The opinion of the court was delivered by: Simandle, District Judge
[relates to Docket Item Nos. 6 and 9]
This is a tragic case - both in terms of the events that lead to Plaintiff filing her claim (the drowning death of her seven-year old son) and in terms of the manner in which it was handled by Plaintiff's counsel (counsel's failure to file a notice of claim required under New Jersey law). This case involves claims made by Plaintiff Tondalia Cliett ("Plaintiff"), as administratrix of the estate of her late son, Quaran Cliett and in her own right, for wrongful death surrounding Quaran's drowning off of the Sixth Street Beach in Ocean City, New Jersey. Currently before the Court are two motions: (1) a motion to dismiss by Defendant City of Ocean City ("Defendant") and (2) a motion for leave to file a late notice of claim under the New Jersey Tort Claims Act by Plaintiff.
For the reasons discussed below, the Court will convert Defendant's motion to dismiss into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(b). This conversion is appropriate as the Court will consider materials outside of the pleadings, namely an affidavit of Defendant's Director of Administrative Services and Personnel. The Court then will grant Defendant's motion for summary judgment as Plaintiff has failed to comply with the requirement that a plaintiff file a notice of tort claim under the New Jersey Tort Claims Act with Defendant and therefore, Plaintiff's claims are barred. Second, the Court will deny Plaintiff's motion for leave to file late notice of claims under the New Jersey Tort Claims Act as Plaintiff has failed to demonstrate extraordinary circumstances why Plaintiff did not file a notice of claim within 90 days after her claim accrued.
This case stems from the June 18, 2006 drowning of a seven-year old boy, Quaran Cliett, in Ocean City, New Jersey. On June 18, after life guards had left the beach for the day, Quaran's body was found in the water in an area off of Ocean City's Sixth Street beach after he was reported missing. According to Tondalia Cliett, Quaran's mother, Quaran was pulled outward from the beach by the current. (Certification of Gustine Pelagatti ¶ 2, Ex. 1.) Emergency personnel were called and responded to the scene. (Id.) Quaran was taken by Ocean City Fire Department paramedics to Shore Memorial Hospital, where, a short time after his arrival, he was pronounced dead. (Id. at Ex. 2 and 3.) The cause of death was drowning.
Approximately one month later, on July 12, 2006, Plaintiff sought legal advice and signed a power of attorney with the law firm of Pelagatti and Pelagatti to represent her in a claim for damages against the City of Ocean City stemming from the drowning death of Quaran. (Pl.'s Opp. Br. ¶ 15, at 2.) Counsel for Plaintiff began an investigation into Quaran's death, taking photographs of the area surrounding the drowning site on July 30, 2006 (id. ¶ 16), retrieving the Ocean City Police report and EMS report on the incident on August 22, 2006, and reviewing the medical reports from the Shore Memorial Emergency Department. Finally, on September 12, 2006, counsel had a telephone conference with an expert retained by Plaintiff, Shawn DeRosa. During the call, Mr. DeRosa opined that Defendant's life guards were negligent and that this negligence caused Quaran's drowning and death.
Plaintiff's counsel served Defendant with a copy of the Complaint on September 14, 2006, filing it with this Court on September 18, 2006. The two-count Complaint brings (1) a wrongful death claim (Complaint ¶¶ 1-10) and (2) a survival action (Complaint ¶¶ 11-17.) [Docket Item No. 1.] On November 24, 2006, Defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that Plaintiff's claims should be dismissed because Plaintiff failed to follow the procedures established in the New Jersey Tort Claims Act (the "Tort Claims Act") because Plaintiff failed to file a Notice of Claim with the City of Ocean City within 90 days of the date Plaintiff's claim accrued. Indeed, according to Defendant, Plaintiff was required to file such notice by September 18, 2006. [Docket Item No. 5 and 9.]*fn1
Upon receiving Defendant's motion to dismiss, Plaintiff filed (1) a Notice of Claim with Defendant (on November 28, 2006) and (2) a motion for leave to file late Notice of Claim under the Tort Claims Act (on December 5, 2006). [Docket Item No. 6]. Both motions were fully briefed*fn2 and the Court did not hear oral argument on either motion.*fn3
Summary judgment is appropriate when the materials of record "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."*fn4 Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 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."*fn5 Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The New Jersey Tort Claims Act (the "Tort Claims Act") states that "[n]o action shall be brought against a public entity or public employee under [the Tort Claims Act] unless the claim upon which it is based shall have been presented in accordance with the procedures set forth in this Chapter." N. J. Stat. Ann. 59:8-3. Specifically, under the Act, a claimant must sign and file a notice of tort claim (a "Notice of Claim") with the public entity within 90 days from accrual of the cause of action. Id. at 59:8-8.*fn6 After the Notice ...