Opinion
Civil Action No. 97-5886 (NHP).
July 6, 1999
Joseph H. Neiman, Esq., Hackensack, N.J., Attorney for Plaintiff.
Richard J. Guss, Esq., KUNZMAN, COLEY, YOSPIN BERNSTEIN, Warren, N.J., Attorneys for Defendant.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter initially came before the Court on the motion by defendant Pauline Chester for summary judgment. This Court heard oral argument on May 24, 1999. On that same day, this Court entered an Order granting defendant Pauline Chester's Motion for Summary Judgment and dismissing plaintiff Gavriel Elimeleh's Complaint With Prejudice and Without Costs. On June 16, 1999, plaintiff Gavriel Elimeleh filed a Notice of Appeal. Although this Court now reaches the same decision articulated at the conclusion of oral argument, this Court, in accordance with Local Civil Rule 52.1, will supplement said Opinion with the analysis provided herein.
DISCUSSION
At this point, the Court has devoted ample time to developing the factual record in this matter and, therefore, will expend little judicial resources in further explaining the facts. See Transcript of Proceedings dated May 24, 1999 at pages 1-22. Briefly, however, plaintiff Gavriel Elimeleh ("plaintiff") filed a Complaint against defendant Pauline Chester ("defendant") alleging: (1) malicious prosecution; (2) negligence; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress and (5) slander. See Complaint dated December 3, 1997. On April 28, 1999, defendant filed the subject Motion for Summary Judgment.
This Court will refer to the Transcript of Proceedings dated May 24, 1999 at "Tr."
I. Standard of Review for Summary Judgment
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought 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 suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. 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 this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate.
III. Malicious Prosecution
New Jersey law provides that four elements must be satisfied in order to sustain a claim for the tort of malicious prosecution:
(1) a criminal proceeding must have been instituted or continued by the defendant against the plaintiff;
(2) terminated in favor of the accused;
(3) with absence of probable cause for the charge; and
(4) with malice (which may be inferred from lack of probable cause) or primary purpose other than bringing the offender to justice.Robinson v. Winslow Township, 973 F. Supp. 461, 470 (D.N.J. 1997) (citingVoytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 322 (D.N.J. 1978)). See also Lind v. Schmid, 67 N.J. 255, 262 (1975); JEM Marketing, LLC v. Cellular Telecommunications Industry Association, 308 N.J. Super. 160, 172 (N.J.Super.Ct. App. Div. 199 8).
The failure to establish one element of the tort will cause plaintiff's claim to fail. See id. (citing Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 172 (N.J.Super.Ct. App. Div. 199 2), certif.denied, 133 N.J. 435 (1993)).
"A person is considered to have participated in a criminal action against another for the purposes of a malicious prosecution charge if he has taken some `affirmative action by way of advice, encouragement, pressure, etc. in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted.'" Robinson, 973 F. Super at 473-74 (citing Seidel v. Greenburg, 108 N.J. Super. 248, 257 (Law Div. 1969)); see also Devlin v. Greiner, 147 N.J. Super. 446, 471 (Law Div. 1977). "Mere passive knowledge of, or acquiescence or consent in, the acts of another who causes a prosecution is not sufficient to make one liable" for malicious prosecution. Id. (citing Seidel, 108 N.J. Super. at 257).
In this matter, it is undisputed that defendant neither signed a criminal Complaint nor instituted any criminal proceedings against plaintiff. Although defendant did go to the Metro Dade Police Department, the record reveals that she only sought the assistance of the local police department in having plaintiff return her vehicle. In fact, the deposition testimony of the police officer with whom defendant spoke on that day reveals that defendant did not seek the assistance of the police department in filing a criminal Complaint against plaintiff. See Exhibit D1, attached to Defendant Pauline Chester's Motion for Summary Judgment. Instead, the factual record demonstrates that as a result of defendant's anecdote, the Metro Dade Police Department, with the approval of an Assistant State Attorney, entered the vehicle as "stolen" into the police teletype. At that time, plaintiff was not automatically charged with "theft." Plaintiff was only criminally charged by the police department in Teaneck, New Jersey when he could not prove that he was the owner of the vehicle.
It is undisputed that defendant had the legal title to the subject vehicle.
In light of the foregoing, this Court cannot find that the first element of the tort of malicious prosecution is satisfied. Therefore, plaintiff's claim for malicious prosecution must fail.
II. Negligence
Plaintiff has failed to set forth any evidence to establish that the defendant failed to exercise due care and caution. Quite simply, plaintiff has not shown, through discovery, that defendant's decision to seek police assistance in the return of her vehicle establishes that she was in any way negligent. Clearly, the record reveals that the decision to charge and prosecute plaintiff was the independent action of the police.
Based upon the foregoing, plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress must also fail since the underlying substantive claims have been dismissed. Plaintiff also appears to have abandoned his slander claim inasmuch as he neither argued the merits of such claim to the Court during oral argument nor in his memorandum of law. See Tr, page 17 at lines 9-13.
III. Subject Matter Jurisdiction
The United States Supreme Court articulated the standard for determining whether a plaintiff's claims satisfy the jurisdictional amount in controversy in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938). The Court opined:
The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.Id. at 288-89.
In applying the "legal certainty" standard, the Third Circuit stated that "dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met." Suber v. Chrysler Corporation, 104 F.3d 578, 583 (3d Cir. 1997) (citing Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995)). Accordingly, when either a defendant or the court challenges plaintiff's allegations regarding the jurisdictional amount in a diversity case as set forth in the Complaint, the plaintiff must produce sufficient evidence to justify his or her claims. See Suber v. Chrysler Corporation, 104 F.3d 578, 583 (3d Cir. 1997) (citing Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995)). "[T]he record must clearly establish that after jurisdiction was challenged the plaintiff had an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of his jurisdictional contention." Id. (citing Berardi v. Swanson Memorial Lodge No. 48 of the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990)).
This Court will dismiss plaintiff's Complaint on the ground that plaintiff has not alleged sufficient facts, in either attached affidavits, depositions or during oral argument, to support the requisite amount of damages in a diversity case. This Court is certain that plaintiff's claims are, in reality, less than the jurisdictional amount.
This Letter Opinion supplements this Court's Order dated May 24, 1999.