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
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
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; ...