LAX v. CITY OF ATLANTIC CITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GARY A. LAX, 1:19-cv-7043-NLH-AMD

Plaintiff, OPINION

v.

CITY OF ATLANTIC CITY; THOMAS

MONAHAN, ESQ.; CHRISTOPHER

KHATAMI, ESQ.; and GILMORE &

MONAHAN, P.A.,

Defendants.

APPEARANCES:

CHERYL L. COOPER

LAW OFFICES OF CHERYL L. COOPER

342 EGG HARBOR ROAD, SUITE A-1

SEWELL, NEW JERSEY 08080

Attorneys for Plaintiff.

JESSICA ALI MAIER

MCMANIMON, SCOTLAND & BAUMAN, LLC

75 LIVINGSTON AVENUE, SUITE 201

ROSELAND, NEW JERSEY 07068

RICHARD D. TRENK

MCMANIMON, SCOTLAND & BAUMAN, LLC

75 LIVINGSTON AVENUE, SUITE 201

ROSELAND, NEW JERSEY 07068

Attorneys for Defendant City of Atlantic City.

JENNIFER ANN GUIDEA

GORDON REES LLP

18 COLUMBIA TURNPIKE

FLORHAM PARK, NJ 07932

Attorneys for Defendants Thomas E. Monahan, Esq.; Gilmore &

Monahan, P.A.; and Christopher Khatami, Esq.

HILLMAN, District Judge

This action1 comes before the Court on motions by all

parties:

(1) Defendants Thomas E. Monahan, Esq.; Christopher Khatami,

Esq.; and Gilmore & Monahan, P.A.’s (the “Gilmore

Defendants”) motion to dismiss Plaintiff Gary A. Lax’s

(“Plaintiff”) complaint (ECF No. 9);

(2) Plaintiff’s cross-motion for leave to file an amended

complaint (ECF No. 13); and

(3) Defendant City of Atlantic City’s (“Atlantic City”)

unopposed motion to vacate the Clerk’s entry of default

(ECF No. 19).

For the reasons discussed below, this Court will grant the

Gilmore Defendants’ motion to dismiss; will deny as futile

Plaintiff’s cross-motion for leave to file an amended complaint;

and will deny as moot Atlantic City’s motion to vacate the entry

of default.2

1 This action is related to another action, Docket No. 19-cv-

7036, filed by Michael J. Lax, arising out of the same events at

issue here and naming these same Defendants (the “7036 Action”).

The 7036 Action presents nearly identical pleadings and motions

as are presented here, replacing Plaintiff Gary Lax with

plaintiff Michael Lax. The Court will address the 7036 Action

by way of separate Opinion and Order but notes the near

identical nature of these actions.

2 The Court refers collectively to all defendants herein as

“Defendants[.]”

BACKGROUND

We take our recitation of the facts from Plaintiff’s

complaint.

Plaintiff’s action emanates from his involvement in related

litigation before this Court, City of Atlantic City v. Zemurray

St. Capital, LLC, No. 14-cv-5169 (“Zemurray”).3 See (ECF No. 1

(“Comp.”) at ¶¶8-15). Plaintiff alleges that the Gilmore

Defendants were retained to represent Atlantic City in the

Zemurray action and “without doing any due diligence and/or

investigation into what involvement, if any, Gary A. Lax had in

the allegations that made up the [Zemurray] case[,]” named

Plaintiff as a defendant in that action. (Comp. at ¶¶12-14).

As a result, Plaintiff was “forced to retain counsel and defend

the baseless allegations made” against him. (Comp. at ¶15).

Plaintiff alleges that he was deposed in Zemurray and “there was

no information or facts [elicited] linking him in any way to the

litigation[.]” (Comp. at ¶20). Nonetheless, the “Gilmore

Defendants refused to dismiss Plaintiff from the case[.]”

(Comp. at ¶20). According to Plaintiff, in Zemurray, Judge

3 Plaintiff does not explain or otherwise plead which portions of

the Zemurray action are particularly relevant to the present

litigation. Moreover, because the Court writes primarily for

the benefit of the parties, and because all parties were

involved in the Zemurray action, the full facts underlying the

Zemurray action will not be discussed.

