remand for further proceedings, followed by findings of fact and conclusions of law. See R. 1:7-4(a).

 
Reversed and remanded.

Fictitiously-named defendants have been eliminated from the caption.

At argument, we were informed that no enforcement proceedings have yet been instituted in the federal court.

(continued)

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A-1246-04T3

October 21, 2005