Falat v. Cnty. of Hunterdon

• Decision Date: 25 July 2018
• Docket Number: DOCKET NO. A-2479-15T1
• Citation: Falat v. Cnty. of Hunterdon, DOCKET NO. A-2479-15T1 (N.J. Super. App. Div. Jul 25, 2018)
• Parties: JOHN FALAT, JR., MICHAEL RUSSO and DEBORAH TROUT, Plaintiffs-Appellants, v. THE COUNTY OF HUNTERDON, THE OFFICE OF THE HUNTERDON COUNTY PROSECUTOR; GEORGE MELICK, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; WILLIAM MENNEN, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; RONALD SWOREN, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; MATTHEW HOLT, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; ERIK PETERSON, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; ROBERT WALTON, individually and in his representative capacity as a Hunterdon County Freeholder and agent of the County of Hunterdon; GAETANO DESAPIO, individually and in his representative capacity as a Hunterdon County Counsel and agent of the County of Hunterdon; KENNETH ROWE, individually and in his representative capacity as agent of the Office of the Hunterdon County Prosecutor; EDMUND DEFILLIPIS, individually and in his representative capacity as agent of the Office of Hunterdon County Prosecutor; CYNTHIA YARD, individually and in her representative capacity as Hunterdon County Administrator and agent of the County of Hunterdon, Defendants-Respondents, and J. PATRICK BARNES, individually and in his representative capacity as the Hunterdon County Prosecutor; BENNETT BARLYN, individually and in his representative capacity as agent of the Office of the Hunterdon County Prosecutor; WILLIAM MCGOVERN, individually and in his representative capacity as agent of the Office of the Hunterdon County Prosecutor; and DONNA SIMON, in her individual and representative capacities, Defendants.
• Court: New Jersey Superior Court — Appellate Division

JOHN FALAT, JR., MICHAEL RUSSO and DEBORAH TROUT, Plaintiffs-Appellants, v. THE COUNTY OF HUNTERDON, THE OFFICE OF THE HUNTERDON COUNTY PROSECUTOR;GEORGE MELICK, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;WILLIAM MENNEN, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;RONALD SWOREN, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;MATTHEW HOLT, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;ERIK PETERSON, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;ROBERT WALTON, individually and in his representative capacityas a Hunterdon County Freeholder and agent of the County of Hunterdon;GAETANO DESAPIO, individually andin his representative capacityas a Hunterdon County Counsel and agent of the County of Hunterdon;KENNETH ROWE, individually andin his representative capacityas agent of the Office of the Hunterdon County Prosecutor;EDMUND DEFILLIPIS, individually and in his representative capacityas agent of the Office of Hunterdon County Prosecutor;CYNTHIA YARD, individually and in her representative capacityas Hunterdon County Administrator and agent ofthe County of Hunterdon, Defendants-Respondents,andJ. PATRICK BARNES, individually andin his representative capacity as the Hunterdon County Prosecutor;BENNETT BARLYN, individually and inhis representative capacity as agent of the Office ofthe Hunterdon County Prosecutor; WILLIAM MCGOVERN,individually and in his representative capacityas agent of the Office of the Hunterdon County Prosecutor; andDONNA SIMON, in her individual and representative capacities, Defendants.

DOCKET NO. A-2479-15T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued May 21, 2018

July 25, 2018

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.

Before Judges Messano, Accurso, and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0188-15.

Nina Rossi argued the cause for appellants (Law Offices of William J. Courtney, LLC,attorneys; William J. Courtney, of counsel; Nina Rossi, on the briefs).

Thomas B. Hanrahan argued the cause for respondents County of Hunterdon, George Melick, William Mennen, Ronald Sworen, Matthew Holt, Erik Peterson, Robert Walton and Cynthia Yard (Hanrahan Pack, LLC, attorneys; Thomas B. Hanrahan, of counsel; Nicholas P. Milewski, on the brief).

Walter F. Kawalec, III, argued the cause for respondent Gaetano DeSapio, Esq. (Marshall Dennehey Warner Coleman & Goggin, attorneys; Howard B. Mankoff and Walter F. Kawalec, III, on the brief).

Eric L. Harrison argued the cause for respondents Kenneth Rowe and Edmund DeFillipis (Methfessel & Werbel, attorneys; Eric L. Harrison, of counsel and on the brief; Jennifer M. Herrmann, on the brief).

PER CURIAM

In November 2007, plaintiff Deborah Trout was elected Sheriff of Hunterdon County (the County), and she served in that office from January 1, 2008, until December 31, 2010. At the beginning of her term, Trout appointed plaintiff Michael Russo as Undersheriff and plaintiff John Falat, Jr., as an investigator in the Hunterdon County Sheriff's Office (HCSO). The HCSO previously employed both Trout and Russo, and both had previously filed andsettled litigation against the County.¹

In 2010, a Hunterdon County grand jury indicted plaintiffs for official misconduct and other crimes and issued a presentment regarding operations at the HCSO. By the time the indictments and presentment were released publicly in May 2010, the Office of the Attorney General had superseded the Hunterdon County Prosecutor's Office (HCPO), and a deputy attorney general (DAG) succeeded County Prosecutor J. Patrick Barnes and was serving as acting prosecutor. In August, a different DAG who was handling the prosecution of the indictments moved to dismiss them without prejudice.