Robert B. Kugler, U.S.D.J. “indicated on-the-record that there

was no basis to even name Gary A. Lax as a defendant, and

despite” such indications, Defendants “refused to sign a

stipulation of dismissal to remove [Plaintiff] from the case.”

(Comp. at ¶25). All of this, Plaintiff alleges, caused him harm

in various ways.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1332.4

II. Legal Standard

Despite Plaintiff’s suggestion otherwise, the present

motion to dismiss is governed by the Federal Rules of Civil

Procedure, not the New Jersey Rules of Civil Procedure. See

Fed. R. Civ. P. 81(c)(1) (explaining that the federal rules of

civil procedure “apply to a civil action after it is removed

from a state court”).

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

4 While Plaintiff’s complaint does not adequately plead the

citizenship of any party, the parties have executed a Joint

Certification of Citizenship representing that complete

diversity exists. See (ECF No. 17).

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a

court must take three steps. First, the court must

“tak[e] note of the elements a plaintiff must plead to

state a claim.” Second, the court should identify

allegations that, “because they are no more than

conclusions, are not entitled to the assumption of

truth.” Third, “whe[n] there are well-pleaded factual

allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an

entitlement for relief.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations

in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 664, 675, 679 (2009)).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

ANALYSIS

I. The Gilmore Defendants’ Motion To Dismiss

Plaintiff’s complaint contains five counts, each of which

will be addressed in turn.

A. Count One: Malicious Use of Process

Under New Jersey law, a malicious use of process claim

requires Plaintiff to plead and prove five elements: (1) a civil

action was instituted by this defendant against this plaintiff;

(2) the action was motivated by malice; (3) there was an absence

of probable cause to prosecute; (4) the action was terminated

favorably to the plaintiff; and (5) the plaintiff has suffered a

special grievance caused by the institution of the underlying

civil claim. LoBiondo v. Schwartz, 970 A.2d 1007, 1022-23 (N.J.

2009) (citing Mayflower Indus. v. Thor Corp., 83 A.2d 246 (N.J.

Super. Ct. Ch. Div. 1951), aff’d, 89 A.2d 242 (N.J. 1952)).

The Gilmore Defendants argue that: (1) Plaintiff has not

alleged a special grievance, (2) Plaintiff has not alleged that

the Gilmore Defendants acted with malice, and (3) Plaintiff has

not alleged that the Gilmore Defendants acted without probable

cause. Plaintiff generally contradicts each of these

assertions.

Because the Court finds that Plaintiff has not pled a

special grievance, Plaintiff’s malicious use of process claim

will be dismissed.5

1. Plaintiff Does Not Adequately Plead a Special Grievance

“Since there is no deprivation of liberty when a civil

complaint is filed, ‘the minimal impact of the commencement of

civil litigation is insufficient for recovery without the

additional showing of a special grievance.’” Druz v. Noto, No.

09-cv-5040, 2010 WL 2179550, at *9 (D.N.J. May 28, 2010), aff’d,

415 F. App’x 444 (3d Cir. 2011) (quoting Component Hardware

Group v. Trine Rolled Moulding Corp., No. 05–cv-891, 2007 U.S.

Dist. LEXIS 54900, *16–17 (D.N.J. July 27, 2007)). “A special

grievance ‘consists of an interference with one’s liberty or

property and includes events such as the filing of a bankruptcy

petition, granting an injunction, filing a lis pendens or

wrongful interference with the possession or enjoyment of

property.’” Id. (quoting Component Hardware Group, 2007 U.S.

Dist. LEXIS 54900 at *17).

Plaintiff fails to plead any facts relating to a special

grievance. While Plaintiff attempts to cure its deficiency in

5 The Court recognizes the Gilmore Defendants’ other arguments in

support of its motion but need not reach them as the Court finds

Plaintiff’s allegations legally deficient on other grounds.

its brief in opposition to the Gilmore Defendants’ motion,

suggesting for the first time that Plaintiff was forced to “hire

criminal counsel at a significant expenses [sic], and [endure]

years of scrutiny by the FBI in his business and personal

records” and that such harms “qualify as a ‘special

grievance[,]’” such allegations do not appear in the complaint.

