JOHN FALAT, JR. VS. THE COUNTY OF HUNTERDON (L-0188-15, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2479-15T1

JOHN FALAT, JR., MICHAEL RUSSO
and DEBORAH TROUT,

Plaintiffs-Appellants,

v.

THE COUNTY OF HUNTERDON, THE OFFICE
OF THE HUNTERDON COUNTY PROSECUTOR;
GEORGE MELICK, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
WILLIAM MENNEN, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
RONALD SWOREN, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
MATTHEW HOLT, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
ERIK PETERSON, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
ROBERT WALTON, individually and
in his representative capacity
as a Hunterdon County Freeholder
and agent of the County of Hunterdon;
GAETANO DESAPIO, individually and
in his representative capacity
as a Hunterdon County Counsel
and agent of the County of Hunterdon;
KENNETH ROWE, individually and
in his representative capacity
as agent of the Office of the Hunterdon
County Prosecutor; EDMUND DEFILLIPIS,
individually and in his representative
capacity as agent of the Office of
Hunterdon County Prosecutor; CYNTHIA
YARD, individually and in her
representative capacity as Hunterdon
County Administrator and agent of
the County of Hunterdon,

Defendants-Respondents,

and

J. PATRICK BARNES, individually and
in his representative capacity as the
Hunterdon County Prosecutor;
BENNETT BARLYN, individually and in
his representative capacity as agent
of the Office of the Hunterdon County
Prosecutor; WILLIAM MCGOVERN,
individually and in his representative
capacity as agent of the Office of
the Hunterdon County Prosecutor; and
DONNA SIMON, in her individual and
representative capacities,

Defendants.
_____________________________________________

Argued May 21, 2018 – Decided July 25, 2018

Before Judges Messano, Accurso, and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
L-0188-15.

Nina Rossi argued the cause for appellants
(Law Offices of William J. Courtney, LLC,

2 A-2479-15T1
 attorneys; William J. Courtney, of counsel;
Nina Rossi, on the briefs).

Thomas B. Hanrahan argued the cause for
respondents County of Hunterdon, George
Melick, William Mennen, Ronald Sworen, Matthew
Holt, Erik Peterson, Robert Walton and Cynthia
Yard (Hanrahan Pack, LLC, attorneys; Thomas
B. Hanrahan, of counsel; Nicholas P. Milewski,
on the brief).

Walter F. Kawalec, III, argued the cause for
respondent Gaetano DeSapio, Esq. (Marshall
Dennehey Warner Coleman & Goggin, attorneys;
Howard B. Mankoff and Walter F. Kawalec, III,
on the brief).

Eric L. Harrison argued the cause for
respondents Kenneth Rowe and Edmund DeFillipis
(Methfessel & Werbel, attorneys; Eric L.
Harrison, of counsel and on the brief;
Jennifer M. Herrmann, on the brief).

PER CURIAM

In November 2007, plaintiff Deborah Trout was elected Sheriff

of Hunterdon County (the County), and she served in that office

from January 1, 2008, until December 31, 2010. At the beginning

of her term, Trout appointed plaintiff Michael Russo as

Undersheriff and plaintiff John Falat, Jr., as an investigator in

the Hunterdon County Sheriff's Office (HCSO). The HCSO previously

employed both Trout and Russo, and both had previously filed and

3 A-2479-15T1
settled litigation against the County.1

In 2010, a Hunterdon County grand jury indicted plaintiffs

for official misconduct and other crimes and issued a presentment

regarding operations at the HCSO. By the time the indictments and

presentment were released publicly in May 2010, the Office of the

Attorney General had superseded the Hunterdon County Prosecutor's

Office (HCPO), and a deputy attorney general (DAG) succeeded County

Prosecutor J. Patrick Barnes and was serving as acting prosecutor.

In August, a different DAG who was handling the prosecution of the

indictments moved to dismiss them without prejudice.

In her August 23, 2010 letter to the criminal trial judge,

the DAG stated the State's motion was "based upon legal and factual

deficiencies in the indictments," and "errors in the presentation

of these matters to the grand jury [that] have resulted in

defective indictments." The DAG also stated "incorrect

instructions . . . tainted the entire deliberative process."

