ZOZO MOAWAD v. JERSEY CITY POLICE DEPARTMENT RECORDS DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0582-17T4

ZOZO MOAWAD,

           Plaintiff-Appellant,

v.

JERSEY CITY POLICE
DEPARTMENT RECORDS
DEPARTMENT,

     Defendant-Respondent.
__________________________

                    Submitted October 23, 2018 – Decided November 14, 2018

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-2920-17.

                    Zozo Moawad, appellant pro se.

                    Peter J. Baker, Corporation Counsel, attorney for
                    respondent (Maura E. Connelly, Assistant Corporation
                    Counsel, on the brief).

PER CURIAM
      Plaintiff Zozo Moawad appeals from a September 29, 2017 order

dismissing his complaint against defendant City of Jersey City (the City),

improperly pleaded as the Jersey City Police Department Records Department,

with prejudice. We affirm.

      Plaintiff filed an employment discrimination action in federal court

against her former employer Hugh Best, relating to her employment at the

Children's Academy Daycare Center, alleging her former employer and co-

workers falsely reported her to police for shoplifting on numerous occasions.

Neither the City nor the Jersey City Police Department (JCPD) were parties to

the federal action.

      On May 15, 2017, plaintiff served a federal subpoena on the JCPD seeking

"[a]ll and any kinds of police reports and criminal records related to Zozo

Moawad from January 1, 2000 to present." Upon receipt of the subpoena, the

records clerk conducted a search of the JCPD's database, using the names and

employment address provided by plaintiff. The search did not disclose any

responsive records. The records clerk wrote to plaintiff advising her no records

were found using the names provided. The records clerk also advised plaintiff

that if the incident occurred in Bayonne, she would need to contact the Bayonne




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Police Department. Plaintiff did not submit a request under the Open Public

Records Act (OPRA),  N.J.S.A. 47:1A-1 to -13, to the City or the JCPD.

      Plaintiff made an OPRA request for documents to the Hudson County

Prosecutor's Office, a governmental entity separate and distinct from the J CPD.

The OPRA request sought "[a]ll and any kinds of police reports and criminal

records related to Zozo Moawad from January 1, 2000 to present." An assistant

prosecutor responded in writing to the OPRA request, informing plaintiff "there

are no records in the Hudson County Prosecutor's Office that would be

responsive to your request," and that plaintiff's name was not listed "in any

database as a defendant in this office."

      On July 13, 2017, plaintiff filed this action against the JCPD Records

Department, alleging

            I sent a subpoena to the JCPD to release the false police
            reports that were filed against me during my
            employment at the Children's Academy, Daycare in
            Jersey City. The police department denied having any
            reports. I then [sent] an OPRA to the Office of the
            Hudson County Prosecutor. The assistant Prosecutor
            sent me a letter stating that I may take my appeal to the
            Government Records Council and the Superior Court.
            I sent a letter to the Government Records Council and
            they replied stating that I can send the form of denial
            [of] access to Public Records but it would be faster to
            send it to the Superior Court in my county, because the
            court can assess my common law right of access.


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Plaintiff further alleged the reports she sought "are crucial pieces of evidence

for my lawsuit against my former employer" and the refusal to release the reports

"hurt" her lawsuit.

      The trial court issued an order to show cause in favor of plaintiff. The

City moved to dismiss plaintiff's complaint with prejudice pursuant to Rule 4:6-

2(e) for failure to state a claim upon which relief may be granted. Following

oral argument, the trial court issued an oral decision and order dismissing

plaintiff's complaint with prejudice. In its oral decision, the trial court explained

to plaintiff she had options in federal court to enforce the federal subpoena, but

she could not sue the JCPD in State court to enforce the subpoena because it is

not a cause of action under New Jersey law. The judge also noted plaintiff did

not serve an OPRA request on the City, and the OPRA request served on the

Hudson County Prosecutor's Office involved a separate entity. Finding plaintiff

had failed to state a claim, the judge granted the motion to dismiss. This appeal

followed.

      Plaintiff argues the trial court erred in granting dismissal because it said

during oral argument there might be some records in the Police Department, and

plaintiff requested all kinds of records.




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      A reviewing court assessing the dismissal of a complaint under Rule 4:6-

2(e) 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.'" Banco

Popular N. Am. v. Gandi,  184 N.J. 161, 165 (2005) (quoting Printing Mart-

Morristown v. Sharp Elecs. Corp.,  116 N.J. 739, 746 (1989)). The review must

be performed in a manner that is "generous and hospitable." Printing Mart,  116 N.J. at 746. Our role is simply to determine whether a cause of action is

"suggested" by the complaint. Ibid. (quoting Velantzas v. Colgate-Palmolive

Co.,  109 N.J. 189, 192 (1988)). "[I]f the complaint states no basis for relief and

discovery would not provide one, dismissal is the appropriate remedy." Banco

Popular N. Am.,  184 N.J. at 166 (citing Pressler, Current N.J. Court Rules, cmt.

4.1 on R. 4:6-2 (2005)).

      Plaintiff's complaint failed to state a claim upon which relief may be

granted.   Dismissal with prejudice was appropriate since amending the

complaint would be futile. Plaintiff's remedy, if any, is to enforce the subpoena

in federal court pursuant to Fed. R. Civ. P. 45, not in the Superior Court of New

Jersey.




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      Plaintiff's arguments lack sufficient merit to warrant further discussion in

a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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