The opinion of the court was delivered by: Jerome B. Simandle, United States District Judge
The present matter involves a dispute between a police officer's family, the Narduccis, and their neighbors, the Simones — a family who had four boys under the age of 9. Ongoing problems between the two families simmered until a day in July 1999 when three of the Simone boys threw rocks and dirt into the Narduccis' swimming pool. Mr. Narducci, who happened to be an officer of the Borough of Bellmawr's Police Department, decided to detain 9-year-old Stephen Simone, taking him to the police station's jail cell in response. The situation deteriorated from that point. The actions of the Narduccis and the Simones from that day forward form the basis of this lawsuit.
The present motion for partial summary judgment involves the dispute over the date of the swimming pool incident. Defendants argue that there is no question of fact that it occurred on July 23, 1999, and that the adult plaintiffs' claims in the July 25, 2001 Complaint are therefore barred by the two-year statute of limitations. Plaintiffs, however, argue that the incident occurred on July 28, 1999, and that the adult plaintiffs' claims were timely filed. The present motion does not address the children plaintiffs' claims, since their statute of limitations does not commence to run until age 18.
In July 1999, plaintiffs Lisa Simone and Stephen Simone, Sr. lived in Bellmawr, New Jersey with their four children, Stephen, Jr., age 9, Vincent, age 8, Michael, age 7, and Justin, age 3. (Complaint ¶¶ 1, 6; Hartman Cert., Ex. B, L. Simone Dep. at 23:21-23:4.) They lived next to defendant Robert Narducci and his wife, Susan Narducci. (Id. ¶¶ 2, 7.) Narducci was a police officer with the Bellmawr Police Department. (Id. ¶ 18.)
On a day in July 1999, the three oldest Simone children, plaintiffs Stephen Jr., Vincent, and Michael, were playing in their yard, throwing rocks and dirt at each other. (Defs.' Statement of Facts ¶ 5; Pls.' Statement of Facts ¶ 5.) Some landed in the Narducci's swimming pool. (Id.) Defendant Officer Narducci apparently went to the Simones' house and confronted Lisa Simone about his pool, and then, without Lisa's knowledge or permission, took Stephen Jr. to the police station and placed him in a jail cell to "teach him a lesson." (Complaint ¶¶ 9-12.) Officer Narducci then apparently contacted Lisa Simone and told her that she needed to bring Vincent and Michael to the station. (Id. ¶ 14.) He allegedly placed Vincent in the cell with Stephen, Jr., separated Michael from his mother, and allegedly "verbally harassed and abused" the children "to punish and frighten them," at the police station. (Id. ¶ 15). From that day forward, plaintiffs say Narducci harassed and intimidated them and kept them under constant surveillance until they finally moved from Bellmawr. (Id. ¶ 50.) It has developed, as counsel have noted, that in fact the Narducci family moved away months before the Simone family moved.
On July 25, 2001, plaintiffs filed their Complaint with this Court alleging deprivation of civil rights, intentional infliction of emotional distress, and negligent infliction of emotional distress.*fn1
At issue in this motion is the date of the swimming pool incident. Defendants argue that it occurred on Friday, July 23, 1999; plaintiffs insist it occurred on Wednesday, July 28, 1999.
Defendants have pointed to police documents, court documents, a doctor's report, and personal testimony to support their assertion that the event occurred on July 23, 1999. Neither side has requested further opportunity to present testimony on the issue of dates.
First, the police documents that relate to the event include an incident date of July 23, 1999. Three Bellmawr Police Department Arrest Reports, one for each of the three Simone boys, were created on July 24, 1999 and state that the "arrest date" was July 23, 1999. (Hartman Cert., Ex. G.) The daily log report for July 23, 1999, which lists the "sequence of calls [received by the police station] by number and date and time," includes a call about the Narducci/Simone "criminal mischief" incident. (Defs.' Ex. D.) It also includes a call that was made by the Spenos, another neighboring family who also complained about the Simone children's behavior since their pool was also damaged by the dirt and rocks thrown by the Simones. (Id.; Defs.' Ex. C, Walsh Dep. at 33:2-34:20.) The Bellmawr Chief of Police testified that the date of the call in the daily log report reflects the date the call was received by the dispatcher since each call is given a sequential number when it comes in. (Id. at 33:7-24.) If the dispatcher, or anyone else, were to try to input a call out of sequence, the log would reflect what happened because, "[i]f a dispatcher went to try to insert something out of sequence say it was July 28th, 1999 and he said you know what, this happened on the 23rd . . . and he tried to go back and insert it . . . [i]t wouldn't take it because . . . [i]t would be three days difference worth of numbers. It would be in the wrong number sequence." (Id. at 34:12-20.)
