SABRINA PAGAN and MARIA OLIVARES v. EDUARDO RIVERA

NOT FOR PUBLICATION WITHOUT THE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-3096-19

SABRINA PAGAN and
MARIA OLIVARES,

          Plaintiffs-Respondents,

v.

EDUARDO RIVERA,

     Defendant-Appellant.
__________________________

                   Argued March 3, 2021 – Decided March 29, 2021

                   Before Judges Alvarez and Geiger.

                   On appeal before the Superior Court of New Jersey,
                   Law Division, Hudson County, Docket No. L-4810-19.

                   Ruby Kumar-Thompson argued the cause for appellant
                   (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Ruby
                   Kumar-Thompson, on the briefs).

                   Jeffrey A. Bronster argued the cause for respondents.

PER CURIAM
      Defendant Eduardo Rivera appeals from a February 14, 2020 order

granting plaintiffs Sabrina Pagan and Maria Olivares' motion for leave to file a

late notice of tort claim. For the following reasons, we vacate the order.

      We derive the following facts from the record. On February 4, 2019,

plaintiffs filed a five-count complaint against defendants Edwin Perez, Michael

Kelly, and John Does in the Superior Court (Docket No. HUD-L-501-19). Perez

is an officer in the Jersey City Police Department and was sued in both his

individual and official capacity. Kelly is the Chief of the Jersey City Police

Department and was sued only in his official capacity.

      The complaint stated that plaintiffs filed a timely notice of tort claim on

June 18, 2018. The notice of tort claim was served on Kelly and the Jersey City

municipal clerk. It named Perez as the responding officer and the Jersey City

Police Department as the responsible governmental entity.

      The complaint alleged that "Pagan had obtained an Order of Protection

against [her] former boyfriend, Brian Miller, as a result of his physical violence

against her." "Thereafter, Miller engaged in a course of harassing conduct

against Pagan, including sending her threatening texts." On May 13, 2018,

Pagan received a threatening telephone call from Miller. "[T]hreatening texts




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from Miller indicated that he was watching her from nearby, and might[,] in

fact[,] be inside her building, which he had broken into in the past."

      Pagan and Olivares drove to the police station to explain these events and

their fear that Miller was inside the house. Pagan was advised that a police car

would be sent "to her house and instructed her to wait for the police car outside

the house." Perez eventually arrived alone and spoke to plaintiffs. Plaintiffs

explained the situation in detail to Perez, including Miller's prior violence, the

fact he had previously broken into Pagan's home, and the threatening texts he

sent to Pagan that morning. Pagan also showed Perez the texts.

      While Pagan was speaking to Perez, she received a text from Miller stating

he knew she had called the police. Pagan showed the text to Perez. "Perez

instructed Pagan to go into her apartment and to retrieve a copy of the Order of

Protection so that he could see it." Pagan protested, "expressing to Perez her

fear that Miller was hiding inside." Perez directed Pagan to retrieve the order

from inside her residence while he remained in the police car. Pagan retrieved

the order without incident.

      Perez then told Pagan "he also needed to see her identification, and

instructed her to go back into the apartment again to retrieve it." Pagan again

protested because of her fear that Miller was hiding inside or on the building's


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roof.    Ignoring her protests, Perez "again ordered Pagan to retrieve her

identification, [while] he remained in his police car." Pagan reentered the

building, where she was confronted by Miller on the second floor. "Miller

violently assaulted Pagan, ultimately throwing her down a flight of stairs."

Despite Pagan's screams, Perez remained in his police car. Olivares warned

Perez but ran into the building to help Pagan after "[s]eeing that Perez was not

leaving the police car to help" Pagan. Miller assaulted Olivares, kicking her

down the stairs. Pagan and Olivares each allege that they suffered physical

injury and emotional distress as a result of the incident.

        Miller fled the scene and was not apprehended until several weeks later.

Miller subsequently pled guilty to assaulting Pagan and was sentenced to a

prison term.

