The opinion of the court was delivered by: Honorable Jerome B. Simandle
This matter comes before the Court on the motion of Defendant New Jersey National Guard Youth Challenge Program ("NJYCP") to dismiss Plaintiff Cadet V.A.'s ("Plaintiff") Complaint [Docket Item 16] pursuant to Fed. R. Civ. P. 12(b)(6) and for summary judgment pursuant to Fed. R. Civ. P. 56. The Court will construe NJYCP's motion as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and not as a motion for summary judgment, because discovery was still pending at the time of the motion.*fn1 See Miller v. Beneficial Management Corp, 977 F.2d 834, 845 (3d Cir. 1992) (holding summary judgment on the merits was precluded by the incomplete state of discovery); Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984) (holding it error for the district court to grant summary judgment without a hearing while discovery requests regarding central issues of fact were still pending); Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977) (holding that a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course).
NJYCP argues for dismissal of Plaintiff's claims on the grounds that 1) the New Jersey Tort Claims Act ("the TCA"), codified as N.J. Stat. Ann. § 59:2-10, confers immunity on public entities for the criminal, malicious or willful acts of their employees, and 2) such immunity bars any negligence claims against public entities arising out of the same incident.*fn2 (Def.'s Br. in Supp. of Cross-Mot. at i, 3-9.) The principal issue to be determined is whether a state entity that is immune from liability for the criminal act of an employee under Section 2-10 of the New Jersey Tort Claims Act may nonetheless remain liable for the negligent hiring and supervision of that employee. This Court holds that such immunity does not extend to claims for negligent hiring and supervision of the employee, and accordingly, for the reasons set forth below, the motion will be granted in part and denied in part.
The facts set forth here are those alleged in the Complaint which the Court must accept as true for purposes of a Rule 12(b)(6) motion. NJYCP is a residential program at Fort Dix sponsored by the New Jersey National Guard for sixteen to eighteen year-olds, with the aim of helping them to responsibly prepare for their futures. (Compl. ¶ 2.) Plaintiff alleges that while she was a cadet at NJYCP Sergeant Marshall, a Sergeant assigned to the Program, physically and sexually assaulted her in a series of incidents.*fn3
Plaintiff claims that in the first incident, Marshall told her "you look so fine, you're gonna [sic] get me in trouble." (Compl. ¶ 5.) The following night Plaintiff confronted Marshall about his statement. According to Plaintiff, Marshall's response was to first say "no one will believe you," and second to shove her against a wall and say "if you relax, nothing bad will happen unless you want it to -- I will call for you when I need you." (Compl. ¶¶ 7-8.) Plaintiff claims that Marshall first raped her a few nights later, after waking her and forcing her into an office. She claims he then raped her a second time a few nights after that in a similar manner. (Compl. ¶¶ 9, 11.) At that time, Plaintiff was sixteen years old. (Compl. ¶ 12.)
As noted earlier, NJYCP argues that 1) Plaintiff's claims should be dismissed because NJYCP is immune under the TCA Section 2-10 from liability for the criminal, malicious or willful acts of its employees, and 2) the immunity conferred by the TCA bars all of Plaintiff's factually-related negligence claims, including claims for negligent hiring and supervision. (Def.'s Br. In Supp. Of Cross-Mot. at i, 3-9.) For the following reasons, the Court grants the motion to dismiss insofar as Plaintiff alleges vicarious liability but denies the motion to dismiss Plaintiff's allegations of negligent hiring and supervision.
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts and must view all allegations in the Complaint in the light most favorable to the plaintiff. See id. at 236; Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991); Glenside West Corp. V. Exxon Co., U.S.A., 761 F.Supp. 1110, 1117 (D.N.J. 1991); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
In the Complaint, it is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. See Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). When a motion to dismiss is before the court, the question for the court is not whether plaintiff will ultimately prevail; rather, it is whether she can prove any set of facts in support of her claims that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the Complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).