United States District Court, D. New Jersey
GARY A. LAX, Plaintiff,
CITY OF ATLANTIC CITY; THOMAS MONAHAN, ESQ.; CHRISTOPHER KHATAMI, ESQ.; and GILMORE & MONAHAN, P.A., Defendants.
L. COOPER LAW OFFICES OF CHERYL L. COOPER Attorneys for
JESSICA ALI MAIER MCMANIMON, SCOTLAND & BAUMAN, LLC 75
LIVINGSTON AVENUE, SUITE RICHARD D. TRENK MCMANIMON, SCOTLAND
& BAUMAN, LLC Attorneys for Defendant City of Atlantic
JENNIFER ANN GUIDEA GORDON REES LLP Attorneys for Defendants
Thomas E. Monahan, Esq.; Gilmore & Monahan, P.A.; and
Christopher Khatami, Esq.
L. HILLMAN, U.S.D.J.
action comes before the Court on motions by all
(1) Defendants Thomas E. Monahan, Esq.; Christopher Khatami,
Esq.; and Gilmore & Monahan, P.A.'s (the
“Gilmore Defendants”) motion to dismiss Plaintiff
Gary A. Lax's (“Plaintiff”) complaint (ECF
(2) Plaintiff's cross-motion for leave to file an amended
complaint (ECF No. 13); and
(3) Defendant City of Atlantic City's (“Atlantic
City”) unopposed motion to vacate the Clerk's entry
of default (ECF No. 19).
reasons discussed below, this Court will grant the Gilmore
Defendants' motion to dismiss; will deny as futile
Plaintiff's cross-motion for leave to file an amended
complaint; and will deny as moot Atlantic City's motion
to vacate the entry of default.
our recitation of the facts from Plaintiff's complaint.
action emanates from his involvement in related litigation
before this Court, City of Atlantic City v. Zemurray St.
Capital, LLC, No. 14-cv-5169
(“Zemurray”). See (ECF No. 1
(“Comp.”) at ¶¶8-15). Plaintiff alleges
that the Gilmore Defendants were retained to represent
Atlantic City in the Zemurray action and “without doing
any due diligence and/or investigation into what involvement,
if any, Gary A. Lax had in the allegations that made up the
[Zemurray] case[, ]” named Plaintiff as a defendant in
that action. (Comp. at ¶¶12-14). As a result,
Plaintiff was “forced to retain counsel and defend the
baseless allegations made” against him. (Comp. at
¶15). Plaintiff alleges that he was deposed in Zemurray
and “there was no information or facts [elicited]
linking him in any way to the litigation[.]” (Comp. at
¶20). Nonetheless, the “Gilmore Defendants refused
to dismiss Plaintiff from the case[.]” (Comp. at
¶20). According to Plaintiff, in Zemurray, Judge Robert
B. Kugler, U.S.D.J. “indicated on-the-record that there
was no basis to even name Gary A. Lax as a defendant, and
despite” such indications, Defendants “refused to
sign a stipulation of dismissal to remove [Plaintiff] from
the case.” (Comp. at ¶25). All of this, Plaintiff
alleges, caused him harm in various ways.
Subject Matter Jurisdiction
Court exercises subject matter jurisdiction pursuant to 28
U.S.C. § 1332.
Plaintiff's suggestion otherwise, the present motion to
dismiss is governed by the Federal Rules of Civil Procedure,
not the New Jersey Rules of Civil Procedure. See
Fed. R. Civ. P. 81(c)(1) (explaining that the federal rules
of civil procedure “apply to a civil action after it is
removed from a state court”).
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (citations omitted) (first citing Conley v.
Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd.
of Psychiatry & Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994); and then citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must
take three steps. First, the court must “tak[e] note of
the elements a plaintiff must plead to state a claim.”
Second, the court should identify allegations that,
“because they are no more than conclusions, are not
entitled to the assumption of truth.” Third,
“whe[n] there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)
(alterations in original) (citations omitted) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679
district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claim.” Twombly, 550 U.S. at 563 n.8
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236
(1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard
for ‘all civil actions' . . . .”); Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail in the
coffin for the ‘no set of facts' standard that
applied to federal complaints before
Twombly.”). “A motion to dismiss should
be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.'” Malleus, 641 F.3d at 563 (quoting
Twombly, 550 U.S. at 570).
The Gilmore Defendants' Motion To Dismiss
complaint contains five counts, each of which will be
addressed in turn.
Count One: Malicious Use of Process
New Jersey law, a malicious use of process claim requires
Plaintiff to plead and prove five elements: (1) a civil
action was instituted by this defendant against this
plaintiff; (2) the action was motivated by malice; (3) there
was an absence of probable cause to prosecute; (4) the action
was terminated favorably to the plaintiff; and (5) the
plaintiff has suffered a special grievance caused by the
institution of the underlying civil claim. LoBiondo v.
Schwartz, 970 A.2d 1007, 1022-23 ...