        The complaint sought relief under: 18 U.S.C. § 1983 (count one); the New

Jersey Civil Rights Act (NJCRA),  N.J.S.A. 10:6-1 to -2, for violation of

substantive due process under a created-danger theory (count two); and the New

Jersey Tort Claims Act (TCA),  N.J.S.A. 59:1-1 to 12-3, for intentional infliction

of emotional distress (count three), negligent infliction of emotional distress

(count four), and negligence (count five).




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      On February 27, 2019, defendants removed the case to federal court

pursuant to 28 U.S.C. § 1441.         Plaintiffs subsequently learned that the

responding police officer was Eduardo Rivera, not Perez, and filed an amended

complaint in federal court naming Rivera as a defendant in place of Perez.

Rivera was served with process on August 2, 2019.

      Rivera moved to dismiss the amended complaint for failure to state a claim

upon which relief could be granted under a "state-created danger" theory and for

failure to provide the pre-suit notice of tort claim required by the TCA. In

response to the motion, on November 13, 2019, plaintiffs served a notice of tort

claim naming Rivera and three days later moved for leave to file a late tort claim

notice in Superior Court. Plaintiffs asserted they confused Rivera with Perez,

who had subsequently assisted in Miller's arrest. Although the motion was filed

beyond the one-year limit imposed by  N.J.S.A. 59:8-9, plaintiffs claimed their

motion was timely due to the tolling effect of the discovery rule . They also

contended that there was no prejudice to defendants because the police

department had been put on notice of the claims and the department was in the

best position to know that plaintiffs had misidentified the officer.

      In their opposition, defendants argued that the Superior Court lacked

jurisdiction due to the removal of the case to federal court and that the court


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should have denied the motion pursuant to Rule 4:5-1(b), Rule 4:30A, and

principles of comity. Both parties requested oral argument.

      On February 14, 2020, the Superior Court judge granted the motion

without oral argument. The judge found that "[t]he name of the officer involved

is more of a clerical error than anything that is material or that creates prejudice

especially in light of the [parallel] action in federal court." The judge did not

address defendants' opposing arguments in her decision even though she

acknowledged the parallel action in federal court.

      The federal judge denied both aspects of Rivera's motion to dismiss.

Pertinent to this appeal, the federal judge explained that the order granting leave

to file the late tort claim notice was dispositive because the decision was made

by a "judge of the Superior Court" in accordance with  N.J.S.A. 59:8-9. This

appeal followed.

      Defendant raises the following points for our consideration:

            I. THE LAW DIVISION ABUSED ITS DISCRETION
            BY GRANTING MOVANTS' MOTION TO FILE A
            LATE NOTICE OF CLAIM AGAINST OFFICER
            RIVERA DUE TO THE LACK OF EVIDENCE OF
            EXTRAORDINARY       CIRCUMSTANCES      TO
            EXCUSE THE LATE NOTICE.

            II. THE DISCOVERY RULE DOES NOT TOLL THE
            ACCRUAL OF MOVANTS' STATE LAW CLAIMS
            OR SAVE THEM FROM DISMISSAL DUE TO

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            THEIR FAILURE TO FILE A TORT CLAIMS
            NOTICE LESS THAN [NINETY] DAYS AFTER THE
            ALLEGED DISCOVERY.

            III. APART FROM A LACK OF ANY
            EXTRAORDINARY            CIRCUMSTANCES
            DEMONSTRATED BY MOVANTS, SUBSTANTIAL
            PREJUDICE EXISTS TO PRECLUDE GRANTING
            MOVANTS' MOTION TO FILE A LATE NOTICE OF
            CLAIM.

            IV. THE SUPERIOR COURT WAS DIVESTED OF
            JURISDICTION OVER MOVANTS' STATE LAW
            CLAIMS AND SHOULD HAVE ABSTAINED FROM
            DECIDING ANY ISSUE THAT WOULD IMPACT
            UPON THE VALIDITY OF MOVANTS' STATE
            LAW CLAIMS OVER WHICH THE FEDERAL
            COURT      HAS    SUPPLEMENTAL    AND
            CONCURRENT JURISDICTION.

      We begin our analysis by noting the court erred by deciding the motion

without hearing oral argument.         Plaintiffs and defendants requested oral

argument. Because this was not a routine discovery motion, each party had the

right to oral argument. R. 1:6-2(d); see Pressler & Verniero, Current N.J. Court

Rules, cmt. 5 on R. 1:6-2(d) (2021).