Fairly read, the letter questioned both the sufficiency of the

facts adduced before the grand jury and the legal theory supporting

1
Because these appeals are from orders dismissing plaintiffs'
complaint pursuant to Rule 4:6-2, and denying their motion for
leave to file a second amended complaint, plaintiffs' version of
the facts is treated "as uncontradicted[] accord[ed] . . . all
legitimate inferences" and "accept[ed] . . . as fact" for purposes
of our review. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166
(2005).

4 A-2479-15T1
the charged crimes. The judge entered an order dismissing the

indictments without prejudice the same day.

On August 2, 2012, plaintiffs filed a complaint naming the

County and a number of public officials as defendants, including

freeholders George Melick, William Mennen, Ronald Sworen, Matthew

Holt, Erik Peterson, Robert Walton and County Administrator

Cynthia Yard (collectively, the County Defendants), County Counsel

Gaetano DeSapio, and Kenneth Rowe and Edmund DeFillipis,

investigators with the HCPO (collectively, the HCPO Defendants).2

The complaint was removed to federal court, where Judge Stanley

R. Chesler granted defendants' motions to dismiss.

In his written opinion, Judge Chesler dismissed with

prejudice several of the complaint's twenty counts. Judge Chesler

dismissed the remaining counts without prejudice, noting the

pleading "largely fail[ed] to connect . . . factual allegations

to the specific counts . . . ." He permitted plaintiffs to file

an amended complaint "that clearly spells out which individual

plaintiffs are making what legal claims against whom and set forth

specific factual allegations to support each of those claims."

Plaintiffs filed an amended complaint in federal court, and

defendants again moved to dismiss. Judge Faith S. Hochberg's

2
The complaint included other defendants who were not named in
future iterations of the pleading or were otherwise dismissed.

5 A-2479-15T1
November 21, 2014 order dismissed plaintiffs' "federal claims"

with prejudice and remanded "all remaining state law causes of

action." In her written opinion that accompanied the order, Judge

Hochberg noted that despite Judge Chesler's earlier order,

"[p]laintiffs persist[ed] in reasserting some of the[] already-

dismissed claims." Judge Hochberg refused to "revive these causes

of action," and summarized what remained extant for her

consideration:

[T]he remaining counts include: (a) free
speech claims under the First Amendment; (b)
a conspiracy claim asserted pursuant to 42
U.S.C. § 1985(3); (c) a malicious prosecution
claim under the Fourth Amendment against the
individual Defendants; and (d) state law
claims under the New Jersey Constitution, a
state law malicious prosecution claim, and a
claim under [the New Jersey Law Against
Discrimination (NJLAD)], hostile work
environment, retaliation, and constructive
discharge.

Judge Hochberg dismissed plaintiffs' First Amendment claims

as untimely, specifically rejecting their assertion that the

"continuing violation[s]" doctrine equitably tolled the two-year

statute of limitations, and concluded any specific allegations

within the statute of limitations were insufficiently pled or

otherwise insufficient as a matter of law. The judge dismissed

plaintiffs' 42 U.S.C. § 1985 conspiracy claims, finding there were

no allegations of "class-based, invidiously discriminatory

6 A-2479-15T1
animus," quoting Faylor v. Szupper, 411 F. App'x 525, 530 (3d Cir.

2011), or "an illegal agreement" among defendants. Turning to

plaintiffs' malicious prosecution claim, Judge Hochberg determined

the complaint failed to allege "a lack of probable cause sufficient

to overcome the effect of the . . . indictment . . . ," or that

defendants "initiated the criminal proceeding." The judge

declined to exercise supplemental jurisdiction over plaintiffs'

state law claims and remanded them to the Law Division.

Defendants then renewed their motions to dismiss the amended

complaint pursuant to Rule 4:6-2(e). In addition to filing

opposition, plaintiffs cross-moved seeking leave to file a

proposed 236-page second amended complaint (second amended

complaint). The second amended complaint expanded some factual

allegations, primarily by repeating the same facts in each count

of the complaint, and abandoned counts in the prior complaint

alleging federal claims and Trout's claim for "constructive

discharge." After oral arguments, the entry of interim orders, a

motion for reconsideration and further arguments, the Law Division

judge entered a series of orders on January 7, 2016 that granted

defendants' motions to dismiss the complaint with prejudice and

7 A-2479-15T1
denied plaintiffs' motion for reconsideration and cross-motion to

file the second amended complaint. This appeal followed.3

I.

A.

