Opinion
Civil Action No. 98-1475 (AMW).
November 23, 1998
OPINION
Before the Court is defendant's motion for summary judgment. Plaintiff filed opposition, and the Court did not hear oral argument, choosing instead to decide the motion on the papers pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, defendant's motion for summary judgment is granted.
The parties have submitted to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c) .
FACTS and PROCEDURAL HISTORY
Plaintiff is the sister of Robert Egan, proprietor of Cubby's Restaurant in Hackensack, New Jersey. Defendant is an officer with the Hackensack Police Department. On March 30, 1995, defendant arrived at Cubby's pursuant to a call requesting a police officer to respond to the restaurant. During an incident that then ensued, Egan was arrested and jailed at the Bergen County Jail. Shortly before midnight on March 30, 1995, plaintiff drove her automobile to the jail to pick up Egan as he was being released from custody.As the Court understands the complaint, shortly after midnight plaintiff's car passed defendant on Anderson Street as defendant and other police officers were investigating an unrelated burglary. Apparently, defendant was on the street within earshot of plaintiff's stationary car when Egan made a comment about the officers to his attorney, who was seated in the back seat of plaintiff's car. Shortly thereafter, defendant stopped plaintiff's car near the intersection of Elm and Lincoln Streets and issued to plaintiff a traffic summons for careless driving. Plaintiff alleges that later that day on March 31, 1995, defendant filed a false police report concerning Bergen's operation of her car early that morning. Plaintiff pled not guilty to the careless driving charge, and on December 11, 1997, the Waldwick Municipal Court Judge found plaintiff not guilty of the charged traffic offense.
In August 1996, Egan filed his own civil rights lawsuit against the City of Hackensack, city officials, and local police officers, including defendant herein, that is captioned Robert Egan, et al., v. City of Hackensack, et al., Civil Action No. 96-3825 (AMW). Egan asserted in his complaint that defendants in that lawsuit falsely arrested him and therefore violated his Constitutional rights. Plaintiffs in Egan sought leave of this Court on February 13, 1998, to file an amended complaint that would have included the factual allegations at issue in the instant matter. This Court denied the Egan plaintiffs' motion on March 23, 1998, and plaintiff herein filed suit separately on March 27, 1998. Significantly, paragraph 15 of plaintiff's First Cause of Action states that "defendant Gervasi subjected plaintiff Bergen to malicious use of process rendering him liable pursuant to 42 U.S.C. § 1983" (emphasis in original).
Before the Court is defendant's motion for summary judgment that seeks dismissal of plaintiff's lawsuit. In his moving papers, defendant asserts that the facts of plaintiff's case do not support a right of action for malicious use of process because plaintiff fails to show how she has suffered a "special grievance." Defendant urges, rather, that plaintiff can only make out a case for abuse of process, a cause of action that accrues at the time process is initiated. The statute of limitations for abuse of process, defendant argues, has expired because defendant allegedly violated plaintiff's constitutional rights on March 31, 1995, and needed to file suit by March 31, 1997. Plaintiff filed her lawsuit on March 27, 1998, and as such, defendant maintains, plaintiff's suit was not timely filed.
Although defendant moves for summary judgment, his papers read more like a motion to dismiss for failure to state a claim. Plaintiff recognizes this in her opposition papers when she states that defendant's motion is more akin to a Rule 12(b)(6) motion to dismiss because defendant attacks the sufficiency of the complaint. Also, plaintiff correctly notes that, because defendant has presented matters outside the pleadings, the proper motion is one for summary judgment. In any event, as explained below, the Court holds that plaintiff fails to satisfy the factual elements of the right of action that she alleges in the complaint.
In opposition, plaintiff relies upon a district court case and asserts that, because she faced the prospect of jail if she failed to appear in municipal court, she indeed suffered a special grievance. Plaintiff argues that she has therefore stated a valid civil rights claim under 42 U.S.C. § 1983.
DISCUSSION
Summary judgment is governed by the standard of Federal Rule of Civil Procedure 56(c), which states, in relevant part, that
[t]he judgment sough shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the lawsuit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, and regardless of who bears the burden of proof at trial, the movant bears the burden of showing that there are no genuine issues of material fact. See Countryside Oil Co. v. Travelers Ins. Co., 928 F. Supp. 474, 480 (D.N.J. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). When the non-moving party, such as plaintiff in the instant matter, bears the burden of proof at trial, the movant satisfies its summary judgment burden by establishing that the non-moving party has failed to adduce evidence necessary to show an essential element of the right of action that the non-movant would have to prove at trial.See Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once movant satisfies this burden, the non-moving party, in an effort to raise a genuine issue of material fact, may not rest on the mere allegations in its complaint, but must point to evidence that establishes specifically that there is a genuine issue suitable for trial. See Fed.R.Civ.P. 56(e). Put another way, if the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In the matter before this Court, there are no genuine issues of material fact and therefore summary judgment is appropriate.