See (ECF No. 13-5 (“Pl. Br.”) at 8). The law is clear that it

is the complaint, not Plaintiff’s briefing in opposition to the

motion to dismiss, that must be analyzed for pleading

sufficiency. Frederico v. Home Depot, 507 F.3d 188, 202 (3d

Cir. 2007) (quoting Commw. of Pa. ex. rel Zimmerman v. PepsiCo,

Inc., 836 F.2d 173, 181 (3d Cir. 1988)) (“the complaint may not

be amended by the briefs in opposition to a motion to

dismiss.”).

Because Plaintiff has not pled facts suggesting he suffered

a special grievance, the malicious use of process claim must be

dismissed.

B. Count Two: Malicious Prosecution

The Gilmore Defendants argue that a malicious prosecution

claim seeks remedy for “harm caused by the institution or

continuation of a criminal action that is baseless[,]” and

because the Zemurray action was not criminal in nature,

Plaintiff’s claim must fail as a matter of law. (ECF No. 9-1

(“Def. Br.”) at 5-6). The Gilmore Defendants submit that the

civil analogue of a malicious prosecution claim is a malicious

use of process claim. (Def. Br. at 6). Plaintiff appears to

agree that where it is a civil action as opposed to a criminal

action underlying the cause of action, the proper cause of

action is one for malicious use of process. See (Pl. Br. at 5)

(“[t]he tort of Malicious Prosecution based upon a Prior Civil

Proceeding is also sometimes referred to as Malicious Use of

Process.”).

The law quite clearly supports the Gilmore Defendants’

position. “Malicious prosecution provides a remedy for harm

caused by the institution or continuation of a criminal action

that is baseless.” LoBiondo v. Schwartz, 970 A.2d at 1022

(citing Earl v. Winne, 101 A.2d 535 (N.J. 1953)). “Malicious

use of process is essentially the analog used when the offending

action in question is civil rather than criminal.” Id. (citing

Penwag Prop. Co. v. Landau, 388 A.2d 1265 (N.J. 1978)). As the

New Jersey Supreme Court has held, “[a]lthough these causes of

action have much in common, there are significant differences

between them.” Id.

Malicious prosecution requires Plaintiff to prove four

elements, the first of which is that “a criminal action was

instituted by this defendant against this plaintiff.” Id. at

1023 (citing Lind v. Schmid, 337 A.2d 365 (N.J. 1975)).

Plaintiff has not alleged any misuse of criminal process or that

a criminal action was instituted by any Defendant against him.

The Zemurray action is unquestionably civil in nature. As such,

Plaintiff’s malicious prosecution claim must be dismissed.

C. Count Three: Negligence

A negligence cause of action contains four elements.

Plaintiff must plead Defendants owed him (1) a duty of care, (2)

that they breached that duty, (3) that such breach proximately

caused harm, and (4) that he suffered actual damages. See

Campbell Soup Supply Co. LLC v. Protenergy Nat. Foods Corp., No.

16-cv-684, 2016 WL 7104840, at *2 (D.N.J. Dec. 5, 2016)

(Hillman, J.) (citing Weinberg v. Dinger, 524 A.2d 366, 373

(N.J. 1987)).

In this action, Plaintiff alleges:

(1) that the Gilmore Defendants are attorneys,

(2) that they “are required to use the degree of

care, precaution, and vigilance that a

reasonable attorney would use under the same

or similar circumstances in making

allegations in the amended complaints that

were filed under Docket No. 14-CV-5169 in

New Jersey District Court[,]”

(3) that the “Gilmore Defendants owed a duty of

care to Gary A. Lax in pleading and

maintaining only fully vetted facts and

allegations against him[,]” and

(4) by “pleading and prosecuting the allegations

contained in the complaints under 14-CV-

5169” the Gilmore Defendants breached their

purported duty of care to Plaintiff.

(Comp. at Count Three, ¶¶1-7).6

Plaintiff clarifies the claims through his briefing,

arguing that because “all attorneys have a duty and obligation

to abide by the Rules of Professional Responsibility[,]” the

Gilmore Defendants “owed him a duty to act within the Rules of

Court.” (Pl. Br. at 11). Plaintiff further argues that the

Gilmore Defendants “breached that duty[,]” causing him harm.

(Pl. Br. at 11). At its core, Plaintiff’s negligence argument

is that the Gilmore Defendants owed him a duty of care to comply

with court rules and rules of professional conduct, and that by

allegedly violating those rules, the Gilmore Defendants breached

a duty owed to Plaintiff.

