MCBRIDE v. TOWNSHIP OF WASHINGTON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRIAN F. MCