212 MARIN BOULEVARD LLC v. CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

212 MARIN BOULEVARD, LLC,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY, a

Municipal Corporation of

the State of New Jersey, and

ROBERT BYRNE, in his official

capacity as Records Custodian

of the City of Jersey City,

Defendants,

and

PENNSYLVANIA RAILROAD

HARSIMUS STEM EMBANKMENT

PRESERVATION COALITION, a

Not-for-Profit Corporation

of the State of New Jersey,

and MAUREEN CROWLEY,

Defendants-Respondents.

______________________________

Argued Telephonically February 7, 2014 Decided February 27, 2014

 

Before Judges Simonelli, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6131-11.

 

Eric D. McCullough argued the cause for appellant (Waters, McPherson, McNeill, P.C., attorneys; Mr. McCullough, of counsel and on the briefs).

 

John J. Robertelli argued the cause for respondents (Rivkin Radler, LLP, attorneys; Mr. Robertelli, of counsel and on the brief).

PER CURIAM

Plaintiff 212 Marin Boulevard, LLC appeals from a March 15, 2012 order dismissing its complaint against defendant Pennsylvania Railroad Harsimus Stem Embankment Preservation Coalition ("Embankment Coalition") and Maureen Crowley ("Crowley")1 pursuant to Rule 4:6-2(e); a May 11, 2012 order granting defendants' motion for sanctions pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8; and a July 3, 2012 order awarding defendants counsel fees. We reverse and remand for further proceedings consistent with this opinion.

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). A trial court should grant the dismissal "in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). Such review "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," and, in determining whether dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself with the plaintiff's ability to prove its allegations. Id. at 746. If "the fundament of a cause of action may be gleaned even from an obscure statement of claim," then the complaint should survive this preliminary stage. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995) (citation omitted). "The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach." Printing Mart-Morristown, supra, 116 N.J. at 746.

We discern the following facts from plaintiff's complaint, giving plaintiff the benefit of all reasonable factual inferences. Ibid. The underlying dispute between the parties pertains to property that plaintiff acquired in Jersey City. In July 2005, plaintiff purchased a segment of a structure referred to as the Sixth Street Embankment (the "Embankment"). Embankment Coalition is an organization consisting of individuals who oppose development of the Embankment. Defendant City of Jersey City ("the City") organized an ad hoc Embankment Acquisition Steering Committee ("Steering Committee"). Crowley acted as the project coordinator for the Steering Committee. Plaintiff alleged "on information and belief" that defendants acted as agents of Jersey City.

In July and August 2011, plaintiff requested from the City applications for Green Acres funding during the years 2003-2006 and records generated by the Steering Committee between the years 2003 and 2011 pursuant to the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13. Plaintiff sought from the City such things as Steering Committee minutes, progress charts, account ledgers, resolutions and ordinances, public notices, and lists of attendees at Steering Committee meetings. The City did not produce sworn statements, pursuant to Paff v. N.J. Dept. of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007), attesting to

(1) the search undertaken to satisfy [plaintiff's] request;

 

(2) the documents found that are responsive to the request;

 

(3) the determination of whether the document or any part thereof is confidential and the source of the confidential information; [and]

 

(4) a statement of the [City's] document retention/destruction policy and the last date on which documents that may have been responsive to the request were destroyed.

 

In October 2011, the City denied any knowledge of the Steering Committee and failed to produce responsive Green Acre applications. Although the City was unwilling to search for or produce fully responsive records regarding the Steering Committee documentation, and despite a statement by the City Clerk that the Steering Committee records "were withheld from [plaintiff] based on attorney-client/litigation common interest principle," in November 2011, the City produced a partial response to plaintiff consisting of redacted emails evidencing the existence of the Steering Committee. Based on the City's response to plaintiff's OPRA and common-law right of access document demands, plaintiff concluded that the Embankment Coalition created and maintained additional Steering Committee responsive documentation that defendants refused to produce.

In December 2011, plaintiff filed this complaint against the City seeking documents pursuant to OPRA and the common-law right of access. Plaintiff listed defendants in the complaint alleging that "[r]ecords made or maintained in the course of [their] agency relationship [with the City] are subject to disclosure under OPRA pursuant to Burnett v. [Cnty.] of Gloucester, 415 N.J. Super. 506 (App. Div. 2010)." Plaintiff alleged that the Steering Committee public records were in the possession of defendants and were also subject to disclosure under the common-law right of access. Plaintiff concluded, from the City's initial denial of the existence of the Steering Committee and the City's unwillingness to ask defendants for the records, that the City and defendants were attempting to avoid producing Steering Committee records in defendants' possession.

