MARCO ROVELO v. TOWNSHIP OF NORTH BERGEN

NOT FOR PUBLICATION WITHOUT THE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-3393-19

MARCO ROVELO,

          Plaintiff-Appellant,

v.

TOWNSHIP OF NORTH BERGEN
and ROBERT DOWD,

     Defendants-Respondents.
_____________________________

                   Argued July 13, 2021 – Decided August 3, 2021

                   Before Judges Hoffman and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. L-3562-19.

                   Patrick P. Toscano, Jr. argued the cause for appellant
                   (The Toscano Law Firm, attorneys; Patrick P. Toscano,
                   Jr., on the briefs).

                   Drew D. Krause argued the cause for respondent
                   Township of North Bergen (Chasan Lamparello Mallon
                   & Cappuzzo, PC, attorneys; Drew D. Krause, of
                   counsel and on the brief).
            Michele L. DeLuca argued the cause for respondent
            Robert Dowd (Potters & Della Pietra, LLP, attorneys;
            Gary Potters and Michele L. DeLuca, on the brief).

PER CURIAM

      Plaintiff Marco Rovelo, a lieutenant with the North Bergen Police

Department (NBPD), appeals from the Law Division order dismissing plaintiff's

complaint against defendants Township of North Bergen (North Bergen) and

NBPD Police Chief Robert Dowd for failure to state a claim, pursuant to Rule

4:6-2(e). We reverse and remand.

                                       I.

      Plaintiff claims defendants violated his constitutional and civil rights by

failing to promote him to the rank of captain. The NBPD hired plaintiff in 2000,

after the NAACP sued North Bergen for failing to hire minority police officers.

In May 2016, plaintiff, a lieutenant at the time, took the New Jersey Civil

Service promotional examination.        Plaintiff claims his results on the

examination earned him the top spot on the NBPD’s promotional list.

Defendants dispute this claim, asserting plaintiff was always ranked as second

in line for promotion.

      In February 2018, plaintiff's handling of an attempted murder

investigation led to an Internal Affairs investigation into his conduct. After


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finding plaintiff committed violations of NBPD guidelines and the New Jersey

Civil Service Rules and Regulations, Internal Affairs brought seven

administrative charges against plaintiff.

      To resolve these disciplinary issues, plaintiff entered into a settlement

agreement, in lieu of a departmental hearing, the terms of which were

memorialized in a Release and Settlement Agreement (the Settlement

Agreement) on August 22, 2018. As part of the Settlement Agreement, plaintiff

acknowledged that he was guilty of the charges set forth in the Final Notice of

Disciplinary Action, voluntarily relinquished his right to a departmental hearing,

and received a fifteen-day suspension.        The Settlement Agreement also

contained a "complete release" whereby plaintiff gave up any and all claims and

rights that he "has or may have" against North Bergen, or any of its "officials,

officers, representatives or employees."

      After executing the Settlement Agreement, plaintiff expected to receive a

promotion to the rank of captain. He believed there was a captain position

vacant, and he was first in line for promotion. Defendants disagree and contend

that no vacant captain position existed at the time. This dispute arose because a

captain in the NBPD faced termination due to an ongoing disciplinary action,

which was delayed due to a lengthy discovery process and the captain's change


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in counsel. Ultimately, the charges against the captain were not sustained and

the captain was not terminated.       Plaintiff alleges Chief Dowd knowingly

manipulated the process to enable the captain, allegedly a close friend of Chief

Dowd, to retire instead of being terminated.        By the time of the captain's

retirement, plaintiff's promotional eligibility had expired.

      After his eligibility expired, plaintiff voluntarily opted not to take the next

promotional examination. Plaintiff claims shortly after his eligibility period

expired, Chief Dowd made it known that he planned on promoting four

lieutenants and adding new positions. Furthermore, plaintiff alleges that Chief

Dowd "made it widely known within the NBPD" that he disliked plaintiff.

Plaintiff also asserts Chief Dowd runs the NBPD in a "quasi-tyrannical fashion"

and abuses the Internal Affairs and promotional processes to render preferential

treatment to select officers.    Moreover, plaintiff claims North Bergen has

permitted and promoted Chief Dowd's illegal activities for years, while

"allowing vacancies to illogically remain unfilled."

      On June 7, 2019, plaintiff filed a complaint against defendants, asserting

his civil rights were violated when he was not promoted to captain. After

defendants moved to dismiss the complaint for failure to state a claim, pursuant




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to Rule 4:6-2(e), plaintiff voluntarily dismissed his complaint on September 13,

2019.