In her August 23, 2010 letter to the criminal trial judge, the DAG stated the State's motion was "based upon legal and factual deficiencies in the indictments," and "errors in the presentation of these matters to the grand jury [that] have resulted in defective indictments." The DAG also stated "incorrect instructions . . . tainted the entire deliberative process." Fairly read, the letter questioned both the sufficiency of the facts adduced before the grand jury and the legal theory supportingthe charged crimes. The judge entered an order dismissing the indictments without prejudice the same day.

On August 2, 2012, plaintiffs filed a complaint naming the County and a number of public officials as defendants, including freeholders George Melick, William Mennen, Ronald Sworen, Matthew Holt, Erik Peterson, Robert Walton and County Administrator Cynthia Yard (collectively, the County Defendants), County Counsel Gaetano DeSapio, and Kenneth Rowe and Edmund DeFillipis, investigators with the HCPO (collectively, the HCPO Defendants).² The complaint was removed to federal court, where Judge Stanley R. Chesler granted defendants' motions to dismiss.

In his written opinion, Judge Chesler dismissed with prejudice several of the complaint's twenty counts. Judge Chesler dismissed the remaining counts without prejudice, noting the pleading "largely fail[ed] to connect . . . factual allegations to the specific counts . . . ." He permitted plaintiffs to file an amended complaint "that clearly spells out which individual plaintiffs are making what legal claims against whom and set forth specific factual allegations to support each of those claims."

Plaintiffs filed an amended complaint in federal court, and defendants again moved to dismiss. Judge Faith S. Hochberg'sNovember 21, 2014 order dismissed plaintiffs' "federal claims" with prejudice and remanded "all remaining state law causes of action." In her written opinion that accompanied the order, Judge Hochberg noted that despite Judge Chesler's earlier order, "[p]laintiffs persist[ed] in reasserting some of the[] already-dismissed claims." Judge Hochberg refused to "revive these causes of action," and summarized what remained extant for her consideration:

[T]he remaining counts include: (a) free speech claims under the First Amendment; (b) a conspiracy claim asserted pursuant to 42 U.S.C. § 1985(3); (c) a malicious prosecution claim under the Fourth Amendment against the individual Defendants; and (d) state law claims under the New Jersey Constitution, a state law malicious prosecution claim, and a claim under [the New Jersey Law Against Discrimination (NJLAD)], hostile work environment, retaliation, and constructive discharge.

Judge Hochberg dismissed plaintiffs' First Amendment claims as untimely, specifically rejecting their assertion that the "continuing violation[s]" doctrine equitably tolled the two-year statute of limitations, and concluded any specific allegations within the statute of limitations were insufficiently pled or otherwise insufficient as a matter of law. The judge dismissed plaintiffs' 42 U.S.C. § 1985 conspiracy claims, finding there were no allegations of "class-based, invidiously discriminatoryanimus," quoting Faylor v. Szupper, 411 F. App'x 525, 530 (3d Cir. 2011), or "an illegal agreement" among defendants. Turning to plaintiffs' malicious prosecution claim, Judge Hochberg determined the complaint failed to allege "a lack of probable cause sufficient to overcome the effect of the . . . indictment . . . ," or that defendants "initiated the criminal proceeding." The judge declined to exercise supplemental jurisdiction over plaintiffs' state law claims and remanded them to the Law Division.

Defendants then renewed their motions to dismiss the amended complaint pursuant to Rule 4:6-2(e). In addition to filing opposition, plaintiffs cross-moved seeking leave to file a proposed 236-page second amended complaint (second amended complaint). The second amended complaint expanded some factual allegations, primarily by repeating the same facts in each count of the complaint, and abandoned counts in the prior complaint alleging federal claims and Trout's claim for "constructive discharge." After oral arguments, the entry of interim orders, a motion for reconsideration and further arguments, the Law Division judge entered a series of orders on January 7, 2016 that granted defendants' motions to dismiss the complaint with prejudice anddenied plaintiffs' motion for reconsideration and cross-motion to file the second amended complaint. This appeal followed.³

I.

A.

"Our review of the trial court's dismissal order[s] in this context is de novo." Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).⁴ Motions to dismiss for failure to state a claim "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-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)). Although we must review plaintiffs' 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," ibid. (quoting Printing Mart, 116 N.J. at 746), "[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one." Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011). "[T]he 'inquiry is limited to examining the legal sufficiency of the facts alleged on the face of thecomplaint.'" Nostrame, 213 N.J. at 127 (quoting Printing Mart, 116 N.J. at 746).

"A motion to dismiss pursuant to Rule 4:6-2(e)...