Both the Bellmawr Police Department Incident Report for the Narducci/Simone incident and the Incident Report for the related Speno/Simone incident identify the "incident date" as July 23, 1999. (Defs.' Ex. B; Hartman Cert., Ex. G.) However, the Narducci report identifies "today's date" as July 24, 1999 and the "report date" as July 19, 1999, (Defs.' Ex. B), and the Speno report identifies "today's date" and the "report date" as July 20, 1999, (Hartman Cert., Ex. G). Chief William Walsh of the Bellmawr Police Department testified that the July 23, 1999 "incident dates" are the reliable dates on the documents because:
The report date here and today's date up here it takes from the computer's internal clock and calendar. So if somebody reset the computer system and some reason changed the date or the date was changed accidentally, it would reflect that on the report when it printed it out, but it didn't change the incident date that was put in by the officer. That was manually put in by the officer.
(Defs.' Ex. C, Walsh Dep. at 28:11-22.) Chief Walsh admits that an officer could later change the incident date on the report, but says that the original master copy in the police file would still have the original date because the master copy cannot be changed without authorization from the police chief. (Id. at 29:7-30:9.) He says that since both reports include July 23, 1999 as the incident date, the different dates in the computer-generated date positions just show that the "internal clock probably was off on that computer." (Id. at 30:10-31:4.) Clearly the computer's time-clock date was the incorrect date, as no party asserts that these events happened on July 20.
Second, defendants present court documents which show a July 23, 1999 incident date. On July 28, 1999, Narducci's wife, Susan, filed three Juvenile Delinquency Complaints in New Jersey Superior Court, Camden County, one for each of the three Simone boys, and alleged that the swimming pool incident occurred "on or about 7/23/99 at 4:45 p.m." (Defs.' Ex. H; Hartman Cert., Ex. D.) Also included in the record are summonses which alert the Simones to charges of "caus[ing] damage and destruction to the victim's residence and property" on July 23, 1999, (id., Ex. E), and the hearing transcript from the juvenile delinquency proceeding in New Jersey Superior Court where Hearing Officer Hiram A. Soto stated that "[a]ll three juveniles are charged with criminal mischief, for an incident that occurred on July 23, 1999 . . . specifically [for] throwing rocks and clay into the victim/complainant's swimming pool," (id., Ex. B at Ex. 2 at 3:12-22).
Third, defendants submit the report of Dr. Elliot Atkins, a psychologist that defendant Narducci's wife, Susan, visited after the swimming pool incident. (Brooks Cert. ¶ 7.) Defendants have offered a redacted copy of Dr. Atkins' notes from his July 27, 1999 appointment with Susan Narducci "re: children next door demolishing her house."*fn2 (Brooks Cert., Ex. A.) The notes show that Susan Narducci stated during the July 27, 1999 appointment that "last week they shoveled the dirt from (the digging of their pool) onto our yard." (Id.) She said that she told her husband that "I can't take it any more — the stress of worrying about what they're going to do next," and that she has "had a headache since Fri." (Id.) She said that she loves her house, but "feel[s] trapped [and] afraid to leave the house alone. They've damaged my pool." (Id.) This record was made on July 27, 1999, and its reference to "Fri." would be to July 23, 1999.
Finally, defendants offer the deposition testimony of defendant Narducci and of Susan Narducci. Defendant Narducci testified that he remembers that the incident occurred on a Friday because he talked to his wife about it over the weekend. (Defs.' Ex. F, R. Narducci Dep. at 247:3-12.) Susan Narducci testified that she remembers it occurred on Friday, July 23, 1999 because she remembers that her daughter was at a sleepover birthday party that night. (Defs.' Ex. G, S. Narducci Dep. at 57:13-58:11.)
2. Wednesday, July 28, 1999
Plaintiffs Lisa Simone and Stephen Simone, Sr. point to their court filings and their testimony to support their assertion that the incident occurred on Wednesday, July 28, 1999.
First, their court filings indicate the July 28th date. Lisa Simone filed a complaint against defendant Narducci on August 4, 1999 in which she stated that the "date of offense" when he "kidnapped my son" was July 28, 1999. (Hartman Cert., Ex. F.) Also included in the record is the summons for defendant Narducci to appear which includes the July 28th date, (id., Ex. E), and the record from the ...