NOT FOR PUBLICATION WITHOUT THE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-001317-15T1
CITIBANK, NA,
Plaintiff,
v.
SHERRY DEMETRO,
Defendant/Third-Party
Plaintiff-Appellant,
v.
SLATER, TENAGLIA, FRITZ & HUNT, PA,
Third-Party Defendant-
Respondent.
_____________________________________
Argued September 12, 2017 — Decided October 2, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Cape May
County, Docket No. DC-000268-15.
Christopher Bruschi argued the cause for
appellant.
Robert B. Hille argued the cause for
respondent (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Mr. Hille, of
counsel; John W. Kaveney and Brooks E. Doyne,
on the brief).
PER CURIAM
Defendant/third-party plaintiff Sherry Demetro appeals from
orders entered by the Special Civil Part judge on September 17,
2015, and September 18, 2015, dismissing with prejudice her claims
against respondent/third-party defendant the Law Firm of Slater,
Tenaglia, Fritz & Hunt, P.A. (Slater Tenaglia). Demetro contends
dismissal of her third-party complaint against Slater Tenaglia was
erroneous for the following reasons: there were genuinely disputed
material facts; Slater Tenaglia failed to provide discovery
responses; the motion judge relied on matters outside the pleading;
and leave to amend her pleading should have been granted prior to
dismissal. We agree and, therefore, reverse and remand this case
to the trial court.
On March 3, 2015, Citibank, N.A. filed a debt collection case
against Demetro in the Special Civil Part.1 Demetro filed a third-
party complaint against Slater Tenaglia alleging it failed to
cease collection efforts in violation of the Fair Debt Collection
Practices Act, 15 U.S.C.A. § 1692 (FDCPA).
On December 29, 2014, Slater Tenaglia sent a debt collection
letter to Demetro on behalf of Citibank, N.A. On January 12,
1
Demetro resolved the collection matter with Citibank, N.A.
2 A-1317-15T1
2015, Demetro contested the debt, demanded verification of the
debt and instructed Slater Tenaglia to cease collection efforts
until it mailed the debt verification in accordance with 15
U.S.C.A. § 1692(g). On January 20, 2015, Slater Tenaglia received
documents purporting to verify Demetro's debt.2 However, Slater
Tenaglia did not mail the debt verification to Demetro until March
3, 2015, or later. Slater Tenaglia electronically filed the
collection complaint against Demetro at 4:26 p.m. on March 3,
2015.
Demetro alleges that the collection complaint was drafted by
an employee of Slater Tenaglia on February 27, 2015. She argues
that preparation of the draft complaint by Slater Tenaglia
constituted continuing efforts to collect the debt in violation
of the FDCPA. Demetro also disputes the mailing date of the
verification.
Demetro sought discovery to prove her allegation that Slater
Tenaglia filed the collection action prior to mailing the debt
verification in violation of the FDCPA. Through discovery
2
Counsel for Slater Tenaglia provided this information at oral
argument in response to a question from the panel.
3 A-1317-15T1
requests, Demetro sought Slater Tenaglia's collection file.3
Slater Tenaglia did not respond to Demetro's discovery requests.
The parties disputed the date that Slater Tenaglia mailed the
debt verification to Demetro. Slater Tenaglia claimed it mailed
the debt verification to Demetro on March 2, 2015. Slater
Tenaglia's answer to the third-party complaint stated the debt
verification was mailed on March 2, 2015. However, Jasmine Garcia,
a legal assistant with Slater Tenaglia, submitted a certification
dated June 15, 2015, stating March 3, 2015 as the date Slater
Tenaglia mailed the debt verification to Demetro. Garcia's
certification explained the procedure for handling outgoing mail
at Slater Tenaglia and indicated that she deposited the envelope,
with postage, in the firm's mail room on March 3, 2015. According
to Garcia, outgoing mail from Slater Tenaglia "is collected in
bins located in the office mail room. A staff member transports
the mail once or twice a day to a mail drop box located in the
Mack Cali Centre Complex." Garcia never confirmed her deposit
of the envelope into a United States Post Office mail receptacle
prior to 4:26 p.m. on March 3 (the time/date the collection
3
We recognize that discovery is limited in Special Civil Part
actions due to the expedited nature of the cases. See R. 6:4.
However, Rule 6:4-3 permits service of interrogatories, admissions
and requests for production of documents in Special Civil Part
actions. Depositions in the Special Civil Part are allowed but
require a court order. See R. 6:4-4.
4 A-1317-15T1
complaint was electronically filed with the Special Civil Part).
Nor did any other Slater Tenaglia employee personally certify that
the debt verification was deposited into a United States Post
Office mailbox prior to the filing of the collection action.
Demetro contends that the factual dispute as to the mailing of the
debt verification was central to her claim against Slater Tenaglia,
and therefore, dismissal of the third-party complaint prior to the
exchange of discovery was improper.