On February 13, 2012, defendants' counsel wrote plaintiff's counsel a Rule 1:4-8 letter demanding that plaintiff dismiss the complaint against defendants. On February 15, 2012, without waiting the mandatory twenty-eight days required by Rule 1:4-8 and giving plaintiff the opportunity to withdraw or amend its complaint, defendants filed their motion to dismiss the complaint for failure to state a claim upon which relief can be granted. At oral argument before the judge, the parties disputed whether defendants acted as agents for the City.2 Looking beyond the allegations in the complaint, defendants' counsel argued to the judge that no agency relationship existed and stated that

a review of the records supplied to this [c]ourt clearly illustrate[s] that Ms. Crowley's service on the [S]teering [C]ommittee did not come with . . . authority to bind [the City]. There's nothing in the records that have been provided by [plaintiff's counsel] that would even get to the level of where Ms. Crowley is speaking on behalf of the [City] or attempting to bind the [City.] She had no authority to do any of that . . . whatsoever.

The judge concluded that the facts pled in the complaint were insufficient to establish an agency relationship between plaintiff and defendants, the defendants were not public agencies, the Steering Committee documents did not constitute public records under the common law, and plaintiff lacked standing to sue defendants because plaintiff failed to serve defendants with its OPRA requests. As a result, the judge dismissed the complaint with prejudice and awarded Rule 1:4-8 sanctions against plaintiff in the amount of $29,446.50.3

On appeal, plaintiff argues primarily that the judge misapplied the well-settled standards regarding motions to dismiss for failure to state a claim. Plaintiff also contends that the judge erred by essentially adjudicating the agency issue by dismissing the complaint with prejudice; the judge erred by concluding that the Steering Committee documents constituted non-public documents; the judge erroneously entered sanctions pursuant to Rule 1:4-8; and the award of counsel fees was excessive. We focus on the dismissal with prejudice and remand to allow plaintiff an opportunity to amend its complaint.

At oral argument before us, defendants' counsel conceded that pursuant to Burnett, the Steering Committee records were subject to disclosure under OPRA if defendants acted as agents of the City. In addressing plaintiff's agency theory, the judge stated that "there are no facts pled in [the] complaint to support [the existence of] an agency relationship." Although dismissals pursuant to Rule 4:6-2(e) "should ordinarily be without prejudice and plaintiffs generally should be permitted to file an amended complaint," Nostrame v. Santiago, 213 N.J. 109, 128 (2013), the judge dismissed the complaint with prejudice without giving plaintiff the opportunity to amend the complaint. We conclude that, under the facts of this case, dismissing the complaint with prejudice constituted error.

Although not specifically alleged in the complaint, the import of plaintiff's contentions before the judge, and now before us, is that the City attempted to protect the Steering Committee records by essentially delegating their creation and exclusive control to defendants. In effect, plaintiff has contended that defendants thwarted the public policy of transparency under OPRA. The judge essentially concluded from the allegations in the complaint that there were insufficient facts to demonstrate the relationship between the City and defendants. And, plaintiff did not allege clearly in its complaint that it requested that defendants turn over documents created on the City's behalf, or that defendants, unlike the third party in Burnett, refused to turn over the documents. Plaintiff essentially argues, without pleading sufficient facts, that defendants should be enjoined, as agents of the City, from interfering with plaintiff's OPRA and common-law right of access demands against the City, and defendants should therefore be required to produce to plaintiff the Steering Committee records created and exclusively possessed by defendants.

We conclude that plaintiff should be afforded the opportunity to amend its complaint and assert the appropriate facts and causes of action. If defendants still believe that plaintiff has failed to state a viable cause of action, then defendants may file a new Rule 4:6-2(e) motion. The court should then conduct its analysis applying the well-settled standards for motions to dismiss for failure to state a claim. We therefore vacate without prejudice the May 11, 2012 and July 3, 2012 orders sanctioning plaintiff and awarding defendants counsel fees, but permit defendants the opportunity, after they receive plaintiff's amended pleadings, to file a new motion pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8 if warranted.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We shall sometimes collectively refer to the Embankment Coalition and Crowley as "defendants."

2 Defendants' counsel also contended, as he does here, that the complaint violated the Noerr-Pennington doctrine. In general, under the Noerr-Pennington doctrine, participation in judicial and administrative proceedings is protected unless it is "objectively baseless," thereby falling within the "sham" exception to the doctrine. See Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S. Ct. 1920, 1928, 123 L. Ed. 2d 611, 624 (1993). To constitute a "sham," "the lawsuit must be objectively baseless in the sense that no reasonable litigant . . . could conclude that the suit is reasonably calculated to elicit a favorable outcome," and must "conceal 'an attempt to interfere directly with . . . business relationships.'" Ibid. (emphasis omitted). Because the judge did not reach this issue, it remains unresolved and may be addressed on remand if necessary. Helmy v. City of Jersey City, 178 N.J. 183, 192 (2003).

3 The case continued and on October 15, 2012, the judge entered a final judgment against the City. The judge concluded that the City violated OPRA and the common-law right of access by not producing documents, including the Steering Committee records, requested by plaintiff.

At oral argument before us, plaintiff's counsel asked us to consider the language of the October 15, 2012 final judgment against the City to demonstrate that the Steering Committee records are subject to plaintiff's OPRA and common-law right of access document demands, thereby implying that defendants were obligated to turn over the Steering Committee records. But on a motion to dismiss pursuant to Rule 4:6-2(e), our task "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown, supra, 116 N.J. at 746.