The Gilmore Defendants argue that they never owed Plaintiff

such a duty. They are correct.

Plaintiff’s contrived view of the law is not supported by

any relevant authority; indeed, Plaintiff does not identify any

source in support of his position. Instead, long-standing New

Jersey precedent directly undercuts Plaintiff’s theory. The New

6 Because Plaintiff’s complaint contains numerous paragraphs

identified by the numbers one through seven, the Court will

clarify throughout this Opinion as necessary to properly

identify which paragraphs it is referencing.

Jersey Supreme court has found that “the assertion that an

attorney has violated one of our . . . rules does not give rise

to a[n independent] cause of action[.]” Green v. Morgan

Properties, 73 A.3d 478, 494 (N.J. 2013) (citing Baxt v. Liloia,

714 A.2d 271 (N.J. 1998); see Brundage v. Estate of Carambio,

951 A.2d 947 (N.J. 2008) (reiterating that “[w]e have declined

to create a new tort-based cause of action against an attorney

based on a claim by an adversary of an asserted violation of our

RPCs”)).

This line of precedent unequivocally undermines Plaintiff’s

legal theory of liability and supports the Gilmore Defendants’

position that it owed no duty to Plaintiff stemming from its

obligations to the Court to follow court rules. Plaintiff’s

factual allegations, even accepted as true, fail to state a

legally cognizable claim for negligence. As such, Plaintiff’s

negligence claim must be dismissed.

D. Count Four: Negligent Infliction of Emotional Distress

“In order to establish a claim for negligent infliction of

emotional distress under New Jersey law, ‘a plaintiff must prove

that defendant’s conduct was negligent and proximately caused

plaintiff’s injuries.’” Veggian v. Camden Bd. of Educ., 600 F.

Supp. 2d 615, 629 (D.N.J. 2009) (Hillman, J.) (quoting

Williamson v. Waldman, 696 A.2d 14, 17-18 (N.J. 1997)).

“Determining defendant’s negligence ‘depends on whether

defendant owed a duty of care to the plaintiff[.]’” Id.

(quoting Williamson, 696 A.2d at 17-18).

Plaintiff alleges that the Gilmore Defendants owed him the

same duty discussed previously: “Defendants had a duty to the

Plaintiff, in that they are attorneys who are bound to follow

and abide by the rules of court.” (Pl. Br. at 12). For the

same reasons discussed above, Plaintiff has not shown that the

Gilmore Defendants owed Plaintiff any such duty. Plaintiff’s

negligent infliction of emotional distress claim suffers from

the same fatal flaw as his negligence claim and must be

dismissed.

E. Count Five: Respondeat Superior

Under respondeat superior, “an employer is responsible for

the negligence of its employees that occurs within the course

and scope of their employment. The employer’s liability is

vicarious and secondary to that of the employee, which is

primary.” Williams v. Rene, 72 F.3d 1096, 1099 (3d Cir. 1995).

The theory has been explained as “‘[t]he person primarily liable

is the employee or agent who committed the tort, and the

employer or principal may recover indemnity from him for the

damages which he [the employer] has been obliged to pay.’” Id.

(quoting Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d

Cir. 1982); Tromza v. Tecumseh Prods. Co., 378 F.2d 601, 605 (3d

Cir. 1967)).

Here, Plaintiff alleges that Atlantic City is liable for

the actions of its alleged agents, the Gilmore Defendants.

Plaintiff does not address or otherwise clarify this claim in

his briefing.

While Atlantic City has not moved to dismiss Plaintiff’s

complaint, because Plaintiff’s claims against the Gilmore

Defendants fail, so too must Plaintiff’s vicarious liability

claims against Atlantic City.7

II. Plaintiff’s Cross-Motion For Leave To Amend

Federal Rule of Civil Procedure 15(a)(2) provides that “a

party may amend its pleading only with the opposing party’s

written consent or the court’s leave.” Fed. R. Civ. P.

15(a)(2). “The court should freely give leave when justice so

requires.” Id.

