MONICA A. THORS v. AARON JAMES LAMBERT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3493-10T1

MONICA A. THORS,

Plaintiff-Appellant,

v.

AARON JAMES LAMBERT,

Defendant-Respondent,

and

THOMAS FREDERICK VERNOOY,

JUDI LEVIT and WINNERS

INTERNATIONAL FARM,

Defendants.

________________________________________________________________

February 1, 2012

Submitted November 30, 2011 - Decided

Before Judges Harris and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3707-09.

Begelman, Orlow & Melletz, attorneys for appellant (Paul R. Melletz, on the brief).

Respondent Aaron James Lambert has not filed a brief.

PER CURIAM

Plaintiff Monica A. Thors appeals from the February 14, 2011 order dismissing her pro se complaint with prejudice. The trial judge entered the order after denying plaintiff s motion to amend her complaint. After reviewing the record in light of the contentions advanced on appeal, we conclude that the dismissal with prejudice represents an abuse of discretion and reverse.

Thors is a horse trainer who was a tenant at Winners International Horse Farm (Winners) in Chesterfield. Defendant Aaron James Lambert was also a tenant. Both rented horse stalls from Winners.

Thors filed a complaint in October 2009 against Winners, the owner and the manager of Winners, and Lambert. Her complaint alleged that between December 2008 and October 2009, Lambert interfered with her business, discriminated against her and harassed her through the following actions: pushing a door into her and knocking her over, intentionally spraying water at her and her employees, twice turning her horse loose, screaming at her, playing loud music, making obscene gestures, taking her personal property, scaring her horse with a golf cart, advising her employees to quit, and other bothersome behavior. She further alleged that the co-defendants also engaged in various hurtful activity.

The co-defendants' motions to dismiss pursuant to Rule 4:6-2(e) were granted on October 15, 2010. Thors does not appeal that decision.

On November 10, 2010, the complaint as to Lambert was dismissed without opposition. Thors filed a motion for reconsideration and for permission to file an amended complaint, indicating she was not informed of Lambert's motion to dismiss. The motion judge granted Thors' motion for reconsideration and denied her motion to file an amended complaint, noting that her motion was not filed against the co-defendants, who had put Thors on notice pursuant to the frivolous litigation statute. See N.J.S.A. 2A:15-59.1 and R. 1:4-8. The motion judge also noted that plaintiff was seeking not only to put her allegations in an "easier format" because the original complaint was "incomprehensible," but also to add new causes of action, such as assault and battery, as well as a claim for punitive damages. The motion judge commented that Thors' claims had already been considered and dismissed in both municipal and bankruptcy courts. After reconsideration, the judge again found that the original complaint did not state a cause of action and dismissed the complaint. The judge observed that Thors' counsel had been involved in the case for nine months and filed the motion to amend the complaint in response to Lambert's motion to dismiss. On that basis, she denied Thors' application to file an amended complaint and signed an order dismissing the original complaint with prejudice.

Under Rule 4:9-1, "[a] party may amend any pleading as a matter of course at any time before a responsive pleading is served." Any time after the responsive pleadings are filed, "a party may amend a pleading only by written consent of the adverse party or by leave of court[.]" R. 4:9-1. The Rule directs that the court's permission to amend "shall be freely given in the interest of justice." Ibid. If the amended complaint arises "out of the conduct, transaction, or occurrence set forth . . . in the original pleading, the amendment relates back to the date of the original pleading." R. 4:9-3. In such cases, the statute of limitations will not bar the amended claim.

The decision to either allow or deny amended claims is a fact-sensitive one, and is subject to a trial judge's sound discretion. Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994); see also Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). On appeal, we review simplyto determine whether or not that discretion was abused, according proper deference to the trial judge's day-to-day responsibilities for case management. Fisher, supra, 270 N.J. Super. at 467.

Although the general inclination under our court rules is to permit amended claims, there are well-established limits. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). "'[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law.'" Notte, supra, 185 N.J. at 501-02 (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)). "'[T]here is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'" Ibid. In addition, even where the merits of the claim are marginally meritorious, it is not an abuse of discretion to deny leave to add such a claim when it is likely to prolong the litigation. Stuchin v. Kasirer, 237 N.J. Super. 604, 609 (App. Div.), certif. denied, 121 N.J. 660 (1990); see also Pressler and Verniero, Current N.J. Court Rules, comment 2.2.1 on R. 4:9-1 (2012) (noting that a motion to amend is properly denied "where its merits are marginal, its substance generally irrelevant to the main claim, and allowing the amendment would unduly protract the litigation").

Although the motion judge intimated that Thors' original complaint did not state a viable cause of action, insufficient findings were made for us to review such a conclusion. Moreover, "[w]e approach our review of the judgment below mindful of the test for determining the adequacy of a pleading: whether a cause of action is 'suggested' by the facts" alleged. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). When reviewing a complaint dismissed for failure to state a claim, "our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Ibid. (citing Rieder v. Dept. of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). Thus, "a reviewing court 'searches the complaint 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, opportunity being given to amend if necessary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). At this stage of the litigation, we do not focus on the plaintiff's ability to prove the allegations in the complaint. Ibid. (citing Somers Constr. Co. v. Board of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961)). Instead, plaintiff is "entitled to every reasonable inference of fact." Ibid. (citing Indep. Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956)). As such, "'[i]f a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion.'" Smith v. SBC Communs., Inc., 178 N.J. 265, 282 (2004) (quoting F.G. v. MacDonell, 150 N.J. 550, 556 (1997)) (alteration in original).

Read liberally, the facts alleged in Thors' original complaint state a cause of action for assault, as she claims Lambert intentionally hit her with a door and sprayed her with water. Her complaint, while difficult to understand, also sets forth sufficient facts to allege a cause of action for tortious interference with prospective economic advantage.1 See Macdougall v. Weichert, 144 N.J. 380, 404 (1996) (citing Printing Mart-Morristown, supra, 116 N.J. at 751-52).

Furthermore, we are convinced that the motion judge erred by dismissing the complaint with prejudice. A motion to dismiss for failure to state a claim "ordinarily is granted without prejudice." Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009) (citing Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 282 (2004)). No reasons were given for departing from that general rule. See ibid.

1 The Supreme Court has set forth four requirements for maintaining an action for tortious interference with a prospective economic advantage. See Macdougall, supra, 144 N.J. at 404 (citing Printing Mart-Morristown, supra, 116 N.J. at 751-52). The complaint must present facts to allege (1) some reasonable expectation of economic advantage; (2) that the interference was done intentionally and with malice; (3) that in the absence of interference, there was a reasonable probability that the victim would have received the anticipated economic benefits; and (4) that the injury caused damage. Ibid. (citation omitted).