LUZ F. ALVAREZ v. BOROUGH OF HOBOKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4534-10T3

DOCKET NO. A-4782-10T3

LUZ F. ALVAREZ,

Plaintiff-Appellant,

v.

BOROUGH OF HOBOKEN,

Defendant-Respondent.

__________________________________

LUZ F. ALVAREZ,

Plaintiff-Appellant,

v.

CIRA BARBACCIA,

Defendant-Respondent.

___________________________________

August 16, 2013

 

Argued November 28, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-387-08(A-4534-10), and Bergen County, Docket No. L-1206-11(A-4782-10).

 

Francesco Savoia argued the cause for appellant (Kimm Law Firm, attorneys; Michael S. Kimm, on the brief in A-4534-10; Francis K. Kiu , on the brief in A-4782-10).

 

Dennis P. Liloia argued the cause for respondent, City of Hoboken in A-4534-10 (Florio & Kenny, L.L.P. attorneys; Mr. Liloia, of counsel and on the brief).

 

Diana Powell McGovern argued the cause for respondent, Cira Barbaccia in A-4782-10 (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Joseph A. Turula, on the brief).

PER CURIAM

In these appeals,1 plaintiff Luz F. Alvarez contends the trial court erred by: dismissing her tort claims against the City of Hoboken2 under Rule 4:6-2(e) for failure to state a claim; granting summary judgment to Hoboken and dismissing plaintiff's civil rights claims after she established the existence of genuinely disputed issues of material fact; awarding counsel fees to Hoboken's attorney; denying counsel fees to her; and dismissing her complaint against Cira Barbaccia based on the entire controversy doctrine, res judicata, and collateral estoppel. Having considered plaintiff's arguments in light of the record and controlling law, we affirm the dismissals of plaintiff's complaints but reverse the award of counsel fees.

I.

Because plaintiff's appeal involving Hoboken is from an order granting summary judgment, we review the evidence developed on the motion record in the light most favorable to plaintiff, the non-moving party. R. 4:46-2; Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445 (2000); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed in that light, the evidence establishes that at approximately 3:00 a.m. on January 28, 2006, on a street corner in Hoboken, Barbaccia, without provocation from plaintiff, punched plaintiff in the nose and face. According to plaintiff's deposition testimony, one of her sisters was driving plaintiff and her other sister home after they had socialized at a bar. When they stopped for a traffic light on a road that intersected with Washington Street, the driver in the car behind them started honking the horn, and other occupants of that car rolled down their windows and began to yell. When the light turned green, plaintiff's sisters turned right on Washington Street and the car behind them followed, the driver tailgating their car and continuing to honk her horn.

Plaintiff's sister pulled over at Washington and Second Streets. The car that had been following them also stopped. One of its occupants got out, still screaming. Plaintiff opened her door and stood between it and the car. While standing there, a person who had been riding in the other car, later identified as Barbaccia, punched plaintiff in the face, causing her nose to bleed severely.

Shortly after plaintiff was assaulted, two uniformed police officers arrived. When she requested to press charges, one of the officers said that if she wanted to press charges she would be arrested, and then "kind of dismissed [her] request." She asked to press charges several times, but an ambulance arrived and the police officers "just basically put [her] in the ambulance." Plaintiff was transported to the hospital where she told another police officer that she wanted to press charges against the woman who struck her. He said the same thing the other police officer had said to her; if she wanted to press charges, she would be arrested. Plaintiff was treated in the emergency room and released.

Police officers John Hermann and John Orrico were the officers who spoke with plaintiff and her sisters. They identified the occupants of the other car, including Barbaccia in an incident report and a police department blotter summary. Plaintiff and her sisters did not know the identity of the officers, plaintiff's assailant, or the assailant's accomplices. It would take them more than four years to obtain that information from Hoboken.

Two days after the incident, on January 30, 2006, plaintiff's attorney wrote to Hoboken's police chief requesting copies of all reports of the incident, the identities of the officers who had responded, and the identity of plaintiff's assailant. In the letter, counsel stated:

When the police were summoned, it is my understanding that two officers arrived and advised [plaintiff] that "nothing" would be done about the incident -- which she understood to mean that no charges would be filed by the police against the assailant.

 

Since this is contrary to my understanding of police protocol, I write to inquire on behalf of [plaintiff] an explanation why no charges were filed against the assailant and why [plaintiff] was not provided with an opportunity for herself to file a civilian's complaint against the assailant.