Our Local Civil Rules expand upon the rules governing

motions for leave to amend. Particularly, Rule 15.1 requires a

party who seeks leave to amend a pleading to do so by motion,

7 District courts may dismiss claims that do not state causes of

action sua sponte. See Bintliff–Ritchie v. American Reinsurance

Company, 285 Fed. App’x. 940, 943 (3d Cir. 2008) (“The District

Court has the power to dismiss claims sua sponte under Rule

12(b)(6)”); Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559

(3d Cir. 1980); Worster-Sims v. Tropicana Entertainment, Inc.,

46 F. Supp. 3d 513, 517 (D.N.J. 2014).

which shall state whether such motion is opposed, and shall

attach to the motion: (1) a copy of the proposed amended

pleading; and (2) a form of the amended pleading that shall

indicate in what respect(s) it differs from the pleading which

it proposes to amend, by bracketing or striking through

materials to be deleted and underlining materials to be added.

Plaintiff’s motion fails to comply with Local Civil Rule

15.1. Plaintiff fails to submit a form of the proposed amended

pleading identifying the differences between the initial filing

and the proposed amended filing. Such a deficiency complicates

this Court’s review of the relevant documents and, in and of

itself, is an error significant enough to warrant denial of

Plaintiff’s motion. Sammut v. Valenzano Winery LLC, No. 18-cv-

16650, 2019 U.S. Dist. LEXIS 100598, *5, n.2 (D.N.J. June 17,

2019) (citing A.B. v. Vineland Bd. of Educ., No. 17-cv-11509,

2019 U.S. Dist. LEXIS 93126, at *5 (D.N.J. June 4, 2019))

(indicating that dismissal may be appropriate where a plaintiff

“did not properly indicate how the Amended Complaint differs

from her original one” as required by Local Civil Rule 15.1).

Despite this procedural deficiency, the Court will address the

merits of Plaintiff’s motion.

“[A] refusal of a motion for leave to amend must be

justified. Permissible justifications include: (1) undue delay;

(2) bad faith or dilatory motive; (3) undue prejudice to the

opposition; (4) repeated failures to correct deficiencies with

previous amendments; and (5) futility of the amendment.” Riley

v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995) (citation omitted).

The Court does not find there has been undue delay or bad

faith, nor does the Court discern undue prejudice to Defendants.

Plaintiff’s proposed amended complaint, however, fails to cure

the legal deficiencies outlined in this Opinion, and therefore,

Plaintiff’s motion to amend will be denied as futile.

1. Plaintiff’s Negligence-Based and Malicious Prosecution

Claims

In the proposed amended complaint, Plaintiff relies upon

the same legal theories that this Court previously deemed

legally deficient in support of his negligence-based and

malicious prosecution claims. Namely, Plaintiff’s proposed

amended complaint does not amend his negligence theory, which

this Court already found legally deficient. Furthermore, the

proposed amended complaint does not allege that any criminal

action was instituted against him by these Defendants, such

being a prerequisite to a viable action for malicious

prosecution. See LoBiondo v. Schwartz, 970 A.2d at 1023. As

such, the Court will deny Plaintiff’s motion for leave to amend

as it relates to the negligence-based and malicious prosecution

counts, as the proposed amendments to those claims remain

legally deficient, rendering any amendment futile.

2. Malicious Use of Process Claim

As for Plaintiff’s malicious use of process claim, the

proposed amended complaint alleges, in relevant part, as

follows:

17. As a result of the baseless lawsuit,

[Plaintiff] was forced to retain counsel for the

criminal investigation.

18. [Plaintiff] was forced to suffer extreme and

severe mental anguish and emotional damages.

. . . .

30. During the Rule 11 hearing, and at other

times prior, the [Gilmore] Defendants represented that

they “contacted the FBI” about the allegations

contained in their complaints.

. . . .

32. This forced [Plaintiff] to continue to incur

even more counsel fees and costs in responding to and

cross moving for summary judgment.

33. The acts . . . by the Defendants . . . forced

Plaintiff to endure years of scrutiny by the FBI and

other governmental agencies, to suffer extreme mental

duress, and to incur enormous expense to respond to

the criminal allegations.

34. The acts . . . by the Defendants . . . forced

Plaintiff to lose multiple business opportunities

outside of his law practice and caused injuries to

Plaintiff in his law practice.

(ECF No. 13-2 at ¶¶17-18, 30, 32-34). Plaintiff further alleges

that he suffered “special damages including, but not limited to,

loss of existing and prospective clients (banking and financial

institutions) resulting in loss of revenue; loss of employment

opportunities; loss of opportunity to work on existing client

files; loss of opportunity to serve on [the] Board of Directors

for financial institutions; and threats of criminal

prosecution.” (ECF No. 13-2 at ¶39). Plaintiff’s allegations

can be organized into two categories: financial or reputational

injuries and “threats of criminal prosecution.”

