HEATHER GENSINGER VS. IRIS REYES (L-0125-16, 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NOT FOR PUBLICATION WITHOUT THE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-2701-18T2

HEATHER GENSINGER,

Plaintiff-Appellant,

v.

IRIS REYES, CRAIG METZ,
STATE OF NEW JERSEY,
DEPARTMENT OF HUMAN
SERVICES, CAMELIA M.
VALDES, JAY W. MCCANN,
PASSAIC PROSECUTOR'S
OFFICE, and COUNTY OF
PASSAIC,

Defendants-Respondents,

and

ADVOSERV OF
NEW JERSEY, INC.,

Defendant.
_____________________________

Submitted October 7, 2020 – Decided November 16, 2020

Before Judges Alvarez and Sumners.
 On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0125-16.

Cynthia Marie Collins, attorney for appellant (John V.
McDermott, Jr., on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondents State of New Jersey, Iris Reyes, Craig
Metz, Department Of Human Services, Camelia M.
Valdes, Jay W. McCann, and Passaic County
Prosecutor's Office (Melissa H. Raksa, Assistant
Attorney General, of counsel; Michael R. Sarno,
Deputy Attorney General, on the brief).

Paul J. Giblin, Jr., attorney for respondent County of
Passaic, joins in the brief of respondent State of New
Jersey.

PER CURIAM

Plaintiff Heather Gensinger was indicted for two counts of second-degree

theft arising from her employment at Advoserv of New Jersey (Advoserv).

Gensinger consequently filed a civil action under the New Jersey Civil Rights

Act (NJCRA), N.J.S.A. 10:6-1 to -2, and the New Jersey Tort Claims Act (TCA),

N.J.S.A. 59:1-1 to 12-3, against defendants Iris Reyes, Craig Metz, State of New

Jersey, Department of Human Services (DHS), Camelia M. Valdes, Jay W.

McCann, Passaic County Prosecutor's Office, County of Passaic, and Advoserv.

She also made claims of common law negligent training and supervision, false

A-2701-18T2
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arrest, malicious prosecution, false imprisonment, malicious abuse of

prosecution, and civil conspiracy.

After a jury acquitted Gensinger, the motion court, in response to a Rule

4:6-2(e) motion, entered an order dismissing her action as to all defendants,

including Passaic County, which did not file a motion to dismiss. We affirm the

order – with the exception of Passaic County – because there was probable cause

to indict Gensinger and, as a matter of law, her pleadings are insufficient to

sustain her allegations. We reverse and remand as to Passaic County so that the

court can issue a decision indicating why the claims against the county should

be dismissed because it did not move for dismissal of Gensinger's complaint.

I.

Gensinger's complaint reveals the following. In December 2008,

Gensinger began employment with Advoserv,1 believing she was hired as a

"Fiscal Specialist" or "Fiscal Coordinator," by the company's Heather Moyer-

Jopp. Moyer-Jopp told Gensinger that she would have to submit overtime hours

each week to the corporate office in order to be paid her annual salary despite

1
At oral argument before the motion court, it was stated that Advoserv
contracted with DHS to manage group home facilities for developmentally
challenged adults and was compensated through federal funding under DHS's
oversight.
A-2701-18T2
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not actually working those hours. Gensinger complied, and Moyer-Jopp

approved her fraudulent overtime requests each time they were submitted.

In 2009, Dawn Adler, an Advoserv corporate manager, became aware of

Gensinger's fraudulent submissions and notified Darren Blough, the State

Coordinator for the New Jersey offices and facilities of Adoserv, but neither

Alder or Blough took any action; Gensinger continued to submit fraudulent

overtime requests and receive her expected salary. In 2010, Gensinger learned

from Adler that corporate records indicated Moyer-Jopp hired her as a

"Community Living Specialist" at a lower annual salary than what she told

Gensinger. When confronted by Adler concerning Gensinger's beliefs regarding

her title and salary, Moyer-Jopp denied Gensinger's representations, indicating

she would speak to Gensinger about the situation. Moyer-Jopp, however, did

so, and Gensinger continued submitting fraudulent overtime requests and was

paid her expected salary.