 

Plaintiff's counsel wrote to Hoboken's police chief again on February 3, 2006. In that letter, counsel apologized for missing the Chief's telephone call and then provided a description of the persons who were "with the assaulting woman." The appellate record does not include any evidence that the police chief or anyone else responded to plaintiff's inquiry. But on that same day, plaintiff met with a detective and another gentleman who said they were conducting an internal investigation. The detective showed plaintiff a binder containing photos and asked if she could identify any of the officers. She identified one, but did not know his name. During the meeting, plaintiff told the detective she thought the person who assaulted her was either a police officer, or knew the officers who had responded to the scene of her assault. On April 14, 2006, plaintiff filed a tort claim notice with Hoboken's Municipal Clerk. Later that month, on April 25, 2006, plaintiff's counsel again wrote to Hoboken's police chief, referenced his two earlier letters, and stated he had received no response other than the matter was "under investigation." The attorney repeated his requests for any reports concerning the incident, "investigation of the actors," and "all related matters." No response was forthcoming. Plaintiff's attorney wrote a letter to the Hudson County Prosecutor's Office on the same day, representing that he had learned from the Chief of Police that one or more of the persons who assaulted his client may have been police officers. Plaintiff wrote one last letter to the police chief on September 27, 2006, and once again requested the names, addresses, and titles of those involved in the assault of his client. He received no response.

The lengthy procedural history of this case began on January 23, 2008, when plaintiff filed a four-count complaint against Hoboken. Plaintiff pled causes of action for assault and battery (Count One), negligence (Count Two), violations of 42 U.S.C. 1983 (Count Three) and "Tort Claim: All Defendants" (Count Four). Plaintiff's counsel certified pursuant to Rule 4:5-1, which requires parties to identify in their first pleadings "whether the matter in controversy is the subject of any other action pending . . . or whether any other action or arbitration proceeding is contemplated[,]": "Plaintiff hereby certifies that all parties required to be joined are joined, and that no other action or arbitration is pending or contemplated."

On March 13, 2008, plaintiff served defendants with a demand for documents which included, among other demands, documents identifying "each individual involved in the incident," the employment file "of each person involved in the incident," and "internal investigation documents relating to the incident."3 The ensuing discovery and motion practice is recounted in our opinion in Alvarez v. City of Hoboken, No. A-3922-08 (App. Div. June 7, 2010) and need not be repeated in its entirety. Suffice it to say that Hoboken did not produce any documentary evidence or identify plaintiff's assailant before January 23, 2009, when the trial court denied plaintiff's motion to strike defendant's answer for failure to comply with discovery obligations, granted Hoboken's motions to dismiss the complaint with prejudice and for sanctions. We reversed and remanded. Id., slip op. at 5.

Following our remand, plaintiff filed a motion to have the trial judge recuse himself. The motion was denied.4 The court entered a case management order dated July 7, 2010, that required each party to serve the other with demands for more specific answers to interrogatories within ten days, those demands to be answered by August 16, 2010; and further required that depositions of parties and fact witnesses be completed by September 16, 2010, a deadline that was later extended through November 16, 2010.

On August 5, 2010, more than four and one-half years after plaintiff first requested the information, Hoboken provided plaintiff with a single-page incident report and a two-page blotter summary that documented the incident in which plaintiff was assaulted, identified the officers who responded, and identified Cira Barbaccia and the acquaintances who were with her when she assaulted plaintiff.5 Despite receiving that information, plaintiff neither moved to amend her complaint to identify the police officers or Barbaccia as additional defendants, nor did she amend the Rule 4:5-1 certification in the original complaint, which stated that all parties required to be joined had been joined, and that no other action or arbitration was pending or contemplated.

The parties completed depositions in November 2010. During his deposition, the lieutenant in charge of internal affairs testified that he was aware of no reason why it took more than four years for the Hoboken Police Department to produce the incident report. He explained, generally, that delays in producing reports could result from different reasons, including legal questions, but in his twenty-two years as a law enforcement officer he had never seen a request take four years.6

Plaintiff's counsel asked no one he deposed whether Barbaccia was a Hoboken employee or a Hoboken police officer.

On November 30, 2010, Hoboken filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted. Plaintiff cross-moved to compel Hoboken to produce its internal affairs file. On December 17, 2010, the court entered an order dismissing the tort claims alleged in counts one, two, and four of plaintiff's complaint, but denying without prejudice Hoboken's motion to dismiss plaintiff's civil rights claim. The order also compelled Hoboken to produce its police department's internal affairs file. Hoboken produced the internal affairs file on December 21, 2010.

