On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4977-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Pro se plaintiff Juan Paulino appeals from an order dated February 20, 2009, dismissing his complaint. We affirm.
In 2006, Paulino was convicted by a jury of first-degree aggravated sexual assault of a five-year-old girl and third-degree endangering the welfare of a child. He was sentenced to eighteen years in prison and must serve eighty-five percent of that term before he becomes eligible for parole. He filed an appeal, and we affirmed his conviction and sentence. State v. Paulino, A-4755-06T4 (App. Div. Aug. 31, 2009).
In October 2008, while imprisoned, Paulino filed a three-count civil complaint against D.M., who is the grandmother of the five-year-old victim; R.B., the child's father; and the child's grandfather, who was not otherwise identified in the complaint. Paulino charged that the three defendants conspired to cause the child to make false allegations of sexual offenses against him. He alleged that, in 2004, defendants did "corrupt [the victim], coach, and ingrain in the memory of [the victim] events that never took place and thereby cemented in [the victim]'s mind that plaintiff committed sexual assault upon [her]." Paulino also charged that, in 2005, defendants gave false information to the police about the alleged sexual offenses. He sought money damages from the defendants for the allegedly false information resulting in his conviction.
Defendants D.M. and R.B. filed an answer to Paulino's complaint and then promptly, on January 21, 2009, also filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendants contended the complaint should be dismissed on two statutory grounds: (1) that the lawsuit was filed beyond the one-year statute of limitations applicable to claims for defamation under N.J.S.A. 2A:14-3, and (2) that defendants were entitled to qualified immunity under N.J.S.A. 2A:53A-18 and -19 because Paulino was seeking damages related to his criminal conduct. The court scheduled defendants' motion to dismiss for disposition on February 20, 2009.
Paulino received the motion papers on January 31, 2009. He wrote to Judge O'Conner, who had been designated to hear pretrial matters by the court's case track assignment notice, and requested more time to respond to defendants' motion. The motion, however, was assigned to Judge Sarkisian, who signed an order dated February 20, 2009, dismissing Paulino's complaint and indicating that defendants' motion was unopposed. Paulino's opposition to the motion was dated February 9, 2009, and it was received by the court on February 23, 2009, after the date of Judge Sarkisian's order.
Paulino filed a motion for reconsideration of the February 20, 2009 order, stating that he had not been timely served with defendants' motion and including the papers he had filed in opposition to defendants' motion to dismiss. Judge Sarkisian considered all the papers that Paulino filed and denied his motion for reconsideration by order dated April 3, 2009, accompanied by a written decision. In the meantime, on March 16, 2009, Paulino had filed a notice of appeal to this court from the February 20, 2009 order.
On appeal, Paulino argues that the attorney for defendants violated ethical rules by certifying falsely that he had served the original motion papers upon Paulino by regular and certified mail on January 21, 2009, when in fact he had only used regular mail to serve the motion papers on a later date. Defendants' attorney responds that he inadvertently did not serve a second set of motion papers by certified mail, and he further states that Paulino was not prejudiced because he received the motion in time for the February 20 return date and his opposition papers were considered after he filed a motion for reconsideration.
We agree that Paulino was not harmed by late receipt of defendants' motion to dismiss because he received a full opportunity to present his opposition papers, and Judge Sarkisian considered his opposition through Paulino's motion for reconsideration.
On the merits of defendants' motion to dismiss, we have reviewed Paulino's argument in opposition, which is not contained in his appellate brief. We conclude the trial court correctly dismissed the complaint because it failed to state a claim upon which relief can be granted. R. 4:6-2(e).
To the extent that Paulino's factual allegations state a cause of action for libel or slander, the one-year statute of limitations stated in N.J.S.A. 2A:14-3 bars those claims. In his opposition papers, Paulino states that he learned of false statements and perjury of the three defendants when his criminal attorney filed a brief in September 2008 for the appeal of his conviction. But the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), is not applicable to toll the limitations period for a cause of action for defamation. Lawrence v. Bauer Publishing and Printing, 78 N.J. 371, 375-76 (1979). ...