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Bustamante v. Borough of Paramus

May 7, 2010


On appeal from the Superior Court of New Jersey, Bergen County, Law Division, Docket No. L-2168-07.

The opinion of the court was delivered by: Messano, J.A.D.



Argued December 15, 2009

Before Judges Grall, Messano and LeWinn.

Plaintiff Marcello Bustamante appeals from the dismissal of his complaint with prejudice for "failure to state a claim upon which relief can be granted," Rule 4:6-2(e), and the denial of his motion to amend the complaint. We have considered the arguments raised in light of the record and applicable legal standards. We affirm the denial of plaintiff's motion to amend his complaint; we reverse the dismissal of the complaint with prejudice, and remand the matter to the trial court for further proceedings consistent with this opinion.


On the evening of January 31 and into the early morning hours of February 1, 2006, plaintiff and his friend, Konstadinos Peppas, were at Houlihan's Restaurant in Paramus. The manager of the restaurant summoned the police, claiming the men were both "heavily intoxicated[] and acting up." When police arrived, they confronted the two men. A struggle ensued and plaintiff was ultimately arrested.

On August 29, 2006, the Bergen County grand jury indicted plaintiff and Peppas for two counts of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).*fn1 The victims of the assaults were alleged to be Paramus police officers, Douglas Ehrenberg, in one count, and Craig McEllen in the other. The indictment also named Paramus police officers "R. Gleason," "C. Tsentas," and "Michael Cebulski" as those whose arrest plaintiff resisted.

During preliminary proceedings in the criminal case, plaintiff sought access to the personnel files of the five officers, indicating that he intended to assert "as a defense to the charges[,] . . . both self-defense and resistance to excessive force . . . ." On January 2, 2007, plaintiff appeared in Superior Court, and, pursuant to a plea bargain reached with the State, was prepared to plead guilty to the disorderly persons offense of resisting arrest as amended, N.J.S.A. 2C:29-2(a)(1); the other charges were to be dismissed. Plaintiff intended to apply to the Pre-Trial Intervention Program (PTI), however, and defense counsel, the prosecutor, and the judge noted that PTI was unavailable if plaintiff pled guilty to a disorderly persons offenses. See Pretrial Intervention Programs, Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 2 at 1063 (2010) ("Any defendant accused of crime shall be eligible for admission into a PTI program.") (emphasis added); see also State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) ("PTI is a diversionary program designed to 'augment the options of prosecutors in disposing of criminal matters . . . .'") (quoting State v. Brooks, 175 N.J. 215, 223 (2002) (emphasis added)).

As a result, defendant entered a guilty plea to fourth-degree resisting arrest as amended. See N.J.S.A. 2C:29-2(a)(2) ("[A] person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest."). In response to questioning by his attorney, plaintiff admitted that he had "attempted to prevent [his] lawful arrest by officers that had entered th[e] restaurant."*fn2 The judge explained that if plaintiff was "thrown out of PTI," he would be placed on probation pursuant to the plea bargain. Defendant entered the PTI program, a one-year "order of postponement" of the criminal charges was filed, plaintiff successfully completed PTI, and the indictment was dismissed on February 29, 2008.

On March 26, 2007, plaintiff filed his complaint against defendants Borough of Paramus, Police Department of the Borough of Paramus, police officers Ehrenberg, McEllen, Cebulski, Robert Gleason, and Chris Tsentas (collectively, defendants).

In the first count, plaintiff claimed defendants had committed an "assault and battery[,]" further alleging that the "attack . . . continued while [he] was handcuffed and in police custody." In count two, plaintiff alleged defendants "act[ed] under color of law" in violation of 42 U.S.C. § 1983. He sought damages and counsel fees.

Discovery ensued. On July 31, 2008, prior to the discovery end date, Cebulski moved for summary judgment claiming that he had not been present at the scene of plaintiff's arrest. The motion was supported by a document, the Paramus Police Department's "Initial General Complaint Report." Cebulski also referenced the deposition testimony of Tsentas and McEllen wherein they claimed Cebulski was not present.

On August 19, plaintiff filed opposition and cross-moved to amend the complaint. In opposition to Cebulski's motion, plaintiff cited McEllen's grand jury testimony in which he had identified Cebulski as being present. He also cited the deposition testimony of Peppas and Houlihan's manager, both of whom indicated that at least five officers responded to the restaurant. He claimed this evidence raised a factual dispute regarding Cebulski's involvement; thus, summary judgment should be denied.

In support of his motion to amend, plaintiff claimed the Initial General Complaint Report "was never previously identified during the discovery period." In that report, police officer Robert Von Schalscha was named as having been present at Houlihan's on the night of plaintiff's arrest; plaintiff's motion sought to add Von Schalscha as a defendant. Defendants opposed the motion to amend, arguing that plaintiff could have discovered Von Schalscha's name through the exercise of "due diligence," and, since the statute of limitations had now expired, the proposed amendment was time-barred.

On September 10, 2008, before these motions were heard, Ehrenberg moved to dismiss plaintiff's complaint for failure to state a claim. See R. 4:6-2(e). In essence, Ehrenberg argued that plaintiff's complaint was legally barred in light of his entry into PTI. Plaintiff opposed the motion.

On October 10, 2008, after hearing oral argument from all parties on the pending motions, the judge denied plaintiff's motion for leave to amend the complaint, concluding that plaintiff had not utilized the fictitious party rule, Rule 4:26-4, had produced "no evidence of diligent inquiry," and the statute of limitations had expired.

The judge granted Ehrenberg's motion to dismiss the complaint for failure to state a claim, citing Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed. 2d 383, 394 (1994), and other cases, the principles of which he summarized as follows:

[I]f . . . plaintiff has taken steps that are not compatible with [his] demand for remedies under the Constitution, 42 [U.S.C. §] 1983, and are not compatible with the common-law, then the plaintiff is either estopped or barred from pursuing those remedies.

The idea behind it is that if there is an impugnment [sic] . . . or the creation of something that would suggest conflicting resolutions of the underlying transaction, the Court will not allow it.

The judge reasoned that plaintiff's "entry into PTI" and his "submission to the unfavorable circumstances of PTI" barred his civil claims against defendants as a matter of law. He further determined that plaintiff's factual allegations were all contained within a "bundle of facts . . . wrapped up in and around the same sequence of events from start to finish at Houlihan's." He concluded, "it would be inconsistent for the judiciary to permit these civil claims [based upon those facts] to proceed" after plaintiff's completion of PTI.

Although he did not specifically rule on Cebulski's motion for summary judgment and no order was entered, the judge noted that he "would have denied" the motion because there were genuine issues of ...

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