Hoboken filed a summary judgment motion on December 29, 2010, returnable February 4, 2011. The court granted the motion, dismissing plaintiff's complaint with prejudice.

On March 18, 2011, the court denied plaintiff's motion for reconsideration and granted Hoboken's motion for sanctions. Plaintiff appealed. On April 28, 2011, we granted defendant's motion to dismiss the appeal because the trial court had yet to determine the amount of sanctions to be paid by plaintiff's counsel.

Meanwhile, on the same day that the court had granted summary judgment to Hoboken, plaintiff filed a complaint against Barbaccia in Bergen County. Barbaccia subsequently filed a motion under Rule 4:6-2(e) to dismiss the Bergen County action against her based on, among other things, the statute of limitations and the entire controversy doctrine. The court granted that motion on April 29, 2011. Two days earlier, the court in Hudson County had entered an order awarding Hoboken counsel fees in the amount of $32,543.36. This appeal followed.

II.

Plaintiff argues the trial court erred by dismissing under Rule 4:6-2(e) the tort claims she alleged against Hoboken, and by dismissing her civil rights claim against Hoboken on summary judgment. She also maintains that the court had no basis for sanctioning her, and instead should have sanctioned Hoboken for obstructing her discovery efforts. Plaintiff also contends the trial court was biased and should have granted her recusal motion. Lastly, plaintiff contends that the court erred by dismissing her complaint against Barbaccia under the entire controversy doctrine, res judicata, or collateral estoppel, and that in any event, the court should have permitted the parties to develop an adequate record before dismissing her complaint against Barbaccia.

We begin by addressing the court's dismissal under Rule 4:6-2(e) of her tort claims against Hoboken. Plaintiff contends that the court disregarded the explicit requirements of that rule by considering materials outside of the complaint. Plaintiff argues that when Hoboken submitted materials outside of the complaint, the court should have treated the motion as one for summary judgment and provided plaintiff with sufficient time to respond to a summary judgment motion. Hoboken has not addressed those alleged deficiencies in the court's decision. Instead, Hoboken responds by discussing certain liability and immunity provisions in New Jersey's Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA).

Rule 4:6-2(e) provides in pertinent part:

Every defense . . . to a claim for relief in any complaint . . . shall be asserted in the answer thereto, except that the following defenses, unless otherwise provided by R. 4:6-3, may at the option of the pleader be made by motion, with briefs: . . . (e) failure to state a claim upon which relief can be granted . . . . If a motion is made raising any of these defenses, it shall be made before pleading if a further pleading is to be made. No defense or objection is waived by being joined with one or more other defenses in an answer or motion. Special appearances are superseded. If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.

 

When considering a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a trial court must determine "whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989). The court must "'search[] 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 Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Nevertheless, "[t]he motion may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiffs' claim must be apparent from the complaint itself." Edwards v. Prudential Prop. and Cas. Co., 357 N.J. Super. 196, 202 (App. Div.), certif. denied, 176 N.J. 278 (2003). "[I]n reviewing a "Rule 4:6-2(e) dismissal, we apply the same standard." Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011).

The motion that resulted in the court dismissing plaintiff's tort claims against Hoboken was brought and decided under Rule 4:6-2(e). Hoboken captioned the motion as one to dismiss under Rule 4:6-2(e) and filed it on a return date seventeen days after the motion was dated, not on twenty-eight days' notice as required by Rule 4:46-1 for summary judgments. Once more, at oral argument when plaintiff argued that the motion should be considered as a summary judgment motion, Hoboken's attorney responded: "I think my motion for a dismissal is valid and warranted, it's not a summary judgment motion."

Yet, Hoboken ignored the explicit provision in Rule 4:6-2(e) that the defense of failure to state a claim upon which relief can be granted, if raised by motion, "shall be made before pleading if a further pleading is to be made."7 Moreover, the trial court apparently overlooked the provision in Rule 4:6-2(e) that if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Rule 4:46[.]" (emphasis added). Although it is not entirely clear whether the trial court decided the motion under Rule 4:6-2(e) or as a motion for summary judgment, two things are clear: the court considered documents outside of the complaint and decided the motion on less than twenty-eight days' notice to plaintiff.

