NEIL SEBSO VS. STATE OF NEW JERSEY (L-2920-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5225-18T3

NEIL SEBSO,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, by and
through the Bergen County
Prosecutor's Office, BERGEN
COUNTY PROSECUTOR'S OFFICE,
THE COUNTY OF BERGEN, by and
through THE BERGEN COUNTY
PROSECUTOR'S OFFICE, and
DENNIS CALO, Prosecutor of Bergen
County,

Defendants,

and

ROCKLAND COUNTY, and
ROCKLAND COUNTY DISTRICT
ATTORNEY,

Defendants-Respondents.
_______________________________

Submitted June 1, 2020 – Decided August 11, 2020
 Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2920-18.

Law Offices of Robert J. De Groot, attorneys for
appellant (Robert J. De Groot, of counsel; Oleg
Nekritin, on the brief).

Kaufman Semeraro & Leibman LLP, attorneys for
respondents (R. Scott Fahrney, Jr., on the brief).

PER CURIAM

Plaintiff Neil Sebso appeals from the Law Division's April 26, 2019, Rule

4:6-2(b) order dismissing his claims against defendants Rockland County and

the Rockland County District Attorney's Office (together, Rockland County) for

lack of jurisdiction. The complaint alleged plaintiff suffered damages when the

New York Police Department (NYPD), with the help of defendant Bergen

County Prosecutor's Office (BCPO), searched plaintiff's Fort Lee apartment and

seized approximately $111,000, which the BCPO later transferred to Rockland

County, and which plaintiff later lost through forfeiture.

On appeal, plaintiff argues that Rockland County submitted itself to New

Jersey's jurisdiction because the BCPO transferred the seized funds to Rockland

County. We find no merit to plaintiff's contention and affirm substantially for

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the reasons stated by the motion judge because plaintiff never produced any

evidence that Rockland County submitted itself to New Jersey's jurisdiction.

The facts discerned from the motion record are summarized as follows.

In March 2014, an NYPD detective contacted the BCPO for assistance in an

NYPD investigation that had been ongoing, since 2012, into plaintiff's alleged

role in an illegal gambling ring. Relying on an affidavit from a NYPD detective

that was used to secure a warrant from a New York Court, a BCPO detective

secured a New Jersey search warrant for plaintiff's home in Fort Lee.

The next day, members of the Fort Lee Police Department (FLPD), the

BCPO, and the NYPD jointly executed the search warrant at plaintiff's

residence. Approximately $111,727 was seized during the search, among other

items. The BCPO transferred those funds in 2014 to Rockland County at the

written request of the NYPD and pursuant to a June 24, 2014 authorization for

turnover issued by the Law Division. In its application for the turnover

authorization, the BCPO noted that the seized property related to a joint

investigation between the "Rockland County Investigative Resource Center . . .

and the [NYPD] Organized Crime Investigation Bureau."

In 2015, the Rockland County District Attorney's Office determined that

the seized funds "should be transferred to the District Attorney's Asset Forfeiture

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Fund" in accordance with New York law. According to the Rockland County

District Attorney's Office, no one ever came forward to claim the money. By

November 18, 2015, Rockland County deemed the funds to have been forfeited.

Almost three years later, on April 23, 2018, plaintiff filed his complaint

in this matter for conversion, negligence, and failure to make a required

disposition. The State of New Jersey, Bergen County, the BCPO, and Rockland

County all responded to the complaint with motions to dismiss under Rule 4:6-

2. Plaintiff responded to the motions with a motion to amend his complaint to

add claims for due process and civil rights violations against all defendants.

At oral argument, plaintiff consented to dismiss Bergen County from the

litigation, and the motion judge granted the State's motion to dismiss, without

prejudice. The judge denied Rockland County's motion without prejudice and

directed that "jurisdictional discovery" be completed within sixty days. The

motion judge also granted plaintiff's motion and plaintiff filed his amended

complaint.

On March 27, 2019, Rockland County filed a motion to dismiss plaintiff's

amended complaint under Rule 4:6-2(b) based on a lack of jurisdiction. Plaintiff

opposed the motion and filed a motion to compel discovery. In his opposition,

plaintiff relied on a letter, sent by the BCPO on August 1, 2017 to plaintiff's

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counsel stating "the money seized from your client was the result of an assist

which this office provided to the Rockland County District Attorney's Office.

The monies seized were turned over to that office." Plaintiff also argued that

when Rockland County received the money, it noted in its evidence/property

intake receipt that the money was being used for an "ongoing investigation," and

therefore as a participant in that investigation, it submitted itself to New Jersey's

jurisdiction.

After considering the parties' oral arguments, the motion judge granted

Rockland County's motion and denied plaintiff's motion to compel discovery.

In his oral decision, the judge concluded that New Jersey did not possess specific

jurisdiction over Rockland County because Rockland County never purposefully

availed itself of New Jersey. According to the judge, plaintiff could not

demonstrate that Rockland County asked the NYPD to turn over the seized

funds. The motion judge concluded "[t]here [was] nothing . . . to tell the [c]ourt

that Rockland availed itself by way of specific jurisdiction, such that they should

be haled into court in Bergen County to justify why they presently have [the]

money and forfeited it under the State of New York laws."

Thereafter, plaintiff and the remaining non-Rockland County defendants

entered into a stipulation of dismissal without prejudice. This appeal followed.

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 When considering a motion to dismiss a complaint based on lack of

jurisdiction, R. 4:6-2(b), we "examine whether the trial court's factual findings

are 'supported by substantial, credible evidence' in the record." Patel v.

