Michaels v. State of N.J.
| Decision Date | 08 November 1996 |
| Docket Number | Civil Action No. 96-3557 (MTB). |
| Parties | Margaret Kelly MICHAELS, Plaintiff, v. STATE OF NEW JERSEY, Attorney General's Office, County of Essex, Essex County Prosecutor's Office, George L. Schneider, Esq., Herbert Tate, Esq., John Mastroangelo, John Noonan, Glenn Goldberg, Esq., Sarah Sencer-McArdle, Eileen C. Treacy, M.A., Essex County Police Department, Newark Police Department, Division of Youth and Family Services, Louis Fonnelaras, Susan Esquillan, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Louis J. Santore, Santore & Kenny, Secaucus, NJ, for Margaret Kelly Michaels.
Paul E. Stevenson, Division of Law, Newark, NJ, for State of New Jersey, Attorney General's Office.
Michael R. Griffinger, Crummy Deldeo Dolan Griffinger & Vecchione, Newark, NJ, for County of Essex.
David N. Samson, Wolff & Samson, P.C., Roseland, NJ, for Essex County Prosecutor, George L. Schneider, Herbert Tate, Sarah Spencer-McArdle, Div. of Youth and Family Services, Louis Fonnelaras.
Gage Andretta, Wolff & Samson, PC, Roseland, NJ, for Glenn Goldberg.
John R. Gonzo, Harwood Lloyd, Hackensack, NJ, for Eileen C. Treacy, M.A.
Steven C. Mannion, Michelle Hollar-Gregory, Corporation Counsel, Newark, NJ, for Newark Police Department.
The City of Newark, on behalf of defendant Newark Police Department ("Newark"),1 moves to remand this action to state court or, alternatively, to dismiss the complaint of plaintiff Margaret Kelly Michaels as time-barred under the applicable statutes of limitations, for failure to comply with certain provisions of the New Jersey Tort Claims Act, and for failure to state a claim upon which relief can be granted. For the reasons that follow, Newark's motion will be granted in part and denied in part, and the complaint will be dismissed as to Newark.
This litigation arises out of the alleged unconstitutional prosecution and conviction of a nursery school teacher for bizarre acts of sexual abuse against many of the children for whom she was responsible.2 In September 1984, the Wee Care Nursery School ("Wee Care") hired Michaels ("Michaels" or "plaintiff"), then a twenty-two year old college student, as a teachers' aide for preschoolers. Approximately one month later, Michaels became a teacher at Wee Care, a position she held until April 26, 1985.
Located in Maplewood, New Jersey, Wee Care served approximately fifty families, with enrollment of about sixty children, ages three to five. During the eight-month period that Michaels worked at Wee Care, parents began to observe behavioral changes in their children. Michaels, 136 N.J. at 304, 642 A.2d 1372. One such parent, after hearing from her son about certain incidents regarding Michaels, alerted the New Jersey Division of Youth and Family Services ("DYFS"). Id. at 304-05, 642 A.2d 1372. Having been apprised by DYFS on May 1, 1985 of the information the mother had relayed, the Essex County Prosecutor's Office commenced an investigation of possible sexual abuse at Wee Care. Id. at 305, 642 A.2d 1372.
As a result of its investigation, the Essex County Prosecutor's Office arrested Michaels on June 12, 1985, on charges of what plaintiff describes as "child molestation." Complaint, Count One at ¶ 22. After a trial in the Superior Court of New Jersey, which commenced on June 22, 1987 and concluded on April 15, 1988, a jury convicted Michaels of 115 counts of aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats. Michaels, 136 N.J. at 305-06, 642 A.2d 1372. On August 2, 1988, the trial court sentenced Michaels to an aggregate term of forty-seven years imprisonment with fourteen years of parole eligibility. Id. at 306, 642 A.2d 1372.
On March 26, 1993, the Appellate Division of the Superior Court reversed the conviction and remanded the criminal proceedings for a new trial, concluding that the prosecution's interviews and interrogations of the allegedly abused children were highly improper. Michaels, 264 N.J.Super. at 629-32, 625 A.2d 489. The Appellate Division ordered that, in the event the prosecution decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of those children should be excluded from evidence as untrustworthy. Id. at 631-32, 625 A.2d 489.