Despite those procedural flaws, we nevertheless affirm the dismissal of the tort claims against Hoboken. See Osoria v. W. N.Y. Rent Control Bd., 410 N.J. Super. 437, 439 (App. Div. 2009) (noting that a decision may be affirmed on grounds other than those relied upon by the trial court). We reach that decision because plaintiff did not argue in response to Hoboken's motion to dismiss that the complaint stated a cause of action in tort. In fact, plaintiff has made no such argument before us. The complaint does not state a cause of action in tort against Hoboken, as distinguished from its police officers, and nothing plaintiff has pled or proved suggests such a cause of action.

Motions under Rule 4:6-2(e) "are judged by determining 'whether a cause of action is 'suggested' by the facts.'" Nostrame v. Santiago, 213 N.J. 109, 127 (2013) (quoting Printing Mart, supra, 116 N.J. at 746). Implicit in that principle is the proposition that the complaint must state some facts. Rule 4:5-2 states the requirement explicitly: "a claim for relief . . . shall contain a statement of the facts on which the claim is based, showing that pleader is entitled to relief . . . ."

Plaintiff's complaint contains no fact that suggests a cause of action in tort against Hoboken. Hoboken is, indisputably, a public entity. Public entities "shall only be liable for their negligence within the limitations of [the TCA]." N.J.S.A. 59:1-2. Plaintiff's complaint mentions no provision of the TCA, and plaintiff has not explained how any fact asserted in her complaint establishes a cause of action under the TCA.

The common allegations in the complaint assert that plaintiff "was the victim of an intentional assault and/or negligence committed by [three] unknown and unidentified actors believed to be employed by Hoboken[.]" Plaintiff alleges that she was a passenger in a car that stopped at a light, and that "[d]efendants suddenly approached the vehicle in which plaintiff was riding and struck plaintiff and caused one or more blows to land upon her face and nose." Immediately after pleading that cause of action, plaintiff characterizes the conduct of defendants as "willful, reckless, negligent and malicious." But the facts state a cause of action for intentional assault and battery. Although plaintiff gratuitously characterizes the conduct as "negligent," she pleads no facts that establish a cause of action for negligence, as distinguished from an intentional tort. Plaintiff does not allege in the complaint, and does not explain now, how the assault could have been perpetrated negligently.

Plaintiff stated her "facts" under the section of the complaint entitled "common allegations." The actual counts of the complaint contain no facts. Count one incorporates the previous allegations and further alleges "[d]efendants are liable for assault and battery." Count two incorporates the previous allegations and further alleges "[d]efendants are liable for negligence." Count four incorporates the previous allegations and further alleges [d]efendants "were negligent, grossly negligent or reckless in causing plaintiff's injuries." The conclusory allegations set forth in counts one, two, and four, which do not constitute facts, are insufficient to sustain a cause of action for negligence.

Hoboken would not be liable for Barbaccia's intentional tort even if she and her accomplices were public employees. "A public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct." N.J.S.A. 59:2-10.

Hoboken would be accountable for its employees' negligent conduct. See N.J.S.A. 59:2-2(a) ("A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances."). But, as we have discussed, plaintiff has alleged no facts that establish a negligence claim against Barbaccia. Thus, but for the procedural flaws, the trial court correctly dismissed counts one, two, and four of plaintiff's complaint under Rule 4:6-2(e).

We recognize that a motion to dismiss under Rule 4:6-2(e) should ordinarily be dismissed without prejudice. See Printing Mart, supra, 116 N.J. at 746. That is particularly so when the motion is made before the moving party files a responsive pleading. Here, however, plaintiff has had the opportunity to take discovery. She has developed no facts that suggest Barbaccia was employed by Hoboken, and did not attempt to develop such facts when she had the opportunity to do so during discovery. Under those circumstances, remanding this matter would be a meaningless exercise. Consequently, despite the procedural errors previously discussed, we affirm the dismissal of counts one, two, and four.

III.

We turn to plaintiff's claim that the trial court improperly dismissed, on summary judgment, count three of her complaint, alleging a violation of 42 U.S.C. 1983. Plaintiff argues that, though originally alleging "the assaulting party may have been a police officer or the like," after she obtained the incident report, her focus shifted to Officer Hermann and Hoboken's Police Department's internal affairs unit. Plaintiff now alleges that Officer Hermann's alleged threat "led to plaintiff's coerced non-assertion of her right to petition the government for criminal charges against the person who assaulted her[.]" Plaintiff defines this allegation as "the crux of [her] refined 1983 claim."

