On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-387-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Espinosa.
Plaintiff appeals from three January 23, 2009 orders (1) granting summary judgment dismissing her complaint alleging civil rights and common law claims against defendant, the City of Hoboken; (2) denying plaintiff's discovery motion and motion to strike defendant's answer; and (3) imposing sanctions pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1(a)(1) and Rule 1:4-8(b)(2) and (d)(2). Plaintiff also appeals from the March 20, 2009 order granting reimbursement of counsel fees and costs to defendant in the amount of $13,279.84. We reverse and remand.
Plaintiff's claims arise out of an alleged incident that occurred on January 28, 2006. In her complaint, plaintiff alleged that on that date, she was a passenger in a motor vehicle stopped at a traffic light in Hoboken. While waiting for the light to change, she was approached by three unidentified persons who assaulted her, causing injury to her face and nose. She received emergency medical care at Hoboken Hospital and later through her private physician. She claimed that the assaults were committed by "unidentified actors believed to be employed by Hoboken" and that defendant enabled the individual defendants identified as "Jane Doe 1," "Jane Doe 2," and "John Doe 1," "to cover up their actions" by, among other things, "stonewalling any discovery of information relating to the acts committed by the individual defendants[.]"
Prior to initiating the lawsuit, in a January 30, 2006 letter written to the Hoboken Chief of Police, plaintiff's counsel advised that it was his understanding that two police officers arrived at the scene and told plaintiff that nothing would be done about the incident. The letter sought an explanation as to how the incident was being handled, copies of all reports prepared in connection with the incident, as well as the identities of the alleged assailants and the investigating police officers.
On April 14, 2006, plaintiff's counsel filed a Notice of Claim pursuant to N.J.S.A. 59:8-4 with the Hoboken Municipal Clerk. In a letter dated April 25, to the Hudson County Prosecutor's Office, plaintiff's counsel stated that he had learned from the Chief of Police that one or more of the persons who assaulted his client may have been police officers. Counsel stated further that other officers who arrived at the scene "attempted to shield the true facts and instructed the victim and witnesses not to seek to file official reports, because to do so would place them in legal jeopardy." Counsel also expressed the belief that "those officers who attended the scene later filed false reports to shield their colleagues from the incident." Counsel requested the Prosecutor to investigate the matter. In another letter to the Chief of Police also written on April 25, counsel indicated that no information had been provided to him in accordance with his January 30 letter. Several months later, on September 27, plaintiff's counsel sent another letter to the Chief of Police indicating that "[i]t has been many months since I originally requested the identities of all actors involved in the improper assault of Luz Alvarez, and I have not received and [sic] reports." Counsel requested that "at least the names, addresses and titles of those involved in the assault" be provided to him "without further delay."
Plaintiff filed her complaint against Hoboken alleging assault and battery (Count One), negligence (Count Two), and violations of 42 U.S.C. § 1983 (Count Three). Plaintiff sought compensatory and punitive damages. Defendant filed an answer, separate defenses and a cross-claim for defense and indemnification against any co-defendant.
On March 13, 2008, plaintiff propounded a demand for the production of documents. On April 8, defendant propounded interrogatories that required plaintiff to provide answers to 111 questions. Plaintiff served her responses on December 5. On that same date, defendant served plaintiff's counsel with a request to take her oral deposition. In a December 10 letter written by another attorney within the same firm that plaintiff retained, defense counsel was advised that plaintiff would not be produced for a deposition until "all of the defendants have been identified." Plaintiff's counsel expressed the understanding that plaintiff had been requesting information about those persons known to have been involved in the incident but that no information had been provided. Counsel stated further that defendant should consider the letter as another formal request for the information sought and that "[u]ntil this is provided, it is not cost effective nor is it practical to go forward with Ms. Alvarez's deposition."
On December 10, defendant's attorney wrote to plaintiff's counsel, advising that his letter was being written "pursuant to [Rule] 1:4-8 and N.J.S.A. 2A:15-59[.1] as your complaint[s] are believed to violate both of those provisions regarding frivolous litigation" and requesting that counsel execute the "enclosed Stipulation of Dismissal with Prejudice" in order to avoid an application for sanctions. Plaintiff did not withdraw her complaint. Instead, one week later, plaintiff's counsel filed a motion to strike defendant's answer for failure to comply with discovery obligations. On December 23, defendant filed a motion to dismiss plaintiff's complaint for failure to state a claim. Defendant urged that (1) plaintiff failed to plead with specificity what actions of individual officers resulted from a policy or custom of defendant under 42 U.S.C. § 1983; (2) Hoboken was under no duty to protect individuals from harm caused by third parties; and (3) defendant was immune from liability arising out of its failure to provide police protection or its failure to arrest. On December 30, defense counsel submitted a letter memorandum in opposition to plaintiff's motion. Defense counsel asserted that (1) his firm was never served with any discovery request from plaintiff; (2) plaintiff's counsel's certification failed to include a representation that counsel had reached out to defense counsel to resolve the discovery issue prior to filing the motion; and (3) plaintiff's counsel never placed his firm on notice that there was discovery owed to plaintiff. Finally, on January 7, 2009, defense counsel filed a motion seeking sanctions.
The court considered all of the motions on January 23, and by orders entered on that same date, the court granted defendant's motion to dismiss and also granted defendant's motion for sanctions. The orders were both marked as unopposed. Defense counsel was ordered to "submit a supplemental certification for counsel fees and costs[.]" The court denied plaintiff's motion to strike defendant's answer "[b]ased upon the Court's granting defendant, Hoboken's motion to dismiss decided this same date." The present appeal followed. On May 18, plaintiff notified our court that there were no transcripts of the trial court's decision, since the "[d]ecision was made on the papers."
On appeal, plaintiff contends that the trial court committed reversible error when it failed to grant her motion to strike defendant's answer, erred in granting defendant's motion to dismiss, which the court effectively treated as a motion for summary judgment, and erred in granting the motion for sanctions and ordering plaintiff to pay attorneys' fees and costs.
Because the court's order dismissing plaintiff's complaint with prejudice disposed of all claims plaintiff filed against defendant, the motion was appealable as of right. R. 2:2-3(1)(a). It was therefore subject to Rule 1:7-4(a), which provides: "The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of ...