        On September 17, 2019, plaintiff filed a new complaint against

defendants, alleging violations under the New Jersey Civil Rights Act (NJCRA)

and the New Jersey constitution. Again, defendants moved to dismiss the

complaint for failure to state a claim, pursuant to Rule 4:6-2(e).

        In April 2020, the motion judge granted defendant's motion, concluding

that plaintiff "failed to state a claim for which relief can be granted."

Additionally, the court dismissed plaintiff's complaint with prejudice,

determining that plaintiff's complaint "cannot be remedied by amendment."

        On appeal, plaintiff argues the trial court improperly dismissed his

complaint with prejudice without allowing him the opportunity to cure any

deficiencies through amendment. We agree.

                                      II.

        Rule 4:6-2(e) provides that a complaint may be dismissed for "failure to

state a claim upon which relief can be granted[.]" This rule tests "the legal

sufficiency of the facts alleged on the face of the complaint." Printing Mart-

Morristown v. Sharp Elec. Corp.,  116 N.J. 739, 746 (1989). On a motion to

dismiss, a plaintiff need not prove the case, but need only "'make allegations


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which, if proven, would constitute a valid cause of action.'" Kieffer v. High

Point Ins. Co.,  422 N.J. Super. 38, 43 (App. Div. 2011) (quoting Leon v. Rite

Aid Corp.,  340 N.J. Super. 462, 472 (App. Div. 2001)). On such a motion,

plaintiff is entitled to "every reasonable inference of fact." Printing Mart,  116 N.J. at 746 (citing Indep. Dairy Workers Union v. Milk Drivers Local 680,  23 N.J. 85, 89 (1956)).

      A reviewing 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. Park,  43 N.J.

Super. 244, 252 (App. Div. 1957)). This review should be "at once painstaking

and undertaken with a generous and hospitable approach." Ibid. A motion to

dismiss should only be granted in "'the rarest of instances.'" Kieffer,  422 N.J.

Super. at 43 (quoting Printing Mart,  116 N.J. at 771-72). Only where "'even a

generous reading of the allegations does not reveal a legal basis for recovery' "

should the motion be granted. Ibid. (quoting Edwards v. Prudential Prop. & Cas.

Co.,  357 N.J. Super. 196, 202 (App. Div. 2003)).

      Plaintiff’s complaint alleged civil rights and constitutional violations. To

survive a motion to dismiss, plaintiff’s complaint must contain allegations


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which, if proven, would constitute a valid civil rights or constitutional cause of

action. See Kieffer,  422 N.J. Super. at 43.

      As the motion judge recognized, a plaintiff alleging NJCRA violations

"must prove that (1) 'the Constitution or laws of this State' conferred on them a

substantive right; (2) the [public official] deprived them of that right; and (3)

the [public official] was acting 'under the color of the law' when he did so."

Tumpson v. Farina,  218 N.J. 450, 473 (2014).

      Here, the motion court determined that plaintiff failed to state a claim

upon which relief can be granted; in addition, the court dismissed plaintiff's

complaint with prejudice, concluding the complaint "cannot be remedied by

amendment." While we find no basis to disturb the court's determination that

plaintiff's complaint failed to state a claim upon which relief can be granted, we

disagree with the decision to dismiss with prejudice. Based upon our review,

the motion court did not "search the complaint in depth and with liberality to

ascertain whether the fundament of a cause of action may be gleaned" from the

factual allegations in plaintiff's complaint. Printing Mart,  116 N.J. at 746.

      As previously noted, motions to dismiss "should be granted only in rare

instances and ordinarily without prejudice." Smith v. SBC Communications,

Inc.,  178 N.J. 265, 282 (2004). This case does not present the rare instance


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warranting a dismissal with prejudice. The motion court's opinion failed to

convince us that plaintiff's complaint cannot potentially be remedied by

amendment.    Plaintiff should have the opportunity to attempt to cure the

deficiencies in his complaint. Rather than dismissing plaintiff's complaint with

prejudice, the court should have granted plaintiff leave to amend his pleading.

Accordingly, we vacate the dismissal of plaintiff's complaint, and remand to

permit plaintiff the opportunity to amend his pleading.

      Any arguments not specifically addressed lack sufficient merit to warrant

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

      Reversed and remanded. We do not retain jurisdiction.




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