42 U.S.C. 1983, entitled "Civil Action for Deprivation of Rights," states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Municipalities are "included among those persons to whom 1983 applies." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611, 635 (1978). Nevertheless, "the doctrine of respondeat superior is not a basis for rendering municipalities liable under 1983 for the constitutional torts of their employees." Id. at 663, n.7, 98 S. Ct. 2018, 2022, 56 L. Ed. 2d 611, 619. Rather, "the touchstone of the 1983 action against a government body is an allegation that official policy is responsible for the deprivation of rights protected by the Constitution." Ibid. By requiring "that tortious conduct . . . must be pursuant to a municipality's 'official policy'" for a municipality to be liable under 1983, the Supreme Court "intended to distinguish acts of the municipality from acts of the employees of the municipality, and thereby made clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452, 463 (1986).

Thus, "a municipality . . . can be held liable for acts committed by one of its employees or agents, pursuant to a government policy or custom, that violate the Constitution." Besler v. Bd. of Educ. of W. Windsor, 201 N.J. 544, 565-566 (2010) (citing Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638). A municipality also may be liable for a single decision of an official who "possesses final authority to establish municipal policy with respect to the action ordered." Stomel v. City of Camden, 192 N.J. 137, 146 (2007) (quoting Pembaur, supra, 475 U.S. at 481-83, 106 S. Ct. at 1299-1300, 89 L. Ed. 2d at 464-65 (1986)). And, where a municipal employee's decision "is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the [employee's] conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926, 99 L. Ed. 2d 107, 120 (1988) (emphasis added).

An "'official policy' usually refers to formal governmental rules or practices." Stomel, supra, 192 N.J. at 146 (citing Pembaur, supra, 475 U.S. at 480, 106 S. Ct. at 1298, 89 L. Ed. 2d at 463). A custom, on the other hand, comes into existence "when, though not authorized by law, 'such practices of state officials [are] so permanent and well-settled' as to virtually constitute law." Andrews v. Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Monell, supra, 436 U.S. at 690, 98 S. Ct. at 2036, 56 L. Ed. at 635). A plaintiff attempting to prove a 1983 action must also prove causation, that is, that the "custom, or policy, or the action of [a] final policymaker, is the moving force that causes a violation of a constitutional right." Besler, supra, 201 N.J. at 566-567 (citing Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638).

Here, in opposition to Hoboken's summary judgment motion, plaintiff presented no evidence from which a jury could have inferred either that Officer Hermann was a policymaker or that he acted pursuant to a municipal policy or custom. Plaintiff claims that Officer Hermann acted as the final policymaker when he declined plaintiff's request to file a complaint against Barbaccia; and the internal affairs unit ratified Hermann's conduct by failing to take any action against him. We are unpersuaded by those arguments.

In fact, Officer Hermann denied that he had dissuaded plaintiff from filing a complaint against Barbaccia. Whether a person is a policymaker is a question of state law. Pembaur, supra, 475 U.S. at 483, 106 S. Ct. at 1300, 89 L. Ed. 2d at 465; Besler, supra, 201 N.J. at 566.

Plaintiff has cited no authority for the proposition that patrolmen are policymakers, or that the rank of patrolman, within the paramilitary structure of a police department, carries with it the authority to make policy. Contrary to plaintiff's assertion, there is no evidence in the record before us that suggests Officer Hermann was a policymaker with final decision-making authority.

Nor is there any competent evidence that Hoboken ratified Hermann's alleged conduct. Plaintiff produced no competent evidence that Hoboken's authorized policymakers approved Officer Hermann's alleged misconduct. Moreover, plaintiff's argument fails to take into consideration that a municipal employee's misconduct must result from a policy or custom. Plaintiff produced no such evidence here. Failure to discipline a police officer for a single incident, in which a plaintiff makes an accusation disputed by the officer, does not constitute approval and ratification of unconstitutional conduct so as to give rise to a cause of action under 1983.

IV.

Plaintiff next contends the trial court erred by awarding counsel fees to Hoboken. Following our remand of this matter to the trial court in June 2010, Hoboken demanded on three separate occasions that plaintiff dismiss her complaint. Hoboken sent the first letter to plaintiff's counsel on August 31, 2010, three weeks after it had produced the police blotter summary and incident report identifying its officers and Barbaccia. Hoboken made similar demands in letters written on September 29, 2010, and December 22, 2010, the latter having been prepared the day after Hoboken finally produced its internal affairs file. In all three letters, Hoboken asserted that plaintiff's "complaint violate[d] the provision of R. 1:4-8 and N.J.S.A. 2A:15-59 regarding frivolous litigation."

