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O.R. (A Student v. Rick Cave

March 10, 2011

O.R. (A STUDENT), PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
RICK CAVE, ROBBY VARGHESE, LISA CATALANO, KATHY MITCHEL, THOMAS A. SMITH, DONNA GIBBS-NINI, VICTORIA KNIEWEL (SCHOOL SUPERINTENDENT), ARTHUR DOWNS (PRINCIPAL), CHARLES RUDNICK (PRINCIPAL), DENNIS LEPOLD (PRINCIPAL), MICHAEL ZAPICCHI (PRINCIPAL), AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2256-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 16, 2011

Before Judges Axelrad, Lihotz, and J. N. Harris.

This case is the latest installment in a very long series of lawsuits arising out of plaintiff's ten-day suspension from a middle school under the auspices of the West Windsor Plainsboro Regional School District (the District) in 2004 for possession of a folding, lock-blade knife on school property. Plaintiff's father has served as his attorney. For ease of reference, we repeat the procedural history set forth in one of our recent opinions. O.R. ex rel. O.R. v. Kniewel, Nos. A-5181-07T2, A-5509-07T1, A-5583-07T2, A-1263-08T1 (App. Div. March l7, 2010), certif. denied, 203 N.J. 96 (2010) (referred to as the Consolidated Appeal):

In 2007, we rejected [O.R.]'s sixteen-point appeal relating to his adjudication of delinquency for committing an act, which if committed by an adult, would have constituted fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have while in or upon any school building, N.J.S.A. 2C:39-5(c)(2). [State ex rel.] R.O., No. A-1540-05T3 (App. Div. June l3, 2007), [certif. denied, 192 N.J. 595 (2007)]. In affirming the Family Part, we concluded that the trial court had not abused its discretion in denying defense counsel's request for broad-spectrum discovery relating to the alleged disparate treatment of students accused of weapons possession. Because [O.R.] had not established a plausible basis for a claim of selective enforcement as part of the delinquency proceedings, he was neither permitted to obtain this extraordinary discovery nor entitled to a reversal of his adjudication of delinquency on such grounds.

[In 2009] we affirmed the denial of [O.R.'s] OPRA*fn1 and common law right of access to public records claim that he pursued against the Plainsboro Police Department (PPD). In that action, [O.R.] sought a judgment to compel the PPD to produce investigative reports, narrative documents, and complaints relating to other incidents of weapons possession reported by [O.R.]'s school district from 2000 through 2006. R.O. (A Minor) v. Plainsboro Police Dept., Custodian of Records, No. A-5906-07T2 (App. Div. June l7, 2009). There, we held that the PPD records sought by [O.R.]: (l) were properly classified as criminal investigatory records, which were exempt from production under OPRA, N.J.S.A. 47:1Al.l, and (2) predominately contained juvenile records, which were therefore confidential and not subject to public inspection or copying pursuant to OPRA, N.J.A.C. l3:94-1.5(3).

[O.R.]'s father sought further remedies on his son's behalf from the Department of Education, which were twice unsuccessful.4 As part of that process before the state administrative agency, the father's discovery practices were characterized by the Commissioner of Education as "very close to constituting 'overzealous, burdensome and harassing conduct,'" but did not rise to a level that warranted sanctions. The Administrative Law Judge who initially considered the matter described [O.R.]'s father's actions as that of a "discovery juggernaut."

4This appears to have been the third affiliated OPRA and common law right to access public records action against the PPD's custodian of records. From 2004 to 2006, [O.R]'s father filed a series of requests under OPRA, seeking information related to the number and racial composition of juvenile arrests and charges filed by several Middlesex County police departments. [Id. at 5-7 (footnotes omitted).]

