United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
JOEL SCHNEIDER, Magistrate Judge.
This matter is before the Court on the "Motion for an Order Declaring that Tort Claims Notices Have Been Timely Filed or, in the Alternative for Leave to File Late Notices of Tort Claims" ("Brief") [Doc. No. 6] filed by plaintiff Glenn Kingsbury. Plaintiff requests the Court to find that his Notice of Tort Claim ("Notice of Claim" or "Notice") forwarded to defendants Lauren Kohl, Camden County, and the Camden County Sheriff's Department on October 28, 2013 was timely filed pursuant to N.J.S.A. § 59:8-8 of the New Jersey Tort Claims Act ("NJTCA") (N.J. Stat. Ann. § 59:1-1 et seq.). Plaintiff argues that his claims against these parties did not accrue until he first learned at defendant Michael Castro's ("Castro") September 11, 2013 criminal hearing that the weapon used to kill his father belonged to defendants' employee, Lauren Kohl. The Court received the opposition of defendants Camden County and Camden County Sheriff's Department ("Opposition") [Doc. No. 11], and plaintiff's reply [Doc. No. 13]. The Court recently held oral argument. For the reasons to be discussed, plaintiff's motion is DENIED.
The present action arises out of the death of plaintiff's father, John Kingsbury, who was shot and killed on February 5, 2012, during an apparent home invasion at plaintiff's residence in Mullica Township, New Jersey. Br. at 1. Plaintiff was the first person to discover his father's body and found two spent.380 caliber shell casings located nearby. Affidavit of Michael Mattioli at 4 [Doc. No. 11-1]. An autopsy confirmed that plaintiff's father died as a result of two gunshot wounds to the head. Id . On the night of the shooting, the Atlantic County Prosecutor's Office ("ACPO") opened a homicide investigation and interviewed plaintiff and his girlfriend, Karen Drew ("Drew"). Id . While discussing possible suspects, plaintiff informed the ACPO that he owned a cheerleading event coordinating business with Drew, which generated a large amount of cash that was often kept in his home. Id. at 5. Plaintiff explained that he had "dozens of employees [and] business associates (including [defendant] Michael Castro ("Castro")) that [were] aware of the volume of cash his business generates." Id . Plaintiff told the ACPO that he also owned and operated a gymnastics business out of a facility he rented with Castro, who operated a separate martial arts gym in the same facility. Id . Plaintiff stated that he knew Castro for less than a year at the time of the shooting, but noted that Castro occasionally worked for his company. Id.
In her interviews with the ACPO, Drew voiced her suspicions of Castro's involvement in the death of plaintiff's father, noting that Castro owed plaintiff several months of back rent and "bounced" multiple checks totaling approximately $8, 000. Id . Drew's suspicions were largely predicated upon numerous calls and text messages she received from Castro questioning her about her plans to leave plaintiff's home on the day of the shooting. Id . 6-7. In Drew's opinion, "Castro texted her several times for... no real reason other than to find out if she had left the house." Id. at 7. In subsequent interviews with the ACPO, Drew mentioned that Kohl, an officer with the Camden County Sheriff's Department, served as the accountant for Castro's martial arts business. Drew claimed that she and plaintiff witnessed Kohl secure a handgun behind the front desk at plaintiff's gymnastics facility, but did not specify when this allegedly occurred. Id. at 9. Drew also explained that in the days following the shooting, plaintiff contacted Castro about the back rent he owed and was told that Kohl was "straightening it all out." Id . According to Drew, she sent multiple text messages to Kohl inquiring about the status of the back rent. Kohl eventually responded to Drew's messages on February 9, 2012, stating that her partnership with Castro had been dissolved and instructed Drew to contact Castro about the money owed. Id.
On February 19, 2012, Kohl contacted the Winslow Township Police Department to report that two of her weapons were missing from her home. When Kohl was questioned by the police about the whereabouts of her guns, she recalled last seeing the guns in her home on December 24, 2011. Although Kohl alleged that she first noticed the guns were missing on February 13, 2012, she did not file a police report until six days later.
After a year passed without any arrests, despite Castro emerging as a primary suspect, plaintiff decided to hire a private investigator to investigate his father's murder. Pl.'s Aff. at ¶¶ 6-7. Soon thereafter, on April 9, 2013, plaintiff claims he learned that Castro was arrested in Florida and charged with his father's homicide. Pl.'s Aff. at ¶ 8. According to plaintiff, it was not until Castro's pre-trial hearing on September 11, 2013, that he learned the handgun Castro allegedly used to kill his father "had been in the custody and/or control of... Lauren Kohl." Id. at ¶ 10.
