United States District Court, D. New Jersey
Zenaida Gonzalez, as administrator, commenced this action
against the State of New Jersey Department of Children and
Families Division of Child Protection and Permanency (the
"Division"), six individual officials employed by
the Division,  Kean University, the Child Advocacy
Resource Association ("CARAS"), two CARAS
employees,  Haizel Lazala-Krohn, and Lucrecia Vega.
The claims arise from the death of Ms. Gonzalez's
daughter, Alison Chavez ("Alison"), who had been
placed in foster care. (See AC).
Division and the six individual officials employed by the
Division (collectively, the "Third-Party
Plaintiffs") brought a Third-Party Complaint against Dr.
Anita Kishen and Al 8& Jeans Children First and Unique
Day Care, Inc. ("Al & Jeans") for contribution
and indemnification under a theory of negligence. (SeeTP
before the Court is the motion of Al 8&
Jeans to dismiss the Third-Party Complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), and in the alternative to strike or sever
the Third-Party Complaint pursuant to Federal Rule of Civil
Procedure 14(a)(4). (See Al 8b Jeans Mot.) For the reasons
set forth below, those motions are denied.
Third-Party Complaint alleges the following facts. For
purposes of a Rule 12(b)(6) motion, the allegations of the
Complaint are assumed to be true. See Section II .A, infra.
Plaintiff Gonzalez alleges in the Amended Complaint that the
Defendants /Third-Party Plaintiffs-before, during, and after
the placement of the infant, Alison Chavez, in the resource
home-failed to adequately provide for Alison's safety and
failed to comply with statutory and regulatory standards
regarding the care and custody of an infant. (TP Comp. ¶
8; see generally AC). This failure allegedly caused Alison to
suffer physical abuse and neglect that ultimately resulted in
her death. (Id.).
Defendant Al 8b Jeans is the day care facility that was
responsible for providing care to Alison beginning on August
27, 2012. (TP Comp. ¶ 17). Alison died on November 8,
2012. (AC ¶ 2). Employees of Al 8b Jeans completed seven
Day Care Accident Reports for Alison, identifying diaper rash
and bruising on her body. (TP Comp. ¶¶ 18, 20).
Only one of these accident reports was provided to employees
of the Division prior to Alison's death. (Id.
Third-Party Plaintiffs allege that Al & Jeans failed to
report its suspicions of child abuse and neglect to the State
Central Registry Hotline, and therefore breached its
statutory duty under N.J.A.C. 3A:52-4.9. (Id.
¶¶ 21-24). The conduct of Al & Jeans is
therefore alleged to have been a substantial contributing
factor to any loss that might result in the assessment of
damages against the Defendants/Third-Party Plaintiffs.
[Id. ¶ 25). The Third-Party Plaintiffs assert
one count for contribution and another count for
indemnification against the Third-Party Defendants.
[Id. ¶¶ 26-29).
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if it fails to state a
claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated.
Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the
purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences
are drawn in favor of the complainant. New Jersey
Carpenters & the Trustees Thereof v. Tishman Const. Corp.
of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of [his or her] 'entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." BellAtl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, the complaint's factual allegations
must be sufficient to raise a plaintiffs right to relief
above a speculative level, so that a claim is "plausible
on its face." Id. at 570; see also West Run
Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712
F.3d 165, 169 (3d Cir. 2013). That facial-plausibility
standard is met "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcrofi v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). While
"[t]he plausibility standard is not akin to a
'probability requirement'. . . it asks for more than
a sheer possibility." Iqbal, 556 U.S. at 678.
& Jeans argues that the Third-Party Plaintiffs have
failed to state a claim because the relevant child abuse and
neglect reporting statute, N.J.A.C. § 3A: 52-4.9, does
not give rise to a private cause of action. (Al & Jeans
Mot. at 7, 10-14). The Third-Party Plaintiffs counter that
they are not asserting a private cause of action under the
New Jersey reporting statute, but instead are asserting their
claims under a theory of negligence. Al & Jeans'
alleged violation of its statutory reporting duty, they say,
is cited only as evidence of that negligence. I agree with
the Third-Party Plaintiffs that they have sufficiently stated
a claim for contribution and indemnification under a
state a claim for negligence, a plaintiff must allege the
following four elements: "'(1) a duty of care, (2) a
breach of that duty, (3) proximate cause, and (4) actual
damages.™ Townsend v. Pierre, 221 N.J. 36, 51