Following the trial court's grant of summary judgment to Hoboken, Hoboken filed a motion for sanctions. Plaintiff filed a cross-motion seeking fees and costs. After hearing oral argument on March 18, 2011, the court granted Hoboken's application for counsel fees under Rule 1:4-8.8 In awarding Hoboken fees, the court noted that plaintiff had failed to conduct any formal discovery, including propounding interrogatories or serving a request for documents, and had resisted appearing for her own deposition. The court also noted that "plaintiff and counsel continue to insist that Hoboken's employees assaulted plaintiff even after the assailant was identified by the defendant." The court reasoned that because plaintiff never amended her complaint to include the proper defendant "or to correct the allegations as against the defendant in light of the evidence[,] . . . the plaintiff never had any claims supported by evidence that she suffered [a] qualifying injury [under the TCA]." The court concluded that "[t]hese are not actions taken by an attorney in my opinion in good faith. There was no reasonable good faith belief that the plaintiff was entitled to recover."

Hoboken subsequently submitted a supplemental certification itemizing the fees and costs it incurred between June 30, 2010 when we remanded the matter, and April 4, 2011, when Hoboken prepared its certification in support of its fee application. Hoboken sought $32,543.36 in fees and costs. In a letter dated April 28, 2011, the court awarded those fees in their entirety. In the letter, the court stated that it found the fees were reasonable and necessary and that the hourly rate reflected in the fee application was reasonable. The court concluded that due to "the failure of [p]laintiff's counsel to pursue the case diligently and [his] decision to continue the case when it was apparent that the case against the municipality lacked merit, fee shifting is appropriate." We disagree.

Rule 1:4-8(a) provides, among other things, that by signing a pleading an attorney

certifies to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances[, that] . . . (to) the claims, defenses and other legal contentions therein are warranted by existing law . . . [and] 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[.]

 

The rule limits sanctions for violations of Rule 1:4-8(a) "to a sum sufficient to deter repetition of such conduct." R. 1:4-8(d). The rule explicitly requires that a court include in the order imposing sanctions a description of the conduct determined to be a violation of the rule and an explanation of the basis for the sanction imposed.

The rule "has a punitive purpose in seeking to deter frivolous litigation" and "seeks to compensate a party that has been victimized by another party bringing frivolous litigation." Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 545 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010).

The imposition of sanctions under the Rule is not restricted to a situation where an attorney files a frivolous complaint. We have recognized in the context of the frivolous claims statute, N.J.S.A. 2A:15-59.1, "that continued prosecution of a claim or defense may, based on facts coming to be known to the party after the filing of the initial pleading, be sanctionable as baseless or frivolous even if the initial assertion of the claim or defense was not." Iannone v. McHale, 245 N.J. Super. 17, 31 (App. Div. 1990).

We review a trial court's award of sanctions pursuant to Rule 1:4-8 under an abuse of discretion standard. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). An "abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid. Here, we conclude that the trial court failed to consider all relevant factors, and based its decision in part upon irrelevant or inappropriate factors. For that reason, we also conclude the trial court abused its discretion when it awarded fees to Hoboken.

In its oral decision and again in its letter awarding fees to Hoboken, the trial court determined the sanction was appropriate because plaintiff had failed to conduct any formal discovery and had failed to pursue the case diligently. Indisputably, an attorney has an obligation to "act with reasonable diligence and promptness in representing a client." N.J. Rules of Professional Conduct 7.5. And the Rules of Court authorize sanctions when litigants fail to make discovery in civil actions. See e.g., Rule 4:23-5 (authorizing the dismissal first without prejudice, then with prejudice, as a sanction for a litigant's continuing non-compliance with the obligation to provide interrogatory answers, respond to a demand for documents, or appear for a physical examination); Rule 4:23-2 (authorizing sanctions for failing to comply with discovery orders). The purpose of Rule 1:4-8, however, is to deter frivolous litigation, not to sanction discovery violations. A party may have a meritorious claim and nonetheless have the claim dismissed for failing to make discovery. Here, when the court imposed frivolous-claim sanctions due to plaintiff's counsel's failure to diligently pursue discovery, it abused its discretion by basing its decision on an irrelevant factor. Masone, supra, 382 N.J. Super. at 193.

Additionally, the trial court failed to consider all relevant factors. Significantly, plaintiff requested the incident report from the Hoboken Police Chief on January 30, 2006, three days after she was assaulted. Hoboken did not produce the police report until August 5, 2010, more than four years after plaintiff had first requested it. Hoboken did not turn over its internal affairs file to plaintiff until December 21, 2010, more than four years after plaintiff had first requested "a copy of all reports of this incident," and after plaintiff had taken the depositions of Officer Hermann and the Police Department's Internal Affairs officer. In its decision, the trial court never mentioned Hoboken's long delay in producing those documents.