On June 23, 1994, after granting certification on the limited issue of the pretrial hearing, the Supreme Court of New Jersey affirmed the Appellate Division's reversal and remand, and required the prosecution, in the event of a retrial, to prove the reliability of the children's statements by "clear and convincing" evidence:
[W]e find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable. We therefore hold that in the event the State seeks to re-prosecute this defendant, a pretrial hearing must be held in which the State must prove by clear and convincing evidence that the statements and testimony elicited by the improper interview techniques nonetheless retains a sufficient degree of reliability to warrant admission at trial. Given the egregious prosecutorial abuses evidenced in this record, the challenge that the State faces is formidable. If the statements and proffered testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and probative worth of such testimony in light of all the surrounding circumstances.
Michaels, 136 N.J. at 324, 642 A.2d 1372.
The decision was subsequently made not to retry Michaels and, on December 1, 1994, all criminal charges against her were formally dismissed. Complaint, Count One at ¶ 25.
On February 27, 1995, Michaels filed a notice of tort claim with each of the named defendants in this case pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 et seq. Certification of Steven C. Mannion ("Mannion Cere."), ¶ 5 and Exhibit B. Michaels filed the instant complaint in the Superior Court on June 13, 1996, and served defendants on June 25, 1996. On July 25, 1996, defendants the Essex County Prosecutor's Office, Glenn Goldberg, Herbert Tate, George L. Schneider, Sarah Sencer-McArdle, and John Mastroangelo, apparently with the "consent" of all the other defendants with the exception of Newark, removed the action to this court.
Newark now moves to remand because it did not join in the removal petition as required by 28 U.S.C. § 1446 and because the allegedly consenting defendants did not properly join in the removal by way of a writing. Alternatively, Newark moves to dismiss the complaint as time-barred pursuant to the applicable statutes of limitations, for failure to comply with certain mandatory provisions of the New Jersey Tort Claims Act, and for failure to state a claim upon which relief can be granted.
The federal removal statute provides that a "defendant or defendants" desiring to remove a state court action to federal court shall file in the federal district court a notice of removal within thirty days after receipt by the removing defendant of the initial pleading or service of summons. 28 U.S.C. § 1446(a) and (b). Notwithstanding the ambiguity of the requirements a "defendant or defendants" must satisfy under this statute, it is a well-settled rule of law — commonly known as the "rule of unanimity" — that all defendants must join in or consent to the removal petition. Gableman v. Peoria, Decatur and Evansville Railway Co., 179 U.S. 335, 337, 21 S.Ct. 171, 172, 45 L.Ed. 220 (1900); Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.1995) (citations omitted); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985) (citing Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir.1982)); Ogletree v. Barnes, 851 F.Supp. 184, 186 (E.D.Pa. 1994) (); Stangard Dickerson Corp. v. United Electrical, Radio & Machine Workers of America, Local 1218, 33 F.Supp. 449, 451 (D.N.J.1940) ().
The two principal issues raised in Newark's motion to remand are: (1) whether an exception to the "rule of unanimity" exists that would excuse a defendant's failure to join in or consent to the removal petition; and (2) whether the removing defendants in a multiple-defendant case must memorialize or evidence their joinder or consent in writing.
The Court of Appeals for the Third Circuit has held that the "unanimity rule" may be disregarded where: (1) a non-joining defendant is an unknown or nominal party; (2) a defendant has been fraudulently joined; or (3) a non-resident defendant has not been served at the time the removing defendants filed their petition. Balazik, 44 F.3d at 213, n. 4 (citations omitted).
At least as currently pled, Newark is a nominal party to this lawsuit. The claims asserted, and the facts alleged, in the complaint are limited to the investigation and prosecution of Michaels by the Essex County Prosecutor's Office for her alleged involvement in the sexual abuse of children while working at Wee Care. The complaint contains no allegations, nor can it reasonably be inferred, that this investigation and prosecution was conducted by or had any connection with Newark. Indeed, not a single individual defendant named in the complaint — not even one of the one-hundred fictitious defendants — is alleged to have had any such connection.
The only allegation in the entire complaint having anything to do with Newark is contained in Count Three, which provides,...
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