In an investigation unrelated to Gensinger's compensation, Advoserv

concluded that between 2004 and 2012, Moyer-Jopp stole $227,699.89 from the

company by being paid for fictitious purchases she allegedly made on behalf of

Advoserv. Because Advoserv received a substantial amount of stolen funds

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through its contracts with DHS, it informed the agency of their investigation

results.

In response, DHS's police force began its own investigation headed by

Reyes with assistance from Metz. Reyes' reports detailing witness interviews

"listed only Moyer-Jopp as being the suspect . . . having committed [the] thefts.

Not one of . . . [her] . . . reports ever stated [Gensinger] was involved in or

responsible for, directly or indirectly, any of these thefts." In fact, neither Reyes

nor Metz ever sought to speak with Gensinger.

In February 2014, Reyes filed a complaint-warrant in municipal court

charging Gensinger with: (1) "falsif[ying] documents to show fraudulent

transactions from [Advoserv service recipients] victims['] petty cash accounts

and victims['] bank accounts for her personal monetary gain in the total of

$92,714.30[;]" (2) "falsif[ying] [Advoserv] payroll documents in order to

deceive by authorizing the submission of fraudulent time sheets in the total []

[of] $68,760.53[;]" and (3) "mak[ing] food purchases and credit card purchases

to state fraudulent unauthorized transactions while [employed by Advoserv] in

the total of $66,225.06."

Over a year later, Passaic County Assistant Prosecutor McCann, with

Reyes as the State's witness, presented the allegations against Gensinger to a

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grand jury. Gensinger was indicted on two counts of second-degree theft by

deception, alleging:

on or about 2009 until on or about August 2012 . . .
[she] did purposely obtain the property greater than
$75,000 of another; namely grant monies for the benefit
of certain disabled individuals under the care of [DHS],
by creating or reinforcing a false impression that said
funds were being used for their benefit when in fact the
funds were converted to her own use . . . .

Prior to her criminal trial, Gensinger filed a civil action against defendants

on February 29, 2016, and amended it for the first time on April 11, arising from

her indictment.2 The action was stayed pending resolution of her criminal

charge. Gensinger unsuccessfully sought on two occasions to dismiss the

indictment based on lack of probable cause.

On October 27, 2017, a jury found Gensinger not guilty of all charges.

Thereafter, her civil action was reinstated, and she was allowed to file a second

amended complaint (herein after "complaint" or "pleadings") suing:

• Reyes for violation of the NJCRA, TCA, and New Jersey
Constitution, and civil conspiracy;

• Metz for violation of the NJCRA, TCA, and New Jersey
Constitution;

• DHS for violation of the TCA and negligent supervision;

2
The record does not include copies other than the initial and first amended
complaint.
A-2701-18T2
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 • Valdes for violation of the NJCRA and TCA, and common law
negligent training and negligent supervision;

• McCann for violation of the NJCRA, TCA, and New Jersey
Constitution, and civil conspiracy;

• The Prosecutor's Office for violation of the NJCRA and TCA, and
common law negligent training and negligent supervision; and

• Passaic County for violation of the NJCRA and TCA, and common
law negligent training and negligent supervision.

Additionally, Gensinger sued all defendants for malicious prosecution, false

arrest, false imprisonment, deprivation of liberty, invasion of privacy,

intentional infliction of emotional distress, and malicious abuse of process.

Defendants, except for Passaic County, filed a Rule 4:6-2(e) motion to

dismiss Gensinger's complaint for failure to state claims upon which relief could

be granted. After considering the parties' submissions and oral argument, the

court granted the motion for reasons explained in a twenty-page statement

attached to its order. Recognizing Gensinger's concessions, the court dismissed

all claims against Valdes due to her absolute immunity as a prosecutor, and

NJCRA claims against DHS and the Prosecutor's Office, because they are not

persons under the NJCRA. Plaintiff also conceded Reyes, Metz, and McCann

are not subject to liability under the NJCRA in their official capacities, thus

those claims were dismissed. As for McCann, the court dismissed TCA,

A-2701-18T2
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NJCRA, and state constitutional claims against him because of his absolute

immunity as a prosecutor. As for Reyes and Metz, the court dismissed claims

against them under the NJCRA in their individual capacities due to qualified

immunity, and under the TCA due to absolute immunity. The court dismissed

the claim of civil conspiracy against Reyes and McCann because of insufficient

allegations in the complaint.