The court based its decision in part on plaintiff's "decision to continue the case when it was apparent that the case against the municipality lacked merit." Specifically, the court found that "plaintiff and counsel continue[d] to insist that Hoboken employees assaulted plaintiff even after the assailant was identified by the defendant." But the court never identified when plaintiff learned that Barbaccia was not a Hoboken employee. Assuming the court was referring to Hoboken's disclosure of the incident report, which occurred on August 25, 2010, then left unexplained was why the court awarded counsel fees from June 10, 2010. More significantly, the court did not evaluate what effect Hoboken's prolonged delay in disclosing the incident report, the blotter summary, the identity of plaintiff's assailants, and the identity of the police officers who investigated the incident, had on plaintiff's good faith belief that Hoboken was protecting the identity of an employee.9

Because the trial court based its fee award under Rule 1:4-8 on an improper consideration, namely, the dilatory conduct of plaintiff's counsel during discovery; and because the trial court did not address, in either its oral decision or in its written award of fees, exactly when plaintiff should have known Barbaccia was not a Hoboken employee; we conclude the trial court abused its discretion and reverse the award of fees.

V.

We next address the trial court's dismissal of plaintiff's Bergen County complaint against defendant Barbaccia. Plaintiff filed the complaint on February 4, 2011, the day Hoboken was granted summary judgment in Hudson County, and six months after plaintiff had received the Hoboken Police incident report identifying Barbaccia as her assailant. In lieu of an answer, Barbaccia filed a motion to dismiss under Rule 4:6-2(e), alleging, among other things, that the complaint was barred by the statute-of-limitations, N.J.S.A. 2A:14-2, and by the entire controversy doctrine. The court granted the motion on April 29, 2011.

The court rejected Barbaccia's statute-of-limitations arguments but dismissed the case under the entire controversy doctrine, "and in the alternative on the basis of res judicata . . . [and] collateral estoppel[.]" As to the entire controversy doctrine, the court determined that plaintiff's conduct in not joining Barbaccia in the Hudson County action was inexcusable, and that Barbaccia had been substantially prejudiced by the delay. The court explained that after plaintiff learned of Barbaccia's identity on August 5, 2010, she could have easily amended the complaint. The court noted that discovery in the Hudson County case had been extended through November 2010.

The court further explained that five years and four months had passed between the incident and the date plaintiff filed her complaint against Barbaccia. The court noted: "memories fade, witnesses move, documents are destroyed. That's the substantial prejudice that would and has [occurred]."

Plaintiff argues that the entire controversy doctrine should not have barred her case because the Hoboken action "never resulted in a judgment or settlement that implicated the assault case"; the Bergen County case against Barbaccia was not a "successive action"; and because plaintiff had "no idea as to the identity of defendant Barbaccia and commenced this action as soon as plaintiff came to be aware of Barbaccia's identity, Barbaccia suffered no prejudice."

Barbaccia responds that plaintiff's assertions that the Hudson County complaint did not implicate the assault action against her, and that she filed the Bergen County action as soon as she became aware of Barbaccia's identity, are spurious and false. Barbaccia points out that the basis of the Hudson County action was the alleged assault, and that plaintiff waited six months after she learned of Barbaccia's identity before filing the Bergen County action. Barbaccia also asserts that plaintiff cannot prove the Bergen and Hudson County actions were pending at the same time, because the filed Bergen County complaint is not time-stamped, and could have been filed after the court dismissed on summary judgment the Hudson County case. Barbaccia maintains that the court correctly dismissed plaintiff's complaint under the entire controversy doctrine.

Rule 4:30A, entitled "Entire Controversy Doctrine," provides:

Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).

 

The two goals of the entire controversy doctrine are "ensuring fairness to parties and achieving economy of judicial resources." Kent Motor Cars, Inc. v. Reynolds & Reynolds, 207 N.J. 428, 443 (2011). The Supreme Court has accomplished those goals by requiring joinder of claims, Rule 4:30A, and by requiring the parties to identify in their first pleadings "the names of any non-party who should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts." R. 4:5-1(b)(2). The parties to an action have a continuing obligation to amend the initial disclosure if there is a change in the facts stated in the original certification, and "the court may impose an appropriate sanction including dismissal of a successive action against a party whose existence was not disclosed[.]" Ibid.

Application of the entire controversy doctrine is left to the sound discretion of the trial court. 700 Highway 33 L.L.C. v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011). When a trial court is presented with a motion to dismiss a complaint under the entire controversy doctrine, it

must first determine from the competent evidence before it whether a Rule 4:5-1(b)(2) disclosure should have been made in a prior action because a non-party was subject to joinder pursuant to Rule 4:28 or Rule 4:29-1(b). If so, the court must then determine whether (1) the actions are "successive actions," (2) the opposing party's failure to make the disclosure in the prior action was "inexcusable," and (3) "the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action." R. 4:5-1(b)(2). If those elements have been established, the trial court may decide to impose an appropriate sanction. Dismissal is a sanction of last resort.

 

[Id. at 236-237.]

 

When plaintiff was provided with the police incident report that identified Barbaccia, she should have amended her pleadings in the Hoboken action to substitute Barbaccia for one of the fictitiously named defendants. R. 4:26-4. Her failure to do so is inexplicable. Having failed to file the required motion to amend the complaint, plaintiff was required to amend her Rule 4:5-1(b)(2) certification to identify Barbaccia as a party potentially liable to her on the basis of the same transactional facts underlying her complaint.

Plaintiff's Hudson and Bergen County actions were "successive" for purposes of the entire controversy doctrine. Although the record does not disclose whether plaintiff filed the Bergen County action after the court granted summary judgment to Hoboken in the Hudson County action, plaintiff's counsel is certainly capable of answering that question. And if counsel filed the Bergen County action before arguing the motion in Hudson County, he was obligated to disclose the Bergen County action to the Hudson County judge. R. 4:5-1(b)(2). Considering those circumstances, we decline to countenance plaintiff's effort to defeat the purpose of the entire controversy doctrine by disregarding the rules intended to implement that doctrine, and by withholding information relevant to its application. Realistically, litigation of the merits of plaintiff's complaint against Hoboken ended when the court granted Hoboken's summary judgment motion. When that happened, Barbaccia had yet to answer the Bergen County complaint. Plaintiff was attempting to engage in the kind of fragmented litigation the entire controversy is intended to avoid. The actions were successive for purposes of the entire controversy doctrine.

Plaintiff has offered no excuse for failing to either amend her complaint or amend her disclosure about other parties in the Hudson County action. Both omissions are inexcusable.

Plaintiff asserts that she commenced the Bergen County action "as soon as plaintiff came to be aware of Barbaccia's identity," and for that reason Barbaccia suffered no prejudice. That assertion is simply untrue. Plaintiff did not commence the Bergen County action until six months after Barbaccia's identity was disclosed in the Hudson County action. In the interim, the parties had completed discovery in the Hudson County action, including depositions. Considering the dilatory and manipulative conduct of plaintiff's attorney, and further considering that "[t]he entire controversy doctrine is an equitable principle and its application is left to judicial discretion," 700 Highway 333 L.L.C., supra, 421 N.J. Super. at 238, we discern no reason to disturb the trial court's discretionary determination.

VI.

We have considered plaintiff's remaining arguments and have determined that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part and reversed in part.

 

 

1 The appeals were calendared back-to-back, and we now consolidate them for disposition in this opinion.

2 Plaintiff improperly identified Hoboken in her complaint as the Borough of Hoboken.

3 Hoboken's counsel would later represent to the court that his firm did not receive plaintiff's discovery request.

4 We denied plaintiff's motion for leave to file an interlocutory appeal.

5 In the police blotter summary that was provided to plaintiff, Barbaccia's account of the incident differed substantially from that of plaintiff

6 Plaintiff also deposed Officer Hermann, who testified that he advised her and her sisters that they had the right to file a complaint against the woman with whom they were fighting.

7 Rule 4:6-7 provides that the defense of failure to state a claim upon which relief can be granted "may be made . . . by motion for summary judgment or at trial on the merits."

8 The parties confirmed at oral argument that the court awarded the sanction against plaintiff's counsel, not plaintiff.

9 We note that plaintiff's counsel represented in his letter to the Hudson County Prosecutor that counsel "came to learn from the Police Chief that one or more of the individuals who assaulted my client may have been 'police officers.'" That assertion was apparently never refuted. We also recognize the dispute between counsel about whether defense counsel received plaintiff's document demand for relevant reports. The trial court did not mention that dispute when it rendered its decision awarding fees to Hoboken.