On October 28, 2013, plaintiff forwarded a Notice of Claim directed to Kohl, Camden County, and the Camden County Sheriff's Department. See Br., Ex. A. Camden County responded by letter dated October 30, 2013, notifying plaintiff it would "not acknowledge receipt of [plaintiff's] claim since it was received by the County outside of the ninety (90) days permitted under the [NJTCA]." Br., Ex. C [Doc. No. 6-3].
Notwithstanding Camden County's letter, plaintiff filed the instant action on December 31, 2013, acting as executor of his father's estate. Complaint [Doc. No. 1]. Plaintiff asserts the following claims against Castro, Kohl, Camden County, and the Camden County Sheriff's Department: (1) violation of New Jersey's Civil Rights Act, N.J.S.A. § 10:6-1; (2) negligence; (3) wrongful death; and (4) survivorship. See generally Compl. In addition, plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 against all defendants except Castro. Id . In relevant part, plaintiff alleges that his father's death was directly and proximately caused by defendant's alleged failure to adequately train and supervise Kohl on the "proper and lawful use, storage, and handling of firearms." Compl. at ¶ 27.
Plaintiff filed the present motion on January 29, 2014, requesting the Court to find that his Notice of Claim was timely filed under N.J.S.A. § 59:8-8. Br. at 3. Plaintiff relies on the "discovery rule" in arguing that his cause of action against defendant did not accrue until September 11, 2013, when he discovered he had potential civil claims arising out of a link between Kohl's weapon and his father's murder. Id. at 5-6. Accordingly, plaintiff argues his Notice of Claim was properly filed within ninety days of the accrual date of his cause of action. In the alternative, plaintiff requests the Court to grant him leave to file a late Notice of Tort Claim under N.J.S.A. § 59:8-9 and asserts that "extraordinary circumstances" exist to warrant such relief. Id. at 6.
In opposition, defendant represents that the gun allegedly used by Castro was not Kohl's service weapon, nor was it issued to her by defendant. Opp'n at 3. Defendant relies on the Affidavit of Sergeant Kevin Cunane of the Camden County Sheriff's Office of Internal Affairs, who confirmed that the handgun used to kill plaintiff's father was never issued to Kohl by the Camden County Sheriff's Office. Affidavit of Kevin Cunane, ¶¶ 6-7 [Doc. No. 11-3]. Defendant argues plaintiff's Notice of Claim is untimely because his cause of action accrued on February 5, 2012, the date plaintiff's father was shot and killed. Defendant posits that "plaintiff had all the information he needed and, if not, had ample opportunity to make whatever investigation deemed necessary to confirm that [Kohl], a public employee may have been involved in the death of [plaintiff's father] as far back as the date the crime was committed." Opp'n at 8. In sum and substance, defendant argues the discovery rule is inapplicable to plaintiff's claims due to plaintiff's failure to diligently pursue the "known connections" between Castro and Kohl and "follow up on [his] long simmering suspicions." Id. at 11.
As will be discussed, plaintiff's motion is denied. The Court concludes plaintiff failed to file a timely Notice of Claim pursuant to the NJTCA. The Court also declines to apply the discovery rule to plaintiff's claims, finding that plaintiff's cause of action accrued on February 5, 2012, the date his father was killed.
Under the NJTCA, "[n]o action shall be brought against a public entity or public employee... unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this Chapter." N.J.S.A. § 59:8-3. The purpose of the NJTCA is to "reestablish the immunity of public entities while coherently ameliorating the harsh results of the [sovereign immunity] doctrine." Tripo v. Robert Wood Johnson Med. Ctr., 845 F.Supp.2d 621, 626 (D.N.J. 2012) (quoting Beauchamp v. Amedio, 751 A.2d 1047, 1049 (N.J. 2000)). The NJTCA requires the party seeking to file a claim against a public entity to serve a Notice of Claim on the public entity within ninety days of the accrual of the cause of action. See N.J.S.A. § 59:8-8(a). Generally, a failure to meet the deadline for service of notice results in the claimant being "forever barred from recovering against [the] public entity." N.J.S.A. § 59:8-8. However, the statute provides courts with limited discretion to allow the late filing of a Notice of Claim. Under N.J.S.A. § 59:8-9, the Court may allow the late filing of notice if the party makes its motion within one year of the claim accrual date ...