"Our review of the trial court's dismissal order[s] in this

context is de novo." Flinn v. Amboy Nat'l Bank, 436 N.J. Super.

274, 287 (App. Div. 2014).4 Motions to dismiss for failure to

state a claim "are judged by determining 'whether a cause of action

is "suggested" by the facts.'" Nostrame v. Santiago, 213 N.J.

109, 127 (2013) (quoting Printing Mart-Morristown v. Sharp

Electronics Corp., 116 N.J. 739, 746 (1989)). Although we must

review plaintiffs' complaint "in depth and with liberality to

ascertain whether the fundament of a cause of action may be gleaned

even from an obscure statement of claim," ibid. (quoting Printing

Mart, 116 N.J. at 746), "[a] pleading should be dismissed if it

states no basis for relief and discovery would not provide one."

Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super.

103, 113 (App. Div. 2011). "[T]he 'inquiry is limited to examining

the legal sufficiency of the facts alleged on the face of the

3
Plaintiffs' notice of appeal is limited to the January 7, 2016
orders.
4
As a result, plaintiffs' arguments about the motion judge's
obvious confusion regarding the various complaints is irrelevant.

8 A-2479-15T1
complaint.'" Nostrame, 213 N.J. at 127 (quoting Printing Mart,

116 N.J. at 746).

"A motion to dismiss pursuant to Rule 4:6-2(e) ordinarily is

granted without prejudice." Hoffman v. Hampshire Labs, Inc., 405

N.J. Super. 105, 116 (App. Div. 2009). However, when the complaint

fails to set forth "[t]he traditional articulation" of the elements

of a cause of action, no additional facts could be pled, or further

proceedings will amount only to "a mere fishing expedition,"

dismissal with prejudice is entirely appropriate. Nostrame, 213

N.J. at 128.

B.

"[T]he granting of a motion to file an amended complaint

always rests in the court's sound discretion." Notte v. Merchants

Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One

Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998)).

"[T]h[e] Court has construed Rule 4:9-1 to 'require[] that motions

for leave to amend be granted liberally,' even if the ultimate

merits of the amendment are uncertain." Prime Accounting Dept.

v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (quoting

Kernan, 154 N.J. at 456. "One exception to that rule arises when

the amendment would be 'futile,' because 'the amended claim will

nonetheless fail and, hence, allowing the amendment would be a

useless endeavor.'" Ibid. (quoting Notte, 185 N.J. at 501).

9 A-2479-15T1
 II.

Applying these standards to plaintiffs' amended complaint,

we affirm its dismissal with prejudice. We also affirm the order

denying plaintiffs' motion for reconsideration and leave to file

the second amended complaint.

A.

Trout and Russo alleged the County violated the New Jersey

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. As we

can best discern from the amended complaint, Trout alleged

discrimination and disparate treatment based upon gender (Count

One), and both plaintiffs alleged the County created a hostile

work environment (Count Two) and retaliated against them for prior

protected activity — the two previously settled lawsuits (Count

Six). In Count Eight, plaintiffs alleged Yard and DeSapio aided

and abetted the County in its discrimination and retaliation, and

in Count Nine, plaintiffs alleged the County was vicariously liable

under the doctrine of respondeat superior for actions of the

individual County Defendants.5

5
In Count Seven, Trout alleged constructive discharge. As already
noted, the proposed second amended complaint abandoned this claim,
and Trout has not made any argument addressing the dismissal of
this cause of action in her brief. An argument not briefed is
deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520,
525 n.4 (App. Div. 2008).

10 A-2479-15T1
 Claims brought under the LAD are subject to a two-year statute

of limitations. Vitale v. Schering-Plough Corp., 231 N.J. 234,

249 (2017) (citing Montells v. Haynes, 133 N.J. 282, 291-92

(1993)). "Discriminatory termination and other similar abrupt,

singular adverse employment actions that are attributable to

invidious discrimination . . . generally are immediately known

injuries, whose two year statute of limitations period commences

on the day they occur." Alexander v. Seton Hall Univ., 204 N.J.

219, 228 (2010).

"Whether a cause of action is barred by a statute of

limitations is a question of law . . . reviewed de novo." Catena

v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016) (citing

Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J. Super.

318, 325 (App. Div. 2006)). Plaintiffs filed their initial

complaint on August 2, 2012. Therefore, any discrete

discriminatory acts allegedly committed by defendants prior to

August 2, 2010, were time-barred, and plaintiffs do not contend

otherwise.

