United States District Court, D. New Jersey
May 5, 2005.
ANGELO ORTIZ, et al., Plaintiffs,
OCEAN COUNTY PROSECUTOR'S OFFICE, et al., Defendants.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
THIS MATTER comes before the Court on Defendant Nicole Ward's
Motion for Summary Judgment (docket item # 31). The Court having
considered the papers submitted by the parties, and for good
cause shown, grants Defendant's Motion for the reasons set forth
I. PROCEDURAL BACKGROUND
On or about August 7, 2003, Plaintiffs filed a ten-count
Complaint against Defendants asserting causes of actions for
alleged violations of the Fifth and Fourteenth Amendments (Count
One), Deliberate Indifference (Count Two), violations of
42 U.S.C. §§ 1983, 1985, and 1986 (Counts Three, Four and Five),
Negligence (Count Six), Defamation (Count Seven), Abuse of
Process (Count Eight), Malicious Prosecution (Count Nine), and
Intentional Infliction of Emotional Distress (Count Ten). Plaintiffs are the mother,
father, and siblings of Damian Ortiz. The lawsuit alleges causes
of action by the Plaintiffs individually and on behalf of Damian
Previous motion practice in this case dismissed of Counts One
through Five of the Complaint. Of the remaining five counts, all
tort claims, only Count Ten pertains to Defendant Ward. The claim
of intentional infliction of emotional distress as asserted by
Plaintiffs in their individual capacities was dismissed on or
about April 7, 2004, by stipulation of the parties (docket item #
27). The only remaining claim against Defendant Ward, therefore,
is intentional infliction of emotional distress sought on behalf
of the Plaintiffs' decedent, Damian Ortiz. The instant motion
seeks to dismiss that claim.
Defendant Ward filed her motion on or about May 21, 2004.
Plaintiffs filed a response on or about June 17, 2004, and
Defendant filed a reply on or about the same day. Shortly
thereafter, Plaintiffs' counsel, Mandy R. Steele, died and
subsequently, on or about February 8, 2005, a Court Order
substituted George P. Stasiuk, Esq. as Plaintiffs' counsel.
Although the instant motion was fully-briefed prior to the
appointment of new counsel, Magistrate Judge Hughes permitted
Plaintiffs the opportunity to submit additional opposition to the
motion no later than March 24, 2005. As of May 5, 2005,
Plaintiffs have not submitted additional opposition, nor have
they requested an extension of time. Therefore, the Court
considers the motion fully-briefed on the papers it has before it
and will decide the motion based upon those submissions. II. UNDISPUTED FACTS
The Court considers the following facts for purpose of this
Motion, which the parties represent as undisputed through their
respective briefs.*fn1 Plaintiffs' decedent, Damian Ortiz,
and Defendant Nicole Ward attended a party on July 25, 2001, at a
private residence in Toms River, New Jersey. Following the party,
Defendant Ward filed charges against Damian Ortiz and others
alleging that she was sexually assaulted at the party.*fn2
The allegations by Defendant Ward resulted in an arrest and
formal charges against Damian Ortiz. On or about August 22, 2002,
Damian pled guilty to downgraded charges of conspiracy to commit
sexual assault against Nicole Ward. The state court judge
accepted Damian's plea after questioning his understanding of the
plea bargain, his knowledge of his rights, and the voluntariness
of his decision to enter the guilty plea.
The plea hearing revealed the following account regarding the
incident involving the sexual assault. Nicole Ward, who has some
mental disabilities, was a victim of sexual assault on July 25,
2001. (Tr. of Plea, at 13-15.) On that day, Damian Ortiz and two
of his friends invited Nicole to a party. (Id. at 10-11.) One
of those friends picked up Nicole and brought her to the party
held at another friend's home. (Id. at 11.) Damian was already
at the party and before Nicole's arrival, he and his friends talked about having sex with
Nicole that afternoon regardless of "whether she was up for it."
(Id. at 12.) Damian believed that Nicole would have sex with
whomever wanted it. (Id. at 13.) Although Damian did not have
sexual contact with Nicole that afternoon, he was aware that
others were upstairs in a room with her. (Id.) He later learned
that while in that room, several people did have sexual contact
with her. (Id. at 14.) When she emerged from the room, Damian
described Nicole to be laughing and not upset, but also admitted
that he and others spit at her and called her names. (Id. at
As part of Damian's plea bargain, he agreed to testify against
another individual implicated in the sexual assault. However,
before testifying, Damian committed suicide on October 27, 2002.
Subsequently, in August 2003, Plaintiffs filed their ten-count
Complaint in this Court alleging, amongst other causes of action,
that Nicole Ward made false allegations of sexual assault
intending to inflict emotional distress.*fn3
III. LEGAL STANDARD
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366
(3d Cir. 1996). In deciding whether there is a disputed issue of
material fact, the Court must view the underlying facts and draw
all reasonable inferences in favor of the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pennsylvania Coal Ass'n v. Babbitt,
63 F.3d 231, 236 (3d Cir. 1995). The threshold inquiry is whether
there are "any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986).
Once the moving party has properly supported its showing of no
triable issue of fact and of an entitlement to judgment as a
matter of law, the non-moving party "must do more than simply
show that there is some metaphysical doubt as to material facts."
