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Tsitsoulis v. Township of Denville

December 23, 2009


The opinion of the court was delivered by: William J. Martini, U.S.D.J.





Plaintiff brought a five count Complaint, (Doc. No. 1), against the Township of Denville, the Denville Police Department, the Denville Township Board of Education (the "Board"), Patrolman Richard Byrne, Principal George Deamer, Superintendent John Sakala, and Andrew Wubbenhorst, Esq, the attorney for the Board. The Complaint alleges five counts, against all defendants,*fn3 including: Count 1 -- wrongful arrest in violation of the First and Fourth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983; Court 2 -- wrongful arrest in violation of the New Jersey Constitution; Count 3 -- malicious prosecution; Count 4 -- malicious use of process; and Count 5 -- wrongful arrest. Count 1 is the only federal claim; the remaining claims are state causes of action brought pursuant to the Court's supplemental jurisdiction. See 28 U.S.C. § 1367.

Presently before the Court is Defendant Andrew Wubbenhorst, Esq.'s Motion for Summary Judgment (the "Motion"), (Doc. No. 25). The Motion is fully briefed. See Opening Brief, (Doc. No. 25-30); Opposition Brief, (Doc. No.30-2); Reply Brief, (Doc. No. 36).

Having considered the parties' filings, federal and state constitutional and statutory law, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will GRANT the motion.


Generally, Plaintiff was divorced and was subject to a family court order (the "FMC") determining where he may pick up his child. Plaintiff made several attempts to pick up his child after school on the premises of the Valley View School. Various school officials claim that they understood the FMC to preclude Plaintiff's picking up his child on school premises. Plaintiff alleges that these school officials and Wubbenhorst*fn5 knew that the outstanding FMC did not bar Plaintiff from picking up his child at school. Plaintiff's position is that Wubbenhorst caused him to be arrested by Patrolman Byrne when he attempted to pick up his child at the school. Plaintiff was incarcerated for three days. This action seeks damages tied to the arrest and incarceration.*fn6

More specifically, on July 20, 2005, Judge Manahan issued the FMC. It stated that the "the pick-up and drop-off of the children shall be at the residence of the [ex-wife]." Tsitsoulis Cert. ¶ 84. The Board was not a party to the family court action and had no reason to be aware, unlike the parties to the family court action, that the FMC "only applied to the summer months," thereby leaving intact prior orders permitting Plaintiff to pick up his child at school. Id. ¶ 85. On September 7, 2005, Plaintiff attempted to pick up his child at school. His child was put on a bus. And Principal Deamer told Plaintiff that he was not "want[ed] on school grounds." Id. ¶ 87. On September 14, 2005, Plaintiff again came to pick up his child. Deamer called the police, who turned the child over to Plaintiff "when [the officer] saw [that the child] was willing" to go with the Plaintiff. Id. ¶ 90.

On September 15, 2009, Wubbenhorst sent Superintendent Sakala*fn7 an e-mail stating: "If [Plaintiff] returns [to the school] in the meantime [that is, before the family court judge clarifies the FMC], Advise [sic] the police that we wish to file a complaint against him for trespassing for coming onto the property without permission and taking his child in contravention to a court order. If the police won't sign it, you should on behalf of the district. They must assist you in completing the form. The Judge then has the opportunity to set bail and make a condition of bail that Mr. Tsitsoulas not return to the school." (emphasis added). It is not clear if these were intended as two separate instructions: (1) Plaintiff is not allowed on the school's property and (2) Plaintiff is not allowed to pick up his children on school property, or, alternatively, a single instruction precluding Plaintiff from coming onto school grounds to pick up his child, but not otherwise precluding his coming on school grounds for other purposes. Plaintiff also asserts that this e-mail is evidence that Wubbenhorst actually knew that the FMC did not bar Plaintiff from picking up his child at school. Id. ¶¶ 106-08. Plaintiff's position is entirely conclusory. A more restrained interpretation of the e-mail is that Wubbenhorst believed the FMC barred Plaintiff from picking up his child at school and advised the Board that they should act on that understanding or that they may act on that understanding, even prior to Judge Manahan's having had an opportunity to clarify his prior orders, or, alternatively, that Wubbenhorst did not know clearly if Plaintiff was barred by the FMC from picking up his child at school, and was willing to have Plaintiff barred from the school until such time as Judge Manahan clarified his prior orders. As explained below, although the parties brief this point extensively, this Court's opinion does not depend on who is correct in regard to this disputed fact. It is simply not material under the governing legal standard. Finally, Wubbenhorst has stated in his deposition that he was not instructing his client, the Board, to have Plaintiff arrested, but was instead advising the Board as to options it could pursue. Cf. Reply Brief 5 (noting that under New Jersey rules process can issue by a summons or an arrest warrant, and that the disputed e-mail offered advice as to the process by which a complaint may be issued).

On September 16, 2005, Plaintiff again appeared at the school, he sought to pick up his child, and was refused by Deamer who had called the police. It is disputed whether or not Plaintiff was being disruptive at this time. Compare Tsitsoulis Cert.¶ 134, with Opening Brief 7-8 (collecting citations to depositions). The police (apparently Patrolman Lucas as reported by Patrolman Weldon) told Plaintiff that "if [he] attempted to do so again [he] would be arrested." Tsitsoulis Cert. ¶ 95. Indeed, Tsistsoulis was on specific notice that he risked a trespass charge. See Tsitsoulis Dep. 293:23-25, Jan. 13, 2009.

Plaintiff returned to the school on September 21, 2005. Patrolman Byrne, acting on information from Weldon, warned Plaintiff that he should leave the grounds. Byrne reminded Plaintiff that he was put on notice on September 16 that returning to the school to pick up his child risked arrest. He was offered an opportunity to comply by leaving the premises. Plaintiff failed to comply. Byrne arrested Plaintiff for defiant trespass and resisting arrest. He was removed from the school premises and incarcerated.*fn8 Plaintiff asserts that Patrolman Byrne [was] aware that there was no basis for arresting [the Plaintiff] for trespassing. In his report of the arrest, Patrolman Byrne makes reference to the e-mail [from Wubbenhorst to the Board] and discusses its content." Tsitsoulis Cert. ¶ 110. Byrne's report does not support Plaintiff's factual claim. The report states that "[Police Officer] Weldon was advised of an email sent to the Principal of Valley View School from the School Superintendent, according to the email, Principal Deamer was advised from the attorney that Tsitsoulis is not allowed to be on school property." (Doc. No. 25-15 at 4.) The fact that Byrne stated that Weldon "was advised" of an e-mail does not mean that Weldon saw the e-mail, much less that Byrne saw it, or, that if Byrne saw it, he understood it to mean that there was no legal basis to exclude Tsitsoulis from the school premises. Plaintiff points to no deposition or other evidence supporting his implausible interpretation of the police report. Id.

Sometime during that day, the day of the arrest, Judge Manahan signed an order to show cause clarifying the position of the parties to the FMC and confirming Plaintiff's understanding. Tsitsoulis Cert. ΒΆ 101. Plaintiff's position is that his wrongful arrest (wrongful, in his view, because the family court order did ...

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