Plaintiffs seek the safe harbor of the continuing violation

doctrine, "a judicially created . . . equitable exception" to the

LAD statute of limitations. Bolinger v. Bell Atl., 330 N.J. Super.

300, 306 (App. Div. 2000). The continuing violation doctrine does

not allow the aggregation of individually actionable acts in order

11 A-2479-15T1
to avoid the statute of limitations. Roa v. Roa, 200 N.J. 555,

567 (2010).

If, however, a plaintiff alleges "a pattern or series of

acts, any one of which may not be actionable as a discrete act,

but when viewed cumulatively constitute a hostile work

environment," the cause of action accrues "on the date on which

the last act occurred." Shepherd v. Hunterdon Developmental Ctr.,

174 N.J. 1, 21 (2002) (citation omitted). As the Court explained:

[T]he continuing violation theory was
developed to allow for the aggregation of
acts, each of which, in itself, might not have
alerted the employee of the existence of a
claim, but which together show a pattern of
discrimination. In those circumstances, the
last act is said to sweep in otherwise
untimely prior non-discrete acts.

What the doctrine does not permit is the
aggregation of discrete discriminatory acts
for the purpose of reviving an untimely act
of discrimination that the victim knew or
should have known was actionable. Each such
discrete discriminatory act starts a new clock
for filing charges alleging that act.

[Roa, 200 N.J. at 569 (citation omitted).]

In the amended complaint, plaintiffs' specific post-August

2, 2010 factual allegations are: Melick sent a letter to then

Governor Chris Christie and other public officials questioning why

the Attorney General had taken over the prosecution of the

indictment; Mennen stated at a regular meeting of the freeholder

12 A-2479-15T1
board in September 2010 that although the indictment was dismissed,

the board should "administratively review" the allegations;

DeSapio and the County Defendants disclosed unspecified "personal

material relating to insurance programs . . . and [plaintiffs']

personal and family circumstance" without going into executive

session; and on unspecified dates during the "term of Trout," the

County Defendants refused to permit access to the "Sheriff's Trust

Fund," interfered with her hiring decisions, would not permit

other county departments to perform work at HCSO offices without

Yard's approval and "scrutinized, questioned and delayed"

contracts with the HCSO. Plaintiffs alleged this amounted to

disparate treatment in violation of the LAD.

Added to this list in the second amended complaint was an

allegation that in September 2010 the freeholders sought access

to the criminal investigative file as part of their decision to

administratively review the now dismissed criminal charges, and

that they discussed plaintiffs' unemployment benefits at a July

2011 public meeting later reported in a local newspaper.

However, there were no factual allegations connecting these

otherwise gender-neutral actions to Trout's LAD claims. Indeed,

the only direct allegation in either complaint regarding Trout's

gender was that upon her election in 2007, Melick referred to her

as a "b****." Not only were the allegations insufficient to

13 A-2479-15T1
overcome the two-year statute of limitations via the continuous

violation theory, they were insufficient to plead a cause of action

under the LAD in the first instance. See Aguas v. State, 220 N.J.

494, 509 (2015) (emphasis added) (holding in a gender-based LAD

hostile work environment case, a female plaintiff must demonstrate

that the complained-of conduct "(1) would not have occurred but

for [her] gender; and it was (2) severe or pervasive enough to

make a (3) reasonable woman believe that (4) the conditions of

employment are altered and the working environment is hostile or

abusive"). Russo did not attempt to allege an independent gender-

based LAD claim, nor could he. Ibid. We affirm the dismissal

with prejudice of Trout's and Russo's LAD claims in Counts One and

Two of the amended complaint.6

6
It is unnecessary to address in detail an alternative argument
advanced by the County Defendants that supported dismissal of
Trout's LAD claim, specifically that Trout was not an employee of
the County, and, therefore, she could not assert a viable LAD
claim against the County. See N.J.S.A. 10:5-12(a) (prohibiting
discriminatory practices by an "employer"); Thomas v. County of
Camden, 386 N.J. Super. 582, 594 (App. Div. 2006) (citation
omitted) ("Clearly, the LAD was intended to prohibit
discrimination in the context of an employer/employee
relationship.").