Karnavati Am., LLC, 437 N.J. Super. 415, 423 (App. Div. 2014) (quoting

Mastondrea v. Occidental Hotels Mgmt., S.A., 391 N.J. Super. 261, 268 (App.

Div. 2007)). Whether the facts support the exercise of jurisdiction is a question

of law and is reviewed de novo. Mastondrea, 391 N.J. Super. at 268.

A plaintiff bears the burden to prove jurisdiction. Dutch Run-Mays Draft,

LLC v. Wolf Block, LLP, 450 N.J. Super. 590, 598 (App. Div. 2017). When the

motion to dismiss is made early in the litigation, a plaintiff need only

demonstrate a prima facie case of personal jurisdiction, utilizing pleadings and

affidavits. Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App.

Div. 1998).

In order to establish a prima facie showing of jurisdiction, plaintiff must

show a defendant has "sufficient contact with the forum state 'to make it

reasonable and just, according to our traditional conception of fair play and

substantial justice,'" to exercise jurisdiction. Rippon v. Smigel, 449 N.J. Super.

344, 360 (App. Div. 2017) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310,

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320 (1945)). Jurisdiction over a nonresident defendant exists in two forms:

specific and general. Jacobs, 309 N.J. Super. at 452.

Under general jurisdiction, a defendant may be sued for "virtually any

claim, even if unrelated to the defendant's contacts with the forum" provided

"the defendant's activities in [New Jersey] can be characterized as 'continuous

and systematic' contacts." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323

(1989) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 416 (1984)).

For general jurisdiction to be applicable, a defendant's activities must be

"so 'continuous and systematic' as to render [it] essentially at home in the forum

[s]tate." FDASmart, Inc. v. Dishman Pharm. & Chems. Ltd., 448 N.J. Super.

195, 202 (App. Div. 2016) (first alteration in original) (quoting Daimler AG v.

Bauman, 571 U.S. 117, 119 (2014)). A defendant's "principal place of business

and place of incorporation" generally indicates where that defendant is "at

home" and thus subject to general jurisdiction. Ibid. (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Establishing

general jurisdiction requires "extensive contacts between a defendant and a

forum." Id. at 202-03 (quoting Mische v. Bracey's Supermarket, 420 N.J. Super.

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487, 492 (App. Div. 2011)). Here, there is no dispute that New Jersey did not

have general jurisdiction over Rockland County.

Where, as here, New Jersey does not have general jurisdiction, it may

exercise specific jurisdiction "over a defendant who has 'minimum contacts' with

the state" when "the cause of action arises directly out of a defendant's contacts

with [New Jersey]." Rippon, 449 N.J. Super. at 359 (quoting Lebel, 115 N.J. at

323). Minimum contacts "focus on 'the relationship among the defendant, the

forum, and the litigation.'" Lebel, 115 N.J. at 323 (quoting Shaffer v. Heitner,

433 U.S. 186, 204 (1977)).

"[M]inimum contacts" are "satisfied so long as the contacts resulted from

the defendant's purposeful conduct and not the unilateral activities of the

plaintiff." Ibid. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297-98 (1980)). "[W]hen the defendant is not present in the forum state,

'it is essential that there be some act by which the defendant purposefully avails

[itself] of the privilege of conducting activities within [New Jersey], thus

invoking the benefit and protection of its laws,'" Baanyan Software Servs., Inc.

v. Kuncha, 433 N.J. Super. 466, 475 (App. Div. 2013) (quoting Waste Mgmt.

Inc. v. Admiral Ins., 138 N.J. 106, 120 (1994)), such that the defendant can

reasonably anticipate being sued in this State, Dutch Run, 450 N.J. Super. at

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599. The "'[p]urposeful availment' requirement ensures that a defendant will not

be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated

contacts. The question is whether the defendant's conduct and connection with

the forum State are such that he should reasonably anticipate being haled into

court there." McKesson Corp. v. Hackensack Med. Imaging, 197 N.J. 262, 277-

78 (2009) (quoting Lebel, 115 N.J. at 323-24).

Applying these core principles here, we turn to plaintiff's pleadings and

the information he submitted in opposition to Rockland County's motion to

determine if he made a prima facie showing of specific jurisdiction. In his

amended complaint, plaintiff alleged that "[t]he [BCPO] has advised that it only

seized the property upon request by the Rockland County District Attorney's

Office." However, neither of the documents that defendant submitted in

opposition to plaintiff's motion demonstrated any action taken by Rockland

County to avail itself of the privilege of doing business in New Jersey.

Moreover, assuming that such actions would establish jurisdiction, it was

the BCPO that conducted the search of plaintiff's apartment, and ultimately

seized the money that it turned over to Rockland County based upon the NYPD's

directions. There is nothing in the record to suggest that Rockland County had

anything to do with that search or seizure. Its only allegedly wrongful act was

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deeming plaintiff's property to have been abandoned and forfeited, both of which

took place solely within New York, the state, for jurisdictional purposes, of

Rockland County's principal place of business and of all its operations.

At oral argument on the motion, plaintiff's counsel asserted that

jurisdiction was established by virtue of the fact that Rockland County was the

entity that ultimately received the seized funds. According to counsel, "[t] he

evidence is that's where it wound up. It didn't come out of a vacuum. It didn't

fall out of the sky. They requested the money to go there." However, the

inference that counsel asked the motion judge to draw was insufficient to

establish jurisdiction. Plaintiff cites no authority that states otherwise.

We conclude that the motion judge correctly granted Rockland County's

motion to dismiss substantially for the reasons stated by the motion judge in his

oral decision as Rockland County had no contacts with New Jersey and it never

took any affirmative action to purposefully avail itself of New Jersey

jurisdiction.

To the extent we have not specifically addressed any of plaintiff's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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