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FORCELLA v. CITY OF OCEAN CITY

November 17, 1999

GINA FORCELLA, PLAINTIFF,
v.
CITY OF OCEAN CITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

OPINION

This case presents the novel issue of whether section 59:8-10(c) of the New Jersey Tort Claims Act ("TCA") permits the constructive service of a notice of claim upon public entities. Plaintiff, Gina Forcella ("Forcella"), has moved before this Court for leave to file a late notice of claim against the Ocean City Police Department and the Ocean City Chiefs of Police, Robert Blevins and James Nickles, pursuant to the TCA, N.J.S.A. 59:8-9 (West Supp. 1999). For the reasons set forth below, I will deny Plaintiff's motion because I find first that Forcella has failed to demonstrate the "extraordinary circumstances" required to file a late notice of claim. Second, I find that under N.J.S.A. 59:8-10(c), the Ocean City Police Department cannot be "constructively served." Moreover, I conclude that the record in this case contains insufficient evidence to find that the Chiefs of Police of the Ocean City Police Department are employees of a properly served public entity. Finally, I find that as a "local public entity," the Ocean City Police Department should have been served with a separate notice of claim.

Because Forcella's Amended Complaint alleges violations of Title VII of the Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. § 2000e (1994), the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101-12213 (1994), 42 U.S.C. § 1983 (1994), the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 — 10:5-49 (West Supp. 1999), and various state laws, this Court has jurisdiction pursuant to 28 U.S.C. § 1331,*fn1 1343,*fn2 and 1367.*fn3

I. BACKGROUND

On August 18, 1998, Forcella filed a complaint alleging that she was constructively discharged from her job as a clerk typist as a result of the unlawful and discriminatory employment practices of the City of Ocean City Department of Public Safety. See Complaint at ¶ 36. Forcella claims that these employment practices were in violation of Title VII of the Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. § 2000e (1994), the Americans With Disabilities Act of 1990,*fn4 42 U.S.C. § 12101-12213 (1994), 42 U.S.C. § 1983 (1994), and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 — 10:5-49 (West Supp. 1999). See Complaint at ¶¶ 68-106. She further alleges various New Jersey tort claims, including intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. See Complaint at ¶¶ 107-134.

On February 4, 1999, the Original and Additional Defendants filed an Answer to the Amended Complaint, denying liability and asserting various affirmative defenses. See Def.'s Answer at 12-17 (filed Feb. 4, 1999). In their Answer, the Additional Defendants averred that "[i]nsofar as any State law claim by [Forcella], other than a claim under the New Jersey Law Against Discrimination, the claim must be dismissed as [Forcella] failed to comply with the notice provisions of the New Jersey Tort Claims Act N.J.S.A. 59:8-1 et seq." Def.'s Amended Answer at ¶ 20.

Three months later, on May 4, 1999, Forcella moved before this Court for leave to file a late Notice of Claim pursuant to N.J.S.A. 59:8-9 (West Supp. 1999). See Plaintiff Gina Forcella's Motion in Support of Application to File Notice of Late Claim ("Motion in Support of Application") at 1. It is undisputed that Forcella failed to file and serve a notice of claim upon the Additional Defendants within ninety days from the date of her alleged constructive discharge.

In support of her motion for leave to file a late Notice of Claim, Forcella argues that she has "sufficient reasons for late filing" because: (1) Forcella's counsel was unaware until April 13, 1999 that the Defendants were asserting the affirmative defense of the TCA notice provision, N.J.S.A. 59:8-9 (West Supp. 1999), see Motion in Support of Application at ¶ 8; (2) "the information indicating liability of the three additional defendants did not become available to [Forcella], despite [Forcella's] best efforts to discover said information, until after ninety (90) days from the accrual of [Forcella's] claim . . .," id. at ¶ 9; and (3) Forcella's counsel believed that the proper service of the Original Defendants put the Additional Defendants on constructive notice and that further service therefore was not required. See Pl.'s Reply at 2.

The Defendants oppose Forcella's motion, arguing that none of the facts supporting the above arguments constitute the "extraordinary circumstances" required to allow the filing of a late Notice of Claim, under N.J.S.A. 59:8-9 (West Supp. 1999), as interpreted by the New Jersey courts.