In Communications Workers of America v. Treffinger, 291 N.J.
Super. 336, 350-51 (Law Div. 1996), the court described the
statutory powers provided by the Legislature to the Sheriff, a
constitutional officer, regarding personnel decisions, and
concluded, "the Sheriff, not the County, is the exclusive employer
(footnote continued next page)

14 A-2479-15T1
 Read in the most indulgent light, the allegations in Count

Six of the amended complaint were that Trout's prior lawsuit,

making claims under the LAD and the Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and Russo's prior

CEPA suit brought resulted in retaliatory conduct by the County

Defendants' against both. See N.J.S.A. 10:5-12(d); N.J.S.A.

34:19-3.

The LAD recognizes a cause of action for retaliation.

N.J.S.A. 10:5-12(d). "When the claim arises from alleged

retaliation, the elements of the cause of action are that the

employee 'engaged in a protected activity known to the [employer,]'

the employee was 'subjected to an adverse employment decision[,]'

and there is a causal link between the protected activity and the

adverse employment action." Battaglia v. United Parcel Serv.,

Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco

Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)); see also Royster

v. N.J. State Police, 439 N.J. Super. 554, 576 (App. Div. 2015)

(defining CEPA retaliation claim as having the same elements).

(footnote continued)
and/or hiring authority for his office." Id. at 351. Moreover,
the traditional analyses utilized to consider whether an employer-
employee relationship exists between the Sheriff and the County
weigh heavily in favor of concluding the County is not the employer
of the Sheriff. See, e.g., Thomas, 386 N.J. Super. at 595-99.

15 A-2479-15T1
 The amended complaint and second amended complaint alleged

that after Trout's 2007 election, the County Defendants' and

DeSapio's words and conduct created a hostile work environment

equivalent to adverse employment action for purposes of the LAD's

anti-retaliation provision. The alleged "protected activity" was

a lawsuit Trout filed nearly a decade earlier, in 1998. In Young

v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005),

we held that in an LAD retaliatory discharge case where timing

alone was not "unusually suggestive," a plaintiff must set forth

other evidence to establish causality. As to Trout, both the

amended and second amended complaint lack facts alleging any nexus

between the 1998 lawsuit and subsequent conduct, save a single

comment attributed to Melick made in 2007 that the County

Defendants would "not . . . make it easy" for Trout because "[t]he

b**** sued us." More importantly, as already noted, the post-

August 2010 conduct alleged in both the amended and second amended

complaint independently failed to establish incidents of LAD

retaliation and are insufficient to qualify as retaliatory conduct

under the continuing violation doctrine.

Russo's prior lawsuit against the County was filed in 1995,

twelve years before Trout's election and seventeen years before

he filed this lawsuit. He fails to cite any case law supporting

the proposition that the filing of a prior CEPA lawsuit is

16 A-2479-15T1
"protected activity" that can trigger another CEPA violation.7 We

need not address this point because the amended complaint and

second amended complaint are devoid of allegations the County

Defendants took adverse employment action against Russo

personally.

Moreover, CEPA contains a one-year statute of limitations.

N.J.S.A. 34:19-5. Allegations of post-August 2, 2011 retaliatory

conduct taken against Russo personally are non-existent in both

pleadings. As a result, the retaliation claims of both Trout and

Russo in Count Six of the amended complaint were properly dismissed

and are not salvaged by the allegations in the second amended

complaint.

B.

Plaintiffs Trout and Russo argue that although Judge Hochberg

dismissed with prejudice their federal causes of action under the

United States Constitution, § 1983 and § 1985, the Law Division

judge erred by dismissing Count Four (Conspiracy in Violation of

the New Jersey Constitution), and Count Five (Violation of the New

Jersey Constitution and the New Jersey Civil Rights Act, N.J.S.A.

10:6-1 to -2 (the NJCRA)), of the amended complaint. As we can

7
We are aware of no reported case that addresses the issue,
although some of our unpublished decisions have reached differing
results.

17 A-2479-15T1
best discern, plaintiffs contend that "[a]lthough the NJCRA may,

at times, be interpreted as analogous to . . . [§] 1983, that is

certainly not always the case." Plaintiffs argue the amended

complaint and second amended complaint alleged violations of New

Jersey's Constitution and statutes, claims specifically preserved

and remanded by Judge Hochberg.