With respect to all defendants, claims of intentional infliction of

emotional distress, malicious abuse of process, false arrest, false imprisonment,

deprivation of liberty, invasion of privacy, common law negligent training, and

negligent supervision were dismissed because of insufficient allegations in the

complaint.

The court's order dismissed Gensinger's complaint with prejudice as to all

parties, including Passaic County, which did not file a motion to dismiss.

II.

Appellate review of a trial court's ruling on a motion to dismiss is de novo.

Watson v. New Jersey Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div.

2017) (citing Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div 2016)). Since

our "review is plenary[,] . . . we owe no deference to the trial judge's

conclusions." State ex rel. Comm'r of Transp. v. Cherry Hill Mitsubishi, Inc.,

A-2701-18T2
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439 N.J. Super. 462, 467 (App. Div. 2015) (citation omitted). In considering a

motion under Rule 4:6-2(e), courts must accept the facts asserted in the

complaint and should accord the plaintiff all favorable inferences. Watson, 453

N.J. Super. at 47. "A complaint should be dismissed for failure to state a claim

pursuant to Rule 4:6-2(e) only if 'the factual allegations are palpably insufficient

to support a claim upon which relief can be granted.'" Frederick v. Smith, 416

N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder v. State Dep't of Transp.,

221 N.J. Super. 547, 552 (App. Div. 1987)). Our inquiry "'is limited to

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

complaint.'" Green v. Morgan Prop., 215 N.J. 431, 451 (2013) (quoting Printing

Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Therefore,

the pleading must be "search[ed] . . . '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 Di Cristofaro v. Laurel Grove Mem'l

Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

For the reasons set forth below, we conclude the motion court properly

applied the standards of Rule 4:6-2(e) in dismissing Gensinger's complaint as to

all defendants except Passaic County.

A-2701-18T2
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 A.

NJCRA Claims

The NJCRA in pertinent part states:

Any person who has been deprived of . . . any
substantive rights, privileges or immunities secured by
the Constitution or laws of this State, or whose exercise
or enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by
a person acting under color of law, may bring a civil
action for damages and for injunctive or other
appropriate relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

Thus, the NJCRA provides a cause of action to any person who has been

deprived of any rights under either the federal or state constitutions by a

"person" acting under color of law. Ibid. The NJCRA, modeled after the Federal

Civil Rights Act, 42 U.S.C. § 1983, affords "a remedy for the violation of

substantive rights found in our State Constitution and laws." Brown v. State,

442 N.J. Super. 406, 425 (App. Div. 2015) (quoting Tumpson v. Farina, 218 N.J.

450, 474 (2014)). The NJCRA has been interpreted by our Supreme Court to be

analogous to § 1983; thus, our courts apply federal law's immunity doctrines to

claims arising under the NJCRA. Perez v. Zagami, LLC, 218 N.J. 202, 213-15

(2014); Gormley v. Wood-El, 218 N.J. 72, 113-15 (2014).

A-2701-18T2
10
 Prosecutors are absolutely immune from Section 1983 claims for their

actions associated with the "judicial phase of the criminal process" and, thus,

are shielded from liability for any wrongdoing allegedly committed while acting

as an advocate for the State. Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (by

"initiating a prosecution and in presenting the State's case, the prosecutor is

immune from a civil suit for damages under § 1983"); Yarris v. Cnty. of Del.,

465 F.3d 129, 137 (3d Cir. 2006).

Absolute immunity extends to a prosecutor's decision to initiate a

prosecution, any acts taken in preparation for initiation of the case, and

presentation of the State’s case. Yarris, 465 F.3d at 135 (citation omitted). The

decision to prosecute is absolutely protected "even where [the prosecutor] acts

without a good faith belief that any wrongdoing has occurred." Kulwicki v.

Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992). Courts have reasoned that a

falsely-charged defendant has other remedies available including probable cause

hearings, motions to dismiss, as well as the State’s rules for professional

responsibility. Ibid. Acts taken in preparation include the evaluation of

evidence collected by investigators and the failure to conduct an adequate

investigation before filing charges. Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993); see also Kulwicki, 969 F.2d at 1465. Relevant to this appeal, courts

A-2701-18T2
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have held prosecutors are absolutely immune from civil suit for failing to

disclose exculpatory evidence prior to trial and for using false testimony in

connection with a prosecution (both while functioning in their prosecutorial

capacity). Yarris, 465 F.3d at 137, 139.

1. McCann

Gensinger argues that her NJCRA pleadings against McCann assert he

prosecuted her despite knowing there was no legal or factual basis to do so and

failed to provide exculpatory evidence to the grand jury or to her counsel prior

to the criminal trial. Gensinger's contentions do not overcome his absolute

immunity as a prosecutor. Her pleadings do not assert that McCann ever

functioned in an administrative or investigative role, which would not afford

him absolute immunity. Her argument that McCann withheld exculpatory

evidence and allegedly using false testimony before the grand jury is also

protected because it was in his capacity as a prosecutor. Therefore, the court

properly dismissed Gensinger's claims that McCann violated her rights under

the NJCRA and our state constitution.

2. Reyes and Metz

Police officers who mistakenly arrest someone are normally afforded the

affirmative defense of qualified immunity to shield themselves "from personal

A-2701-18T2
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liability for discretionary actions taken in the course of their public

responsibilities." Brown v. State, 230 N.J. 84, 97-98 (2017). Therefore, an

officer accused of false arrest can assert qualified immunity to an NJCRA claim

if the officer's "conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Id. at

98 (quoting Morillo v. Torres, 222 N.J. 104, 116 (2015)). Said another way, "a

law enforcement officer can defend such a claim by establishing either that he

or she acted with probable cause, or, even if probable cause did not exist, that a

reasonable police officer could have believed in its existence.'" Morillo, 222

N.J. at 118-19 (2015) (quoting Kirk v. City of Newark, 109 N.J. 173, 184

(1988)). Accordingly, "probable cause is an absolute defense to . . . [claims

for] malicious prosecution [and . . .] Section 1983 claims." Wildoner v. Borough

of Ramsey, 162 N.J. 375, 389 (2000).

"[O]ur jurisprudence has held consistently that a principal component of

the probable cause standard 'is a well-grounded suspicion that a crime has been

or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State

v. Nishina, 175 N.J. 502, 515 (2003)); accord Orsatti v. N.J. State Police, 71

F.3d 480, 482-83 (3d Cir. 1995) (applying the same standard). "Probable cause

exists where the facts and circumstances within . . . [the officers'] knowledge

A-2701-18T2
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and of which they had reasonably trustworthy information [are] sufficient in

themselves to warrant a [person] of reasonable caution in the belief that an

offense has been or is being committed." Moore, 181 N.J. at 46 (quoting

Schneider v. Simonini, 163 N.J. 336, 361 (2000) (first and second alterations in

original)). "[A] grand jury indictment is prima facie evidence of probable cause

to prosecute." Helmy v. City of Jersey City, 178 N.J. 183, 191 (2003) (citations

omitted).

Gensinger contends on appeal the record is incomplete and she should be

allowed to prove her pleadings. We disagree. We are satisfied Reyes and Metz

had probable cause to arrest and file a complaint-warrant against Gensinger

alleging she took funds belonging to Advoserv’s clients by submitting

fraudulent timesheets. Her admission that she submitted fraudulent overtime

requests would make a reasonable police officer believe probable cause existed.

Her explanation that her supervisor directed and approved her submissions

thereby giving her "apparent authority" is not a legal defense to the criminal

charge of theft by deception. Gensinger cites no case law in support.

Moreover, Gensinger's unsuccessful efforts to dismiss the charges due to

lack of probable cause prior to the favorable jury verdict demonstrate Reyes and

Metz had reason to believe she committed a crime of theft by deception.

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Gensinger is estopped from relitigating the issue. See Tarus v. Borough of Pine

Hill, 189 N.J. 497, 521 (2007) ("We conclude that plaintiff is estopped from

relitigating his contention that defendants lacked probable cause for arrest

because that issue was 'actually determined in a prior action'") (quoting State v.