Plaintiff alleges in her complaint that she seeks to enforce her First, Fourth, and Fourteenth Amendment rights under the United States Constitution. Specifically, she claims that "[d]efendant subjected plaintiff Bergen to malicious use of process rendering him liable pursuant to 42 U.S.C. § 1983." See Compl., First Cause of Action ¶ 15 (emphasis in original). A malicious use of process action seeks to make whole a litigant who has been subjected to the wrongful initiation of a civil suit. See W. Page Keeton et al., Prosser and Keeton on Torts § 120, at 889 (5th ed. 1984). As one court has explained, a litigant must show the following in order to succeed on a claim for malicious use of process: (1) suit was filed without probable cause, (2) plaintiff's adversary was motivated with malice, (3) the action terminated in plaintiff's favor, and (4) plaintiff suffered a special grievance. See SPK Catalogue Partnership v. Orion Pictures, 723 F. Supp. 1053, 1068 (D.N.J. 1989). Absent "special grievance," each element of the tort is reasonably self explanatory. "In order to meet the special grievance prong of the framework," however, "plaintiff must show that the malicious prosecution of the previous civil suit interfered with his personal liberty or property." Id.
Defendant asserts that plaintiff has not suffered a special grievance because she was not arrested at the scene of the traffic stop or for failure to appear at the municipal court trial, which she in fact attended. Resolution of the special-grievance issue is furthered by examining a New Jersey appellate division case that neither party cited in their submissions to the Court. Although New Jersey law does not necessarily govern disposition of this case, it is persuasive authority as the Third Circuit has not examined malicious use of process in a context similar to the matter before this Court.
In McArdle v. Tronetti , 961 F.2d 1083 (3d Cir. 1992), the Third Circuit affirmed that "a claim of malicious use of process may state a Section 1983 claim if it includes the elements of that common law tort as it has developed." Id . at 1088. The court recognized that the elements of the right of action are similar in most jurisdictions, but in that case examined a Pennsylvania statute that codified the tort of malicious use of process. See id . Under that statute, plaintiff need not show that he has suffered a special grievance. See id . (citing 42 Pa. Cons. Stat. Ann. § 8351; W. Page Keeton et al., Prosser and Keeton on Torts § 119, 120 (5th ed. 1984)). In contrast to the Pennsylvania statute, New Jersey courts do require a plaintiff to show he has suffered a special grievance. See Klesh v. Coddington , 295 N.J. Super. 1, 3-4 (App. Div. 1996).
In Klesh v. Coddington, the appellate division examined the limited issue of whether plaintiffs, who were charged with disorderly persons offenses, needed to allege a special grievance in their right of action for "malicious prosecution of a civil suit." Klesh, 295 N.J. Super. at 3. If the disorderly persons offense was a criminal offense, then a right of action would lie for malicious prosecution, and plaintiff would not need to show any special grievance. See id.; see also Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989) (setting forth elements of malicious prosecution, which do not include suffering any special grievance). Significantly, the court determined that "[d]isorderly persons offenses, like traffic offenses, are not criminal actions but are, rather, quasi-criminal." Id.
"Malicious prosecution of a civil suit" is simply another name for "malicious use of process." See W. Page Keeton et al., Prosser and Keeton on Torts § 120, at 889 (5th ed. 1984) (noting that the tort of malicious prosecution has been extended "into the field of the wrongful initiation of civil suits.").
In a quasi-criminal action, no bright-line test is available to determine whether there has or might be a violation of a person's liberty interests, which would thereby lend credence to the argument that the offense gives rise to a special grievance. See id. In order to obviate uncertainty in such quasi-criminal cases, the appellate division "concluded that the determinant of the special-grievance requirement is the `reality' of what happened in the underlying action rather than the `potentiality.'" Id. at 4. Therefore, the operative question is "`what happened to the defendant in the prior prosecution' of the quasi-criminal action." Id. (quoting Vickey v. Nessler, 230 N.J. Super. 141, 149 (App. Div. 1989)). In Vickey, the appellate division found that the special-grievance requirement applied but was not satisfied, because plaintiff therein was not arrested and was not deprived of his property.See Klesh, 295 N.J. Super. at 4 (citing Vickey, 230 N.J. Super. at 150). Describing the proceedings that led to the lawsuit in Vickey, the Klesh court stated, "[plaintiff] was served with a summons, appeared in municipal court, and the proceedings there were unexceptional." Klesh, 295 N.J. Super. at 4.
Under the appellate division's "reality" test, plaintiff in the matter before the Court fails to meet the special-grievance requirement. As inVickey, plaintiff herein appeared before the municipal court and answered the charges of careless driving that were filed against her. She contested the traffic summons and prevailed, the court finding insufficient evidence to support the careless driving charge and, therefore, entering a finding of not guilty. See Compl., First Cause of Action ¶ 13. Plaintiff was never arrested, jailed, or otherwise deprived of her liberty or property. As such, she has suffered no special grievance and thus cannot under any set of facts prevail at trial on her claim for malicious use of process.