"[O]ur State Civil Rights Act is modeled off of the analogous

Federal Civil Rights Act, 42 U.S.C. § 1983, and is intended to

provide what Section 1983 does not: a remedy for the violation of

substantive rights found in our State Constitution and laws." Harz

v. Borough of Spring Lake, ___ N.J. ___, ___ (2018) (slip op. at

17) (quoting Tumpson v. Farina, 218 N.J. 450, 474 (2014)). The

NJCRA "is a means of vindicating substantive rights and is not a

source of rights itself." Gormley v. Wood-El, 218 N.J. 72, 98

(2014). "The statute of limitations for claims under the NJCRA

is two years[,]" Lapolla v. Cty. of Union, 449 N.J. Super. 288,

298 (App. Div. 2017) (citing N.J.S.A. 2A:14-2(a)), the same statute

of limitations that applied to plaintiffs' federal civil rights

claims. Freeman v. State, 347 N.J. Super. 11, 21-22 (App. Div.

2002).

Plaintiffs seemingly argue without any legal support that the

continuing violation theory salvages their NJCRA claims. Notably,

Judge Hochberg rejected the argument as it pertained to plaintiffs'

18 A-2479-15T1
federal civil rights claims. In Freeman, we rejected claims of

equitable tolling and application of the discovery rule to salvage

the plaintiffs' claims of federal civil rights violations under

admittedly different factual circumstances. Id. at 28-32.

In any event, in the absence of controlling precedent to the

contrary, Trout's and Russo's NJCRA claims are limited to

allegations that post-date August 2, 2010. We have already

synopsized above what those allegations are. They are inadequate

to state a cause of action under any of the provisions of the New

Jersey Constitution, cited only parenthetically in Count Four of

the amended complaint, or the NJCRA, cited in Count Five of the

amended complaint.

Count Three of the second amended complaint is 119 pages long

and lists the specific state statutory and constitutional

provisions that defendants allegedly violated. It too is time-

barred, except for conduct that occurred after August 2, 2010.

The allegations in the second amended complaint of post-August

2010 conduct are inadequate to state a cause of action under the

NJCRA.

Falat asserted no claim whatsoever for relief in Counts Four

and Five of the amended complaint, yet he is included in Count

Three of the second amended complaint. Having never been asserted

19 A-2479-15T1
before July 2015, Falat's claims under the NJCRA are certainly

time-barred.

C.

The one exception to this limitations analysis is plaintiffs'

claim for malicious prosecution, asserted under the common law

(Count Eleven of the amended complaint and Count Seven in the

second amended complaint), or, as to Trout and Russo, under the

NJCRA (Counts Four and Five of the amended complaint and Count

Three of the second amended complaint). This is so because the

State dismissed the indictments against plaintiffs on August 23,

2010, i.e., within two years of the filing of plaintiffs' initial

complaint.

In Camiolo v. State Farm Fire and Casualty Company, 334 F.3d

345, 362-63 (3d Cir. 2003) (citation omitted), the Third Circuit

explained the elements of malicious prosecution for purposes of §

1983:

[A] plaintiff must show that: (1) the
defendant initiated a criminal proceeding; (2)
the criminal proceeding ended in plaintiff's
favor; (3) the proceeding was initiated
without probable cause; (4) the defendants
acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the
plaintiff suffered deprivation of liberty
consistent with the concept of seizure as a
consequence of a legal proceeding.

20 A-2479-15T1
"[F]iling criminal charges without probable cause . . . is a

constitutional violation actionable under section 1983." Kirk v.

Newark, 109 N.J. 173, 185 (1988).

Plaintiffs concede, however, that "[m]alicious prosecution

under New Jersey law has developed through case law, [and] it is

not a constitutional claim as it is under federal law." As a

result, Trout's and Russo's NJCRA claims in the amended complaint

were properly dismissed and could not be legally salvaged by the

second amended complaint.

Plaintiffs alleged all defendants committed the common law

tort of malicious prosecution (Count Eleven of the amended

complaint; Count Seven of the second amended complaint). Our

Supreme Court has explained:

In order to establish a claim for malicious
prosecution, plaintiff must prove (1) that the
criminal action was instituted by the
defendant against the plaintiff, (2) that it
was actuated by malice, (3) that there was an
absence of probable cause for the proceeding,
and (4) that it was terminated favorably to
the plaintiff.