      Second, the judge did not make findings of fact or provide conclusions of

law regarding whether plaintiffs met their burden of demonstrating "sufficient

reasons constituting extraordinary circumstances for [their] failure to file [ a




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timely] notice of claim" under  N.J.S.A. 59:8-9. This clearly violated Rule 1:7-

4(a).

        More fundamentally, the Superior Court lacked subject matter jurisdiction

over the motion because the case had been removed to federal court. Upon

notice of the removal of the case to federal court, "the State court shall proceed

no further unless and until the case is remanded." 28 U.S.C. § 1446(d). See

also Jatczyszyn v. Marcal Paper Mills, Inc.,  422 N.J. Super. 123, 134 (App. Div.

2011) (same). Here, the federal court exercised subject matter jurisdiction over

plaintiffs' federal claims pursuant to 28 U.S.C. § 1331 and supplemental

jurisdiction over pendent state law claims pursuant to 28 U.S.C. § 1367(a).

        Put simply, the Superior Court lacked subject matter jurisdiction over the

motion because the case was removed to federal court and remained there. "The

absence of subject matter jurisdiction . . . cannot be waived; it may be asserted

at any other time, even on appeal." Triffin v. Se. Pa. Transp. Auth.,  462 N.J.

Super. 172, 178 (App. Div. 2020). See also Macysyn v. Hensler,  329 N.J. Super.
 476, 481 (App. Div. 2000) (noting that lack of subject matter jurisdiction is not

waived even if not raised in the trial court); Pressler & Verniero, Current N.J.

Court Rules, cmt. 2.1 on R. 4:6-2 (2021) (same).




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      Moreover, "a court cannot hear a case as to which it lacks subject matter

jurisdiction even though all parties thereto desire an adjudication on the merits."

Murray v. Comcast Corp.,  457 N.J. Super. 464, 470 (App. Div. 2019) (quoting

Peper v. Princeton Univ. Bd. of Trs.,  77 N.J. 55, 65 (1978)). "Whether presiding

over a case or deciding an appeal, judges have an independent, non-delegable

duty to raise and determine whether the court has subject matter jurisdiction

over the case whenever there is a reasonable basis to do so." Ibid. "Whenever

it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the matter except as

provided by [Rule] 1:13-4." R. 4:6-7.

      In addition, the motion was filed under a different docket number—not

the same docket number of the complaint originally filed in the Superior Court.

As such, the first-filed rule applies because the district court obtained possession

of the controversy before the motion was filed, Riggs v. Johnson Cty.,  73 U.S. 166, 196 (1867), and is "capable of affording adequate relief and doing complete

justice," Sensient Colors, Inc. v. Allstate Ins. Co.,  193 N.J. 373, 387 (2008)

(quoting O'Loughlin v. O'Loughlin,  6 N.J. 170, 179 (1951)). See also Yancoskie

v. Del. River Port Auth.,  78 N.J. 321, 324 (1978) (stating that the "proper course

under comity principles is not to exercise jurisdiction but to adhere to the general


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rule that the court which first acquires jurisdiction has precedence in the absence

of special equities"). No such special equities are present here.

      Plaintiffs contend that only a judge of the Superior Court can grant leave

to file a late notice of tort claim. They rely on  N.J.S.A. 59:8-9, which states that

a claimant "may, in the discretion of a judge of the Superior Court, be permitted

to file" a late notice of tort claim. We disagree. Federal courts routinely decide

motions for leave to file a late notice of claim under the TCA. See, e.g., Rolax

v. Whitman,  175 F. Supp. 2d 720, 731 (D.N.J. 2001), aff'd, 53 F. App'x 635 (3d

Cir. 2002); Forcella v. City of Ocean City,  70 F. Supp. 2d 512, 521 (D.N.J.

1999).

      Because the Superior Court lacked subject matter jurisdiction and should

not have decided the motion under principles of comity, the order granting the

motion must be vacated. Consequently, we do not reach the issues raised by

defendants in Points I through III.

      The order granting leave to file a late notice of tort claim is vacated. We

do not retain jurisdiction.




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