Plaintiff counters the above by arguing that a federal court in the District of New Jersey has expressly rejected "the legal argument inVickey that the Constitution does not protect an individual from being maliciously haled into municipal court under color of law to answer a traffic complaint because any interference in the individual's constitutional rights is de minimus." Harmon v. Holmes, 712 F. Supp. 451, 453 (D.N.J. 1989). The Court recognizes that Harmon adopts the "potentiality" test that is expressly rejected by the New Jersey appellate division in Klesh v. Coddington. As noted, supra, Klesh adopted the "reality" test, instructing that courts should evaluate what actually happened to the plaintiff in the allegedly malicious prior proceeding rather than speculate about what might potentially occur.
This Court chooses the "reality" test espoused by the appellate division in Klesh and rejects the "potentiality" standard set forth by the district court in Harmon. First, courts have recognized that malicious use of process is not a favored cause of action because of the policy determination that people should not be discouraged from asserting their rights and seeking redress in the courts. See Penwag Property Co. v. Landau, 76 N.J. 595, 597-98 (1978). An honest litigant must be encouraged to seek justice and should not, in striving toward that end, fear an action filed against him in return for the initiation of the original proceeding. See W. Page Keeton et al., Prosser and Keeton on Torts § 120, at 889 (5th ed. 1984). Potential future liability might have a chilling effect on honest litigants, and this, some argue, necessitates the special-grievance requirement. Second, litigation must end somewhere; indeed, if one counter-action may be filed, so may another, and another. See id.
Finally, and most significantly, this Court opines that use of the "reality" test will foster certainty as to whether a litigant has a right of action founded on malicious use of process. If he has endured a quasi-criminal proceeding and escaped unscathed, he should not be free to file suit seeking redress, as he has no real damages. On the other hand, if he is eventually arrested and deprived of his liberty, and assuming he can establish the other three elements of the tort of malicious use of process, he can seek civil redress in the courts. This Court favors a bright-line test for determining whether the special-grievance prong of the malicious use of process analysis has been satisfied.
The Court is mindful that "[i]t would be improper to dismiss a claim which raises a cognizable cause of action where that claim is merely mislabeled in view of the command of [Rule] 8(f) that '[a]ll pleadings shall be so construed as to do substantial justice.'" See Voytko v. Ramada Inn, 445 F. Supp. 315, 325 (D.N.J. 1978). In Harmon v. Holmes, the court found that plaintiff could not maintain an action for malicious prosecution because a municipal court proceeding is not a criminal action, which is a necessary component of a prima facie case of malicious prosecution. See Harmon v. Holmes, 712 F. Supp. 451, 454 (D.N.J. 1989). The court opined, however, that plaintiff did state a right of action for abuse of process and therefore denied defendant's Rule 12(b)(6) motion to dismiss. This Court must also follow the dictates of Rule 8(f) and attempt to do substantial justice. To that end, the Court will treat plaintiff's complaint, which fails to meet the requirements of malicious use of process, as a complaint sounding in abuse of process.
Abuse of process has only two elements. First, defendant must have set in motion legal process for an improper ulterior purpose, and second, in causing process to issue, defendant must have committed a willful act that perverts the normal conduct of the proceeding in order to accomplish an improper purpose. See Harmon, 712 F. Supp. at 454 n. 6. The Court makes no legal analysis as to whether plaintiff has satisfied these elements of the abuse of process right of action. Rather, the Court determines that, even if plaintiff had an abuse of process claim, that action was untimely filed. As noted by the district court in Michaels v. State of New Jersey, the Third Circuit has explained that Section 1983 actions are governed by New Jersey's two-year statute of limitations for personal injury actions. See Michaels v. State of New Jersey, 955 F. Supp. 315, 322-23 (D.N.J. 1996) (citing Wilson v. Garcia, 471 U.S. 261, 280 (1985); Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)). Applying the foregoing to the facts of the matter before this Court, it is clear that plaintiff failed to assert her rights within the limitations period for an abuse of process right of action. Plaintiff alleged in the complaint that defendant issued a false police report on March 31, 1995. That report, coupled with the traffic summons issued earlier the same day, initiated the legal process that plaintiff alleges was abused by defendant. As such, plaintiff needed to file her lawsuit by March 31, 1997. She did not. Rather, plaintiff filed suit on March 27, 1998, and her action is therefore time barred.
Concluding, the Court determines that the material facts are not in dispute. Plaintiff was not arrested, suffered no deprivation of liberty, and did not forfeit any of her property. Therefore, she cannot succeed in this action for malicious use of process. Defendant has established that plaintiff failed to adduce evidence necessary to show an essential factual element that she would have to prove at trial, namely that prosecution of the previous proceeding interfered with her liberty or property. It did not. As such, plaintiff has failed to meet her burden opposing defendant's motion for summary judgment. Even assuming that plaintiff states a right of action for abuse of process, New Jersey's two-year statute of limitations precludes maintenance of such a lawsuit. It is therefore proper for the Court to grant summary judgment in favor of defendant.
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is granted. An appropriate order follows.
ORDER
Before the Court is defendant's motion for summary judgment. Plaintiff filed opposition, and the Court did not hear oral argument, choosing instead to decide the motion on the papers pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth in the attached opinion,
IT IS on this 23d day of November 1998
ORDERED that defendant's motion for summary judgment is granted.