[Helmy v. City of Jersey City, 178 N.J. 183,
190 (2003) (citing Lind v. Schmid, 67 N.J.
255, 262 (1975); JEM Marketing, LLC v.
Cellular Telecomm. Indus. Ass'n, 308 N.J.
Super. 160, 172 (App. Div. 1998)).]

"Since a suit for malicious prosecution must await a favorable

termination of the criminal proceeding, the statute of limitations

21 A-2479-15T1
does not begin until such termination." Muller Fuel Oil Co. v.

Ins. Co. of N. Am., 95 N.J. Super. 564, 577 (App. Div. 1967). The

dismissal of plaintiffs' indictments were favorable outcomes that

did not occur until August 23, 2010, i.e., within two years of the

filing of the amended complaint. The malicious prosecution count

was therefore timely. We turn our attention to the other elements

of the tort, the absence of any of which would be fatal to

plaintiffs' claim. LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009)

(citations omitted).

Plaintiffs contend the amended complaint fairly sets forth a

pattern of words and deeds by which the County, County Defendants

and DeSapio initiated the criminal investigation resulting in the

indictments. They allege that as to the HCPO defendants, Rowe was

intimately involved in both the investigation and grand jury

presentation, and DeFillipis assisted in arresting Falat prior to

the return of the indictment.

The County and County Defendants argue the pleadings fail to

allege facts sufficient to demonstrate as a matter of law that

they initiated the criminal proceedings, and also contend the

HCPO's independent investigation and presentation to the grand

jury were "intervening and independent acts of law enforcement

authorities" that "insulate" them. Seidel v. Greenberg, 108 N.J.

Super. 248, 264 (Ch. Div. 1969). DeSapio contends that the

22 A-2479-15T1
complaint only alleged he provided information as requested to the

HCPO and that even if true, those allegations are insufficient as

a matter of law to prove he initiated the criminal proceedings.

The HCPO defendants argue plaintiffs failed to plead

sufficient facts demonstrating they initiated the criminal

proceedings and acted with malice and without probable cause. They

also contend plaintiffs failed to comply with the Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3, by providing timely notice of

their claim.

In her written decision, Judge Hochberg reviewed the factual

allegations in plaintiffs' amended complaint supporting their

claim that the County Defendants or DeSapio "initiated" criminal

proceedings that led to the indictments and concluded they were

insufficient as a matter of law. We agree with her analysis.

Plaintiffs need not allege one of the County Defendants or

DeSapio actually signed a criminal complaint against them, but the

first element of the tort fails "when [a] defendant merely approves

or silently acquiesces in the acts of another." Epperson v. Wal-

Mart Stores, Inc., 373 N.J. Super. 522, 531 (App. Div. 2004).

However, a plaintiff may successfully establish the first element

"by proof that defendant took 'some active part in instigating or

encouraging the prosecution' or 'advis[ing] or assist[ing] another

person to begin the proceeding, [or by] ratif[ying] it when it is

23 A-2479-15T1
begun in defendant's behalf, or [by] tak[ing] any active part in

directing or aiding the conduct of the case.'" Ibid. (quoting

Prosser and Keeton, The Law of Torts § 119 at 872 (5th ed., 1984));

see also Seidel, 108 N.J. Super. at 257 (the tort requires

"affirmative action by way of advice, encouragement, pressure,

etc., in the institution, or causing the institution, of the

prosecution or in affirmatively encouraging its continuance after

it has been instituted"). The defendant in the malicious

prosecution case must be "the proximate and efficient cause of

maliciously putting the law in motion." Seidel, 108 N.J. Super.

at 258 (quoting 54 C.J.S. Malicious Prosecution § 14 at 966); see

also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 399

(2009) (noting prosecutor's "separate, independent determination

of whether to submit the case to the grand jury and, if so, what

witnesses would be called before it" was independent of alleged

tortfeasors' conduct).

Plaintiffs do not allege the information provided by DeSapio

and the County Defendants to the HCPO was false. Beyond general

claims of interference with Trout's and Russo's operation of the

HCSO, the amended complaint specifically alleged only that DeSapio

and the County Defendants corresponded with the HCPO regarding

their complaints, provided an "illegally taken" email from Russo's

computer and leaked information to the local newspaper. The second

24 A-2479-15T1
amended complaint added little else regarding how DeSapio and the

County Defendants initiated the criminal charges, a required

element of the tort of malicious prosecution.