Matsushita, 475 U.S. at 586; see also Anderson,
477 U.S. at 247-48. The non-moving party must "go beyond the pleadings and
by [its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324; Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("to raise a
genuine issue of material fact . . . the [non-moving party] need
not match, item for item, each piece of evidence proffered by the
movant," but rather "must exceed the `mere scintilla'
threshold"), cert. denied, 507 U.S. 912 (1993).
The only remaining count against Defendant Ward is Count Ten,
Intentional Infliction of Emotional Distress, as alleged on
behalf of the decedent Damian Ortiz. Plaintiffs' Complaint
asserts, "As a result of the acts of the Defendants, Plaintiffs
were caused to suffer great emotional stress and emotional harm . . .
[and] Defendants acted with the specific intent of causing
the Plaintiffs harm, or with the knowledge that their actions
would cause the Plaintiffs harm." (Compl. at 12.) To establish
this claim, Plaintiffs must show: (1) defendant engaged in conduct that was so extreme
and outrageous `as to go beyond all possible bounds
of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community'; and 2)
the conduct was intended to produce the emotional
distress, or was in deliberate disregard of a high
probability that emotional distress will follow; and
(3) the plaintiff suffered emotional distress that is
so severe that no reasonable person could be expected
to endure it; and (4) defendant's actions were the
proximate cause of the plaintiff's emotional
Costello v. City of Brigantine, 2001 U.S. Dist. LEXIS 8687, at
*66 (D.N.J. June 28, 2001) (quoting Buckley v. Trenton Sav. Fund
Soc., 111 N.J. 355, 366 (1988)).
In the present case, the alleged "conduct" at issue is a false
charge of sexual assault against Damian Ortiz. Plaintiffs argue
that Defendant's false allegation rises to the level of conduct
that would entitle Damian Ortiz's estate to damages for
intentional infliction of emotional distress. Defendant Ward
asserts that Plaintiffs' claim fails as the required proof is
similar for intentional infliction of emotional distress stemming
from malicious prosecution, defamation, and false-light invasion
of privacy. In other words, Defendant argues Damian Ortiz's
guilty plea precludes him from asserting that her allegation of
sexual assault was false and, therefore, any related claim of
emotional distress will fail. Defendant analogizes to Walko v.
Kean College, 235 N.J. Super 139, 149 (Law Div. 1988), where the
New Jersey Superior Court held that non-actionable defamation
cannot be the basis as a recovery for intentional infliction of
Plaintiffs' opposition to summary judgment focuses on the
truthfulness of Defendant's allegations, insisting that "if a
jury determines the allegations were false, the Plaintiffs are,
in deed [sic], entitled to damages for emotional distress." (Pl.
Opp. to Summ. J. at 6.) Plaintiffs argue that the truthfulness of
the allegation is "a significant material fact in dispute,"
preventing the Court from granting summary judgment. (Id.) Plaintiffs do
acknowledge that Damian pled guilty, but argue he "never pled
guilty to the alleged act." (Id.) However, as Defendant
correctly notes, the fact that Damian pled guilty to a downgraded
charge does not lead to the conclusion that the initial
accusation was false or that the proceedings terminated in his
favor. See Mondrow v. Selwyn, 172 N.J. Super 379, 384 (App.
Div. 1980) (holding that in a malicious prosecution case where
defendant "compromised for his peace," he could not later contend
that the proceedings terminated in his favor).
In the instant case, Damian Ortiz made a conscious and
voluntary decision to plead guilty to a lesser charge rather than
face the accusations of sexual assault made by Defendant Ward. On
August 22, 2002, Damian appeared before the Honorable Barbara A.
Villano in the Superior Court of New Jersey, where he was
examined by the Court and the county prosecutor regarding his
guilty plea. (Tr. of Plea at 6-16.) Damian acknowledged that he
wanted to plea guilty to the fourth-degree charge in return for
the dismissal of the higher charges against him. (Id. at 7.)
Damian described a devised plan to sexually assault Nicole Ward,
a young girl with mental disabilities. Considering this
admission, the Court fails to see how allegations made by
Defendant Ward could possibly be described as "extreme or
outrageous," or "beyond all bounds of decency."
The Court is convinced that Defendant Ward has met her burden
for summary judgment and as such, Plaintiffs must present
specific facts which present issues for trial. However,
Plaintiffs adduce no evidence to show this Court that Defendant
Ward made her allegations with the intent to inflict emotion
distress or with a deliberate disregard of high probability that
emotion distress would result. Plaintiffs do not present any
factual basis for this Court to conclude that Damian suffered emotional distress so severe such
that no reasonable person could be expected to endure it.
Finally, Plaintiffs fail to introduce facts that indicate any
resulting existing distress was directly caused by Defendant
Ward's allegations. These elements are required to succeed on a
claim for intentional infliction of emotion distress, and
Plaintiffs fail to present any facts that would lead this Court
to find in their favor.
This Court finds no genuine issue as to the material facts of
Defendant's conduct and finds that Defendant Ward's allegations
were not "so extreme or outrageous" to meet the standard for
infliction of emotion distress. Further, the Court does not have
before it any evidence of her intent to inflict such distress,
nor is there any evidence presented by Plaintiffs which shows a
purposeful disregard of a high probability of resulting distress.
Plaintiffs cannot succeed on a cause of action for the
intentional infliction of emotional distress without evidence of
these elements. As such, Defendant Ward is entitled to judgment
as a matter of law and this Court grants summary judgment in her
favor as to Count Ten of the Complaint.
For the reasons set forth above, Defendant Ward's Motion for
Summary Judgment is GRANTED. An appropriate form of order will