As for the former, New Jersey courts have routinely found

that loss of business opportunities and loss of reputation do

not constitute special grievances. See, e.g., Fielder Agency v.

Eldan Constr. Corp., 377 A.2d 1220, 1223 (N.J. Super Ct. Law

Div. 1977) (finding that “injury to a defendant’s reputation for

financial responsibility in the operation of its business” is

not “such special damage sufficient to sustain a cause of

action” for malicious prosecution or malicious use of process);

Ackerman v. Lagano, 412 A.2d 1054 (N.J. Super. Ct. Law Div.

1979) (interference with medical practice and professional

reputation insufficient to constitute a special grievance);

Hassoun v. Cimmino, 126 F. Supp. 2d 353, 370 (D.N.J. 2000)

(“insufficient are allegations of mental anguish or emotional

distress arising from the prior complaints, or statements

alleging a loss of reputation”). As such, to the extent

Plaintiff relies on loss of business opportunity and

reputational harm as the basis for pleading special grievances

and in seeking leave to amend the complaint, such pleadings are

legally deficient and any amendment on that basis would be

futile.

As for whether suffering threats of criminal prosecution

constitute a special grievance, precedent from this District

suggests it does not. In Druz v. Noto, No. 09-cv-5040, U.S.

Dist. LEXIS 53348 (D.N.J. May 28, 2010), aff’d, 415 Fed. App’x.

444 (3d Cir. 2011), a court in this District was tasked with

determining whether suffering an Office of Attorney Ethics

investigation constituted a special grievance. In Druz, the

plaintiff “alleges only that the OAE presented charges against

him” and “following a multi-year investigation, a Special Master

was appointed who, after conducting plenary hearings, issued a

written decision dismissing all charges against Plaintiff, fully

exonerating him.” Id. at *31. The Druz court found that

“[o]ther than the fact that the Plaintiff was forced to answer

to the charges, he does not allege any adverse consequence as a

result of the OAE proceeding.” Id. at *32. The Druz court

determined that such allegations would not constitute a special

grievance. Id.

Like the plaintiff in Druz, Plaintiff does not allege that

he suffered any special harm other than being forced to “respond

to the criminal allegations.” (ECF No. 13-2 at ¶33). Guided by

Druz, such allegations are insufficient to establish a special

grievance. As such, Plaintiff’s motion for leave to amend this

count will be denied as futile.

3. Respondeat Superior Claim

Plaintiff’s proposed amended complaint does not

meaningfully alter his respondeat superior theory. Plaintiff

continues to argue that “Atlantic City is liable for the acts .

. . of the [Gilmore Defendants] who were acting as its agent.”

(ECF No. 13-2 at ¶70). As explained above, an employer’s

liability is vicarious and secondary to that of the agent, which

is primary. Williams v. Rene, 72 F.3d at 1099. Because the

Court finds that all allegations against the Gilmore Defendants

must be dismissed, and that any amendment to those claims would

be futile, Plaintiff’s respondeat superior claim against

Atlantic City must suffer a similar fate; Plaintiff’s motion for

leave to amend that claim will be denied.

III. Atlantic City’s Motion to Vacate Default

Atlantic City moves to vacate the Clerk’s entry of default

entered against it. (ECF No. 19). Plaintiff has not opposed,

and the time to do so has passed. Because the Court will

dismiss this action against all Defendants, with prejudice,

Atlantic City’s motion will be denied as moot.

CONCLUSION

For the reasons expressed above, the Gilmore Defendants’

motion to dismiss Plaintiff’s complaint (ECF No. 9) will be

granted; Plaintiff’s cross-motion for leave to amend (ECF No.

13) will be denied as futile; and Atlantic City’s unopposed

motion to vacate the Clerk’s entry of default (ECF No. 19) will

be denied as moot. The Court will sua sponte dismiss this

action as against Atlantic City for the reasons stated above.

As such, all claims against all Defendants have been fully

resolved and the Clerk will be Ordered to close this matter.

An appropriate Order will follow.

Date: December 26, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.