More importantly, whatever information was supplied,

plaintiffs do not dispute — in fact they highlight — the actions

of the prosecutor and the HCPO defendants that led to their

ultimate arrest or prosecution. In Myrick v. Resorts International

Casino & Hotel, 319 N.J. Super. 556, 559-60 (App. Div. 1999), the

plaintiff alleged the defendant casino, her employer, initiated a

malicious prosecution by reporting her innocent mistaken cashing

of another employee's paycheck to the Division of Gaming

Enforcement (DGE), which in turn caused the plaintiff's arrest on

criminal charges. Ultimately, those charges were administratively

dismissed. Id. at 562.

In affirming the motion judge's grant of summary judgment,

we concluded the casino "did not institute the prosecution of the

defendant." Id. at 563. We cited MacLaughlin v. Lehigh Valley

R.R. Co., 93 N.J.L. 263 (Sup. Ct. 1919), which "held that a company

reporting suspected criminal activity to the authorities cannot

be liable for malicious prosecution when the authorities decide

to prosecute the suspected criminals." Id. at 263-64. Although

the casino called the DGE to investigate the bank's inquiry

regarding the check, we concluded it "did not 'put the [criminal]

25 A-2479-15T1
proceedings in motion.'" Id. at 564-65 (quoting Lind, 67 N.J. at

263).

We applied a similar analysis to the plaintiff's claims

against the bank that notified the casino. Id. at 566-67. We

reasoned, "the casino defendants cannot be considered to have put

the law in motion. Certainly, then, the bank defendants, who are

one step removed from the casino defendants, could not be

considered to have done so either." Id. at 567. Here, the

allegations in the amended complaint and the second amended

complaint fail to state a cause of action against the County

Defendants and DeSapio for common law malicious prosecution.

In her written decision dismissing plaintiffs' federal § 1983

cause of action premised on malicious prosecution, Judge Hochberg

concluded the indictments "were prima facie evidence of probable

cause to prosecute," and the "presumption of [grand jury

regularity] will only be overcome by evidence that the presentment

was procured by fraud perjury or other corrupt means." (Citations

omitted). She concluded the amended complaint, which never

asserted the evidence provided to the grand jury was false, and

only stated in conclusory terms there was a lack of probable cause

supporting the indictments, was insufficient under federal

pleading standards.

26 A-2479-15T1
 Our Court has said, "[a]lthough a grand jury indictment is

prima facie evidence of probable cause to prosecute, when the

facts underlying it are disputed, the issue must be resolved by

the jury." Helmy, 178 N.J. at 191 (citing Zalewski v. Gallagher,

150 N.J. Super. 360, 367-68 (App. Div. 1977). However,

[t]he fact of a favorable termination sheds
no light on the existence of probable cause
at the time of the initial complaint; the
burden remains on the plaintiff to demonstrate
by independent proof that the criminal
complaint was filed without probable cause.

[Campione v. Adamar of New Jersey, Inc., 302
N.J. Super. 99, 120-21, (App. Div. 1997)
(citation omitted), aff'd as mod., 155 N.J.
245 (1998).]

"Particularly, '[t]he plaintiff must establish a negative, namely,

that probable cause did not exist.'" Brunson, 199 N.J. at 394

(quoting Lind, 67 N.J. at 263). Additionally, a plaintiff must

demonstrate the defendant's actions were actuated by malice, i.e.,

the "intentional doing of a wrongful act without just cause or

excuse." Id. at 395 (citations omitted).

Here, the malicious prosecution count in the amended

complaint asserted few facts regarding the specific activities of

the HCPO Defendants that demonstrated a lack of probable cause or

that their actions were actuated by malice. Most of the

allegations were regarding the County Defendants and DeSapio.

27 A-2479-15T1
 As noted, the amended complaint and the second amended

complaint stated in conclusory language that there was no probable

cause supporting the indictments. The DAG's August 23, 2010 letter

that led to the dismissal never used the phrase "lack of probable

cause," and most of the letter addressed the faulty legal theories

underpinning the indictment. The second amended complaint alleged

several additional facts regarding the HCPO Defendants' specific

conduct, but it never asserted that Rowe or DeFillipis acted

without just cause or excuse.

As a result, we conclude that the common law malicious

prosecution counts in the amended and second amended complaints

were properly dismissed.

Affirmed.

28 A-2479-15T1