July 18, 2008
KATHERINE KLEMP, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, NEW JERSEY STATE POLICE, NEW JERSEY OFFICE WORKPLACE POLICY ADMINISTRATION AND ENFORCEMENT, MICHAEL SOVEY, JAMES FISH, AND WALTER KAVANAUGH, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-945-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 8, 2008
Before Judges Parker and Gilroy.
Plaintiff Katherine Klemp appeals from an order entered on August 17, 2007 dismissing the complaint on the ground that it was barred by the statute of limitations. We reverse and remand.
In her complaint, filed on April 17, 2007, plaintiff alleged that defendants, New Jersey Department of Law and Public Safety, New Jersey State Police, New Jersey Office Workplace Policy Administration and Enforcement, Michael Sovey, James Fish, Walter Kavanaugh and John Doe and Jane Doe (1-5), created a hostile work environment against plaintiff and that she was retaliated and discriminated against because she reported the hostile environment.
Plaintiff was sworn in as a New Jersey State Trooper on November 13, 1998. From April 30, 2005 to the time the complaint was filed she was assigned to the Digital Technology Investigations Unit. Prior to that assignment, she had been assigned to the Organized Crime Central Unit. During that assignment, plaintiff alleges that the individual defendants created a hostile work environment. Plaintiff reported the hostile work environment in March 2005, and was interviewed by Sergeant Belinda Pizzaro from the Equal Employment Opportunity/Affirmative Action Office (EEO/AA) of the New Jersey State Police. Plaintiff claims that the investigation of her complaint, which began in March 2005, had not yet been concluded by the time she filed her complaint on April 17, 2007. Plaintiff's allegations of harassment, demeaning comments, negative evaluations and hostile work environment appear to be related solely to the period of time she was assigned to the Organized Crime Central Unit which ended on April 30, 2005.
No discovery has been undertaken in this case because defendants moved in lieu of an answer to dismiss the complaint on the ground that the statute of limitation barred the claims. The matter was decided entirely upon the allegations in the complaint.
In granting defendants' motion to dismiss, the trial court stated, "[E]ven if it's a motion to be more particular in the complaint, and I grant that motion for example or I say let's have depositions, am I doing you any favor by saying this matter is barred by the statute of limitations? So all this stuff [that] you can put [in] there in any supplementary material that you can provide would be to no avail . . . ." The court then concluded:
I will grant the motion to dismiss the complaint on the ground of the statute of limitations argument only and -- even though I find that the allegations contained relating to the specific acts are, to put it mildly, thin, I could permit a motion to amend the complaint and supplement the complaint and obtain a more definitive statement as might be the results of a motion under Kotok Build[ing] v. Charvine Company[,] 183 N.J. Super. 101, a (1981) case. But, the complaint itself sets forth alleged incidents occurring over two years before the complaint was filed, and that's the bottom line.
In this appeal, plaintiff argues that the trial court erred in (1) granting defendants' motion to dismiss pursuant to Rule 4:6-2(e); and (2) failing to recognize that even if the statute of limitations barred the complaint, there are equitable exceptions to the statute. Rule 4:6-2(e) provides that a party may plead as a defense, failure to state a claim upon which relief can be granted. The statute of limitations is commonly accepted as a ground for dismissal under the rule. Pressler, Current N.J. Court Rules, comments 4.2.4(h) on R. 4:6-2 and 36.1 on R. 4:5-4. Where there are allegations of continuous conduct, however, the cause of action accrues on the date the alleged conduct ceases. See, e.g., Alliance For Disabled in Action, Inc. v. Renaissance Enter., 371 N.J. Super. 409, 418-19 (App. Div. 2004), aff'd o.b., 185 N.J. 339 (2005); Alliance v. Continental Prop., 371 N.J. Super. 398, 404 (App. Div. 2004), aff'd o.b., 185 N.J. 331 (2005); Shepherd v. Hunterdon Dev. Center, 174 N.J. 1 (2002); Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 101-04 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002).
Here, the complaint is particularly vague in that no specific incidents are alleged; nor are any dates on which such conduct purportedly occurred; nor are any individuals identified with respect to specific conduct or incidents. Rather, the complaint is general and alleges only unspecified conduct that occurred between November 2003 and April 30, 2005.
It is well established that a complaint must fairly apprise the opposing party of the claims and issues raised. Spring Motors Distrib., Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29-30 (App. Div. 1983), aff'd in part and rev'd in part on other grounds, 98 N.J. 555 (1985). The complaint must allege sufficient facts to give rise to a cause of action. Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998). A complaint must always be read liberally to determine whether the allegations are sufficient. Van Dam Egg Co. v. Allendale Farms, Inc., 199 N.J. Super. 452, 455-56 (App. Div. 1985). Moreover, plaintiffs should generally be permitted to amend complaints in order to properly state a claim. Lederman v. Prudential Life Ins., 385 N.J. Super. 324, 349 (App. Div.), certif. denied, 188 N.J. 353 (2006).
During oral argument, plaintiff's counsel asked the trial court for the opportunity to file a more definitive pleading, rather than dismiss the complaint on statute of limitations ground. The trial court, however, stated, "You don't get that kind of an opening. It's not that kind of an invitation where a complaint is filed and then you can argue that there were continued acts that extended the statute." We disagree.
Although the complaint is particularly vague, it alleges that plaintiff complained to Sergeant Pizzaro in March 2005 and that retaliation continued until she was transferred from the unit on April 30, 2005. Since the complaint was filed on April 17, 2007, it may well be within the two-year limitations period if conduct continued until April 30, 2005.
Plaintiff must, however, allege specific conduct that occurred within the two-year period prior to the filing of the complaint. Accordingly, we reverse the order of the trial court and remand the matter to allow plaintiff to file an amended complaint alleging with specificity the dates on which alleged incidents occurred, the identity of the actors involved in those incidents and the statutes allegedly violated. The amended complaint must include sufficient specificity so that defendants may fairly and properly defend the action.
Plaintiff must file the amended complaint within sixty days of receipt of this decision. Thereafter, defendants may again move to dismiss, if the allegations are insufficient to bring the matter within the statute of limitations.
Reversed and remanded for further proceedings in accordance with this opinion.
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