May 1, 2012
KATHARINE LAI, PLAINTIFF-APPELLANT,
FENG LI; HUI-LIN WEI; BOROUGH OF HIGHLAND PARK MCA AND POLICE; JOSEPH LOMBARDI AND TOWNSHIP OF EDISON; ROBERT GOODWIN AND CITY OF NEW BRUNSWICK; RESPONDENTS-DEFENDANTS, AND CAROLINE RECORD AND DISTRICT ETHICS COMMITTEE; GILL NEILSEN, BRUCE KAPLAN AND MIDDLESEX COUNTY; MANNY GERSTEIN & DISTRICT VIII ETHICS COMMITTEE; KIMBERLY SKED, LEWIS KORNGUT AND ATTORNEY GENERAL'S OFFICE; AND PHILIP KAUFMAN. DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6768-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012
Before Judges Reisner and Hayden.
Plaintiff Katharine Lai appeals from a trial court order dated March 4, 2011, ordering her to pay $11,809 in counsel fees for having filed frivolous litigation against her former tenant, defendant Hui-Lin Wei. Plaintiff also appeals from two orders dated March 18, 2011, the first ordering her to pay $14,253.18 in counsel fees for her frivolous litigation against the Borough of Highland Park, and the second denying her motion for reconsideration of an earlier order dismissing her complaint. After reviewing the record presented to us, we affirm the orders on appeal.
Plaintiff is pro se and her brief is disorganized. However, from her submissions and those of her adversaries, we glean the following. This case began as a landlord-tenant suit filed by plaintiff in 2006 against her tenant, Ms. Wei. That suit turned on a dispute over the amount of rent due under the lease of a commercial property in Highland Park. In a written opinion dated June 21, 2006, Judge Hyland did not credit plaintiff's allegations about the terms of the lease, rejected plaintiff's claim that Ms. Wei forged portions of the lease, and dismissed plaintiff's eviction complaint. After her landlord-tenant case was dismissed, plaintiff allegedly made phone calls to Wei's attorney, Philip Kaufman, threatening to shoot Kaufman and his client; plaintiff was arrested in 2007 for making terroristic threats. In turn, she unsuccessfully requested that the Edison municipal prosecutor file charges against Wei for forgery and other offenses. When he declined to do so, plaintiff filed a pro se criminal complaint against Wei in municipal court. After a hearing on March 19, 2008, the municipal judge entered a directed verdict of not guilty, characterizing plaintiff's filing as an "abuse" of the judicial process.
Plaintiff also filed a series of complaints in federal court against Wei, Kaufman, plaintiff's own former attorney, Feng Li, the Borough of Highland Park, the New Jersey Attorney General and others. Those lawsuits were dismissed as frivolous. In a lengthy written opinion issued on June 26, 2007, Judge Debevoise found that plaintiff had repeatedly filed frivolous lawsuits despite the court's repeated imposition of sanctions for doing so. He therefore entered an order on June 26, 2007, requiring plaintiff to obtain the court's prior review and permission before filing any future federal court complaints in the District of New Jersey.
Undeterred, in April 2008, plaintiff filed a State court complaint in Morris County, against Li, Kaufman, Wei, Highland Park Borough, Edison Township, New Brunswick, and several other defendants, raising essentially the same claims, and alleging violations of her civil rights under 42 U.S.C.A. §§ 1981 and 1983, the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and assorted other statutory and common law causes of action. That complaint was transferred to Middlesex County, where Judge Bergman eventually granted defendants' summary judgment motions dismissing the complaint, and awarded counsel fees to several defendants based on plaintiff's filing of a frivolous lawsuit.*fn1
Those orders gave rise to this appeal.
Plaintiff has provided us with the transcript of Judge Bergman's oral opinion of February 4, 2011, giving his reasons for granting several of the dismissal motions. He discussed as background plaintiff's 2007 arrest for making threats and her subsequent § 1983 lawsuit against Highland Park and other defendants. The judge found no proof that plaintiff was acquitted of the charges against her, which would be a prerequisite to her cause of action for false arrest and related claims. He found she produced no proof of a policy or custom of the Borough that violated her rights, and no evidence in support of her discrimination claims. He reached the same conclusion with respect to Edison Township. He also found that plaintiff failed to file a Notice of Tort Claim with respect to any of her common law claims, N.J.S.A. 59:8-8, and she failed to file an opposing statement of material facts on the summary judgment motions, as required by Rule 4:46-2(b).
The judge also dismissed the complaint against Wei, finding that she was not a State actor or a public employee, and finding that plaintiff produced no proof of any of the elements of a negligence cause of action. Finally, he found that the City of New Brunswick and its municipal prosecutor were entitled to prosecutorial immunity; plaintiff did not file a Notice of Tort Claim against the City or its employees, and she produced no proof that they committed any constitutional violations. The judge also considered plaintiff's complaint against Kaufman, and found no proof of any cognizable claim.
Plaintiff's appellate brief characterizes this appeal as arising from the dispute with her former tenant, Wei. She once again contends that Wei forged provisions of the lease, refused to move out of the leased premises, and was responsible for plaintiff's arrest. Plaintiff contends that what she characterizes as the "fake terror threat charge" was eventually dismissed, but she provides us with no citation to the record to support that contention. On the other hand, defendants' appellate submissions provide us with record proof that she was convicted of criminal mischief.
Having considered the record and the submissions of all parties, we find that plaintiff's appellate arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
We agree with defendants that plaintiff's un-reversed criminal conviction precludes her from pursuing a § 1983 action based on that prosecution. See Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). We also find no abuse of discretion or other error in Judge Bergman's decision to asses counsel fees against plaintiff as a sanction for filing frivolous litigation. See N.J.S.A. 2A:15-59.1; R. 1:4-8. Plaintiff persists in filing essentially the same claims over and over. Despite the federal court's imposition of sanctions on plaintiff, and a federal court order aimed at preventing further frivolous filings, plaintiff made an "end-run" around the federal order by filing this lawsuit in State court. Sanctions, in the form of counsel fee awards to defendants, were appropriately imposed here.