At the outset I note that Forcella's motion for leave to file a late notice of claim as to the Additional Defendants relates only to the state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. The notice provisions of the TCA do not apply to Forcella's claims asserted under Title VII of the Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. § 2000e (1994), the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101-12213 (1994), 42 U.S.C. § 1983 (1994), or the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 — 10:5-49 (West Supp. 1999). See Fuchilla v. Layman, 109 N.J. 319, 331, 338, 537 A.2d 652 (1988) (holding that the notice provisions of the TCA do not apply to a former employee's claim under 42 U.S.C. § 1983 or the NJLAD); see also McDonnell v. State of Illinois, 319 N.J. Super. 324, 341, 725 A.2d 126 (App. Div. 1999) (finding that claims of discrimination under NJLAD are not subject to the notice requirements of the TCA). Consequently, the issue before this Court is whether to grant Forcella's motion for leave to file a late notice of claim only with respect to the state law claims and, as a consequence, this opinion does not address the propriety of the remaining federal claims asserted against the Additional Defendants. I now turn to the merits of Forcella's arguments.

II. THE NEW JERSEY TORT CLAIMS ACT AND THE EXTRAORDINARY
    CIRCUMSTANCES NECESSARY TO FILE A LATE NOTICE OF CLAIM

Under the New Jersey Tort Claims Act, a statutory regime regulating tort claims against public entities and employees, a plaintiff has ninety days, from the time a claim accrues, to file a notice of claim. N.J.S.A. 59:8-8 (West Supp. 1999). Section 59:8-8 provides that:

  A claim relating to a cause of action for death or
  for injury or damage to person or to property shall
  be presented as provided in this chapter not later
  than the ninetieth day after accrual of the cause of
  action. After the expiration of six months from the
  date notice of claim is received, the claimant may
  file suit in an appropriate court of law. The
  claimant shall be forever barred from recovering
  against a public entity or public employee if . . .
  [h]e failed to file his claim with the public entity
  within 90 days of accrual of the claim except as
  otherwise provided in section 59:8-9. . . .

Id. at 59:8-8(a) (emphasis added). The New Jersey courts have held that the purpose of the ninety-day limit is to "compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh." O'Neill v. City of Newark, 304 N.J. Super. 543, 549, 701 A.2d 717 (App. Div. 1997) (citing Lutz v. Township of Gloucester, 153 N.J. Super. 461, 466, 380 A.2d 280 (App. Div. 1977)).

The filing requirements of the TCA are tempered by the provisions of section 59:8-9, which provides for the filing of a late notice of claim. See N.J.S.A. 59:8-9 (West Supp. 1999). Before 1994, a plaintiff proceeding under section 59:8-9 was required to show "sufficient reasons" for failing to file within the ninety-day period. However, following the 1994 amendment:

  A claimant who fails to file notice of his claim
  within 90 days as provided in section 59:8-8 of this
  act, may, in the discretion of a judge of the
  Superior Court, be permitted to file such notice at
  any time within one year after the accrual of his
  claim provided that the public entity or the public
  employee has not been substantially prejudiced
  thereby. Application to the court for permission to
  file a late notice of claim shall be made upon motion
  supported by affidavits based upon personal knowledge
  of the affiant showing sufficient reasons
  constituting extraordinary circumstances for his
  failure to file notice of claim within the period of
  time prescribed by section 59:8-8 of this act or to
  file a motion seeking leave to file a late notice of
  claim within a reasonable time thereafter; provided
  that in no event may any suit against a public entity
  or a public employee arising under this act be filed
  later than two years from the time of the accrual of
  the claim.

N.J.S.A. 59:8-9 (West Supp. 1999) (emphasis added).

The amended statute "does not define what circumstances are to be considered `extraordinary' and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of `extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626, 731 A.2d 14 (1999) (citing Allen v. Krause, 306 N.J. Super. 448, 455, 703 A.2d 993 (App. Div. 199 7)). Moreover, courts will consider whether a combination of factors elevates the case to the level ...


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