On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-7635-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Plaintiff appeals from a June 25, 2010 order of the Law Division dismissing his complaint with prejudice against defendants lawyers and law firm ("the firm defendants") for failure to state a claim based on the litigation privilege, R. 4:6-2(e), and an August 12, 2010 order denying reconsideration.*fn1
This appeal arises out of a medical malpractice claim plaintiff sought to pursue against a hospital and doctor, who were represented by the firm defendants. The "judicial defendants" each made rulings of some kind in the underlying litigation, with the exception of Frank Frascella, an employee of the Appellate Division Clerk's Office, who plaintiff misnames as an "Assignment Judge" but is included within the category of "judicial defendants."
Plaintiff first sued the hospital and doctor ("the underlying defendants") in April 2007, claiming injury arising from eye surgery in June 2005. (ESX-L-3267-07). By order of August l7, 2007, the trial court granted the underlying defendants' motion to dismiss plaintiff's complaint with prejudice for failure to file a notice of tort claim as required by the Tort Claims Act, N.J.S.A. 59:8-9. The complaint against the doctor, a hospital employee, was similarly dismissed by court order of February 29, 2008. We affirmed the latter order. Hahn v. The Univ. of Med. and Dentistry of N.J., No. A-3815-07 (App. Div. Jan. 26, 2009). The Supreme Court denied plaintiff's petition for certification. 199 N.J. 128 (2009).
In April 2008, plaintiff served a notice of tort claim, without leave of court, N.J.S.A. 59:8-9, and filed a second complaint against the underlying defendants based on the same cause of action as the prior complaint, though asserting a different legal theory. Judge Vichness granted the underlying defendants' motion to dismiss with prejudice based on plaintiff's failure to file a notice of tort claim, memorialized in an order of February 20, 2009. By order of April l7, 2009, he denied plaintiff's motion for reconsideration. In a per curiam unpublished opinion, Judges Skillman and Gilroy affirmed both orders. Hahn v. The Univ. of Med. and Dentistry of N.J., No. A-4216-08 (App. Div. March 22, 2010).
Plaintiff filed the present complaint on April 5, 2010, alleging: (1) defendant lawyers "did knowingly perjure [themselves] in an effort to have the [above referenced] case dismissed in spite of being meritorious" and defendant law firm was liable under the theory of respondeat superior; (2) Judge Vichness "did knowingly dismiss the [above referenced] case with the full knowledge that the case was meritorious"; (3) Frascella "did knowingly assign an incompetent judge to preside over" the above referenced case "in order to sabotage the court proceedings ultimately ending in the incorrect decision being made"; and (4) Judges Skillman and Gilroy "did knowingly dismiss the [above referenced] case with the full knowledge that the case was meritorious and the appeal should have been granted."
By order of May 28, 2010, the trial court granted judicial defendants' motion to dismiss with prejudice for failure to state a claim based on the doctrine of absolute judicial immunity. Following argument on the record on June 25, 2010 by plaintiff and counsel for the firm defendants, the same judge granted defendants' motion to dismiss the complaint with prejudice for failure to state a claim based on the litigation privilege that affords the firm defendants complete immunity from plaintiff's claim. The judge denied reconsideration by order of August 12, 2010. This appeal ensued.
The gist of plaintiff's argument on appeal, articulated in particular at oral argument, is that he requested and paid for a jury trial, a constitutional right, which trumped the firm defendants' right to make a motion to dismiss his complaint and the judicial defendants' right to dismiss his case prior to an adjudication on the merits by a jury.
Plaintiff's position is not founded in law. As our Supreme Court has recognized, "in civil matters the constitutional right to a jury trial is not absolute. . . . Even when requested, the failure to present evidence warranting submission of a factual issue to the jury is the functional equivalent of a waiver of the right to have a jury decide the case." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 537 (1995).
Specifically, in the context of a motion to dismiss for failure to state a claim, the law is clear that "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). See also County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009) (recognizing that where a complaint states no basis for relief and ...