We then decided the Consolidated Appeal, comprised of four back-to-back appeals presented by interrelated plaintiffs. The first lawsuit arising from the suspension alleged disparate treatment, asserting putative violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. l0:5-l to -49, the New Jersey Civil Rights Act (NJCRA), N.J.S.A. l0:6-l to -2, and the Federal Civil Rights Act (§ 1983), 42 U.S.C.A. § 1983. The remaining three suits alleged violations of OPRA and the common law right of access to public records in connection with discovery in O.R.'s civil rights action. The first action was dismissed by the Law Division through summary judgment in August 2008, and the latter three cases were dismissed by the Law Division in rulings from May 5 through July 11, 2008. On March l7, 2010, we affirmed in a forty-eight page opinion. See Consolidated Appeal.

A few months later, we also affirmed the Law Division's October l3, 2009 order denying plaintiff's request for attorneys' fees arising out of an OPRA request for documents identifying various school district staff with Electronic Violence and Vandalism Reporting System (EVVRS) responsibilities and training. O.R. ex rel. O.R. v. Hutner, No. A-1268-09T1 (App. Div. June 24, 2010), certif. denied, 204 N.J. 42 (2010). The Law Division judge had entered an order on August 24, 2009, dismissing plaintiff's complaint with prejudice, finding plaintiff made "a general request for a document that didn't exist, that was probably inartfully drawn" and defendants' "response was beyond what [they] were required to do." Id. at 4-5.

On September 2, 2009, plaintiff filed the complaint in the present action, naming the District and eleven individuals identified as "Principals, School Superintendent, Information Technology Director, and other employees" of the District, and claiming defendants prejudiced the prosecution of one or more of his prior lawsuits. The first three counts alleged the tort of fraudulent concealment based on alleged incorrect statements and submissions on the part of one or more defendants and their attorney pertaining to EVVRS reports, police notification, and the District's manifestation determinations in plaintiff's prior OPRA and discrimination lawsuits. The third count additionally asserted intentional spoliation of evidence resulting from defendants' failure to provide plaintiff with records that were purportedly in storage or archived. The fourth count asserted a § 1983 claim based on the conduct asserted in the prior counts.

Defendants filed an answer, asserting specific and general denials. Defendants also asserted separate defenses, including failure to comply with the Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, litigation privilege, failure to state a claim upon which relief could be granted, res judicata and collateral estoppel, statute of limitations, and the entire controversy doctrine.

On September 30, 2009, defendants filed a notice of removal to federal court, 28 U.S.C.A. § 1441, based on federal question jurisdiction, 28 U.S.C.A. § 1331. On October l, 2009, defendants sent plaintiff a "safe harbor" letter pursuant to Rule 1:4-8(b) and F.R.C.P. 11. By letter dated October 3, 2009, plaintiff's counsel advised defense counsel "we have NO intention of withdrawing the Complaint." Following removal of the action to the United States District Court, plaintiff voluntarily dismissed the federal claim and the case was remanded to the Superior Court. On January 4, 2010, plaintiff filed an amended complaint removing the federal claim and substituting the same claim as a purported violation of the NJCRA and New Jersey Constitution.

Shortly afterwards, defendants moved for summary judgment, which was granted following oral argument on March 5, 2010. The court found the first three counts of the complaint and amended complaint sounded in tort and plaintiff failed to serve a Tort Claims notice pertaining to all defendants other than Catalano, who was not a District employee,*fn2 as required by N.J.S.A. 59:8-8; the entire controversy doctrine barred this action as plaintiff asserted or could have asserted such claims in his prior lawsuits arising from the same facts; and all conduct about which plaintiff complained was protected by the litigation privilege. The court also found plaintiff failed to state a claim for spoliation of evidence as the record was devoid of support for the assertion that defendants intentionally destroyed or concealed any evidence in the prior litigation. See Tartaglia v. UBS PaineWebber, Inc., l97 N.J. 8l, 118 (2008) (holding that to prevail on a spoliation claim, a plaintiff must prove the five elements of a fraudulent concealment claim articulated in Rosenblit v. Zimmerman, 166 N.J. 39l, 406-07 (200l), which includes that a "defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation"). Additionally, ...


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