Gonzalez, 75 N.J. 181, 186 (1977)). Therefore, Reyes and Metz are protected

under qualified immunity and the NJCRA claims against them were correctly

dismissed.

B.

TCA Claims

Under the TCA, "[a] public employee is not liable if he [or she] acts in

good faith in the execution or enforcement of any law[,]" but "[n]othing in this

section exonerates a public employee from liability for false arrest or false

imprisonment." N.J.S.A. 59:3-3. The TCA also extends immunity to a public

employee "for injury caused by his [or her] instituting or prosecuting any

judicial or administrative proceeding within the scope of his [or her]

employment." N.J.S.A. 59:3-8. However, nothing in the TCA will "exonerate

a public employee from liability if it is established that his [or her] conduct was

outside the scope of his [or her] employment or constituted a crime, actual fraud,

actual malice or willful misconduct." N.J.S.A. 59:3-14(a).

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 Our Supreme Court has instructed how the good faith standard is met. In

Alston v. City of Camden, 168 N.J. 170, 186 (2001), the Court held "[a] public

employee either must demonstrate 'objective reasonableness' or that he [or she]

behaved with 'subjective good faith.'" (quoting Fielder v. Stonack, 141 N.J. 101,

132 (1995)). "The burden of proof is upon the employee, who must prove either

of those components in order for the good faith immunity to attach." Toto v.

Ensuar, 196 N.J. 134, 146 (2008) (citing Alston, 168 N.J. at 186).

Gensinger argues that she proved there was no probable cause that she

committed theft by deception, and that despite the lack of probable cause, Reyes,

Metz, and McCann willfully pursued the charges against her. Her complaint

asserts no facts supporting her allegations that Reyes, Metz, or McCann

committed acts of fraud, malice, or willful misconduct. Her allegations depict

the three individual defendants acting within the scope of their employment.

Because there was evidence invalidating the charges against her, Gensinger

implies they could have only been acting with malice. However, her failure to

assert specific malicious acts warrants dismissal of her TCA claims. See Harlow

v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (holding "bare allegations of malice

should not suffice to subject government officials either to the costs of trial or

to the burdens of broad-reaching discovery"). There is no basis in law to read

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into her pleadings causes of action that are not pled. See Bombace v. City of

Newark, 125 N.J. 361, 372 (1991) (recognizing the TCA is to "reestablish a

system in which immunity is the rule, and liability the exception"). Moreover,

as noted above, ample probable cause existed. Accordingly, the TCA claims

against Reyes, Metz, Valdes, McCann, DHS, and the Prosecutor's Office were

properly dismissed.

C.

Intentional Infliction of Emotional Distress Claims

To prove intentional infliction of emotional distress, a plaintiff must

show:

(1) defendant acted intentionally; (2) defendant's
conduct was "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community;" (3) defendant's
actions proximately caused him [or her] emotional
distress; and (4) the emotional distress was "so severe
that no reasonable [person] could be expected to endure
it."

[Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div.
2010) (second alteration in original) (quoting Buckley
v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)).]

We have described the second required element "as an 'elevated threshold'

that is satisfied only in extreme cases." Ingraham v. Ortho-McNeil Pharm., 422

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N.J. Super. 12, 21 (App. Div. 2011) (quoting Griffin v. Tops Appliance City,

Inc., 337 N.J. Super. 15, 23 (App. Div. 2001)). "A court determines whether

outrageous conduct could possibly be found as a matter of law based on the

facts, while a jury determines if in fact that conduct was outrageous." G.D. v.

Kenny, 411 N.J. Super. 176, 194 (App. Div. 2009) (citing Taylor v. Metzger,

152 N.J. 490, 509-10 (1998)); see also Buckley v. Trenton, 111 N.J. at 367.

We conclude, as the motion judge did, that Gensinger failed to plead

defendants committed the requisite extreme and outrageous conduct to support

a claim of intentional infliction of emotional distress. Simply alleging

defendants prosecuted her is insufficient; it does not satisfy the "extreme and

outrageous" standard. And, as mentioned, there was probable cause for Reyes,

Metz and McCann to determine Gensinger committed a crime and prosecute her

based on their respective conclusions. Therefore, it was correct to dismiss

Gensinger's intentional infliction of emotional distress claims against them.