We apply a de novo standard of review to a trial court's
order dismissing a complaint under Rule 4:6-2(e). See Stop & Shop
Supermarket Co. v. County of Bergen, 450 N.J. Super. 286, 290
(App. Div. 2017). Under the rule, we owe no deference to the
motion judge's conclusions. Rezem Family Assocs., LP v. Borough
of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,
208 N.J. 368 (2011). "[O]ur inquiry is limited to examining the
legal sufficiency of the facts alleged on the face of the
complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 746 (1989). "A pleading should be dismissed if it states
no basis for relief and discovery would not provide one." Rezem
Family Assocs., LP, supra, 423 N.J. Super. at 113 (citing Camden
Cty. Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl. Prot.,
320 N.J. Super. 59, 64 (App. Div. 1999)).
5 A-1317-15T1
The standard "requires an assumption that the allegations of
the pleading are true and affords the pleader all reasonable
factual inferences." Seidenberg v. Summit Bank, 348 N.J. Super.
243, 249-50 (App. Div. 2002). The court must search the pleading
"in depth and with liberality to determine whether a cause of
action can be gleaned even from an obscure statement." Id. at
250. To avoid a dismissal for failure to state a claim, a plaintiff
is not required "to prove the case but only to make allegations,
which, if proven, would constitute a valid cause of action."
Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.)
(quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App.
Div. 2001)), certif. denied, 185 N.J. 297 (2005). Ordinarily,
dismissal for failure to state a claim is without prejudice, and
the court has discretion to permit a party to amend the pleading
to allege additional facts in an effort to state a claim. See
Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App.
Div. 2009).
In this case, Demetro was deprived of discovery responsive
to her inquiry as to the date that Slater Tenaglia mailed the debt
verification. Demetro specifically requested information
concerning debt verification mailing procedures at Slater
Tenaglia. Demetro correctly noted that Garcia's certification
raised more questions than provided answers and lacked the
6 A-1317-15T1
requisite personal knowledge, in accordance with Rule 1:6-6, as
to the actual mailing of the verification in this case. Absent
production of Slater Tenaglia's collection file, Demetro had no
way to refute the mailing date. If she had discovery responses,
Demetro argues she would substantiate her claim that the debt
verification was mailed after the filing of the collection
complaint in violation of the FDCPA. Giving Demetro every
favorable inference, discovery should have been completed prior
to the judge's dismissal with prejudice of the third-party
complaint.
Demetro also filed a motion to amend her third-party complaint
based upon Slater Tenaglia's inconsistent positions identifying
the date it purportedly mailed the verification. While Demetro's
motion seeking leave to file an amended pleading was pending before
the court, Slater Tenaglia moved for dismissal of the third-party
complaint. The motion judge granted Slater Tenaglia's dismissal
motion and denied as moot Demetro's motion to amend.
Rule 4:9-1 requires that motions for leave to amend to be
granted liberally and without consideration of the ultimate merits
of the amendment. See Notte v. Merchants Mut. Ins. Co., 185 N.J.
490, 500-01 (2006). An opposed motion to amend a pleading to add
a new cause of action should be determined under the same standard
applicable to a motion to dismiss under Rule 4:6-2(e). See Maxim
7 A-1317-15T1
Sewerage Corp. v. Monmouth Ridings, 273 N.J. Super. 84, 90 (Law
Div. 1993). Because we find that the motion judge erred in
dismissing Demetro's third-party complaint pursuant to Rule 4:6-
2(e), the motion judge erred in denying as moot Demetro's motion
for leave to amend her pleading to include a claim based upon
Slater Tenaglia's inconsistencies regarding the date it mailed the
debt verification.
Lastly, Demetro contends that the motion judge improperly
relied on matters outside the pleadings in dismissing her third-
party complaint. Demetro's pleading did not reference Garcia's
certification.4 Yet, the motion judge relied on the certification
to conclude that Slater Tenaglia mailed the verification prior to
filing the complaint. Because the Garcia certification was not
referenced in Demetro's third-party complaint, the trial court was
required to treat the motion as one for summary judgment, and
Demetro should have been accorded an "opportunity to present all
material pertinent to such a motion." R. 4:6-2; see also Wang v.
Allstate Ins. Co., 125 N.J. 2, 9 (1991) (trial court properly
converted motion pursuant to Rule 4:6-2(e) into a motion for
summary judgment due to submission of documents outside the
pleadings).
4
Demetro's third-party complaint was filed in April 2015.
Garcia's certification was filed two months later.
8 A-1317-15T1
Reversed as to the dismissal for failure to state a claim and
remanded as to leave to amend. We do not retain jurisdiction.
9 A-1317-15T1
CITIBANK, NA VS. SHERRY DEMETRO VS. SLATER, TENAGLIA, FRITZ & HUNT, PA (DC-000268-15, CAPE MAY COUNTY AND STATEWIDE)
Combined Opinion