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May 5, 2005.

ANGELO ORTIZ, et al., Plaintiffs,

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 below.


  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 Ortiz.

  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 15.)

  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


  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; ...

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