D.

Malicious Abuse of Process

We have recognized:

The gist of the tort of malicious abuse of process is not
commencing an action without justification . . . . [I]t is
the misuse, or "misapplying process justified in itself
for an end other than that which it was designed to

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 accomplish. The purpose for which process is used,
once it is issued, is the only thing of importance."

[Baglini v. Lauletta, 338 N.J. Super. 282, 293 (App.
Div. 2001) (quoting Prosser & Keaton on Torts § 121
at 897 (5th ed. 1984)).]

"[B]asic to [a cause of action for] malicious abuse of process is the

requirement that the [party] perform 'further acts' after the issuance of process

'which represent the perversion or abuse of the legitimate purposes of that

process.'" Id. at 294 (quoting Penwag Prop. Co., Inc. v. Landau, 148 N.J. Super.

493, 499 (App. Div. 1997), aff'd, 76 N.J. 595 (1978)). Further acts that may

constitute malicious abuse of process may include ". . . arrest of the person and

criminal prosecution [.]" Ibid. (quoting Prosser & Keeton on Torts, § 121 at 899

(footnotes omitted)).

Gensinger argues her pleadings establish defendants abused their powers

by instituting and prosecuting theft charges against her. We disagree.

Gensinger's complaint does not allege further acts of misuse of process beyond

merely asserting there was an abuse of the grand jury process. She posits no

claim indicating defendants' ulterior abusive purpose for prosecuting her

especially considering she admitted submitting fraudulent overtime. Because

the complaint failed to assert a claim for malicious abuse of process as a matter

of law, the claim was properly dismissed.

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 E.

Civil Conspiracy

Our Supreme Court described a civil conspiracy as

a combination of two or more persons acting in concert
to commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against
or injury upon another, and an overt act that results in
damage.

[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177
(2005) (quoting Morgan v. Union Cty. Bd. of Chosen
Freeholders, 268 N.J. Super. 337, 364 (App. Div.
1993)).]

In order to establish conspiracy, one must show "'a single plan, the

essential nature and general scope of which [was] known to each person who is

to be held responsible for its consequences.'" Morgan, 268 N.J. Super. at 365

(alteration in original) (quoting Hampton v. Hanrahan, 600 F.2d 600, 621 (7th

Cir. 1979), rev'd in part on other grounds, Hanrahan v. Hampton, 446 U.S. 754

(1980)). Accordingly, a civil conspiracy exists where the purported conspirator

understood "the general objectives of the scheme, accept[ed] them, and agree[d],

either explicitly or implicitly, to do [their] part to further them." Banco Popular

N. Am., 184 N.J. at 177 (quoting Jones v. City of Chicago, 856 F.2d 985, 992

(7th Cir. 1988)). Notably, the "gist of the claim is not the unlawful agreement,

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'but the underlying wrong which, absent the conspiracy, would give a right of

action.'" Id. at 177-78 (quoting Morgan, 268 N.J. Super. at 364).

Gensinger's complaint asserts Reyes and McCann unlawfully agreed to

pursue charges against her when there was no evidence to support them.

However, her complaint is devoid of any factual allegations suggesting Reyes

and McCann conspired against her. It is insufficient to merely assert that they

knew she committed no wrongdoing and yet agreed to prosecute charges against

her. Thus, the claim was properly dismissed.

III.

The motion court's order that "[p]laintiff's [c]omplaint is dismissed with

prejudice," together with its written decision that claims against the county are

dismissed, suggests that dismissal of the complaint was also granted in the

county's favor. However, Passaic County did not file a motion to dismiss

Gensinger's complaint, and the court failed to mention why it was taking such

sua sponte action. See Trautwein v. Bozzo, 39 N.J. Super. 267, 268 (App. Div.

1956) (holding trial courts are permitted to invoke the doctrine sua spont e to

further the interests of justice and public policy). Hence, we remand for the

court to set forth its reasons for taking such action. See R. 1:7-4(a) (providing

"[t]he court shall, by an opinion or memorandum decision, either written or oral,

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find the facts and state its conclusions of law thereon . . . on every motion

decided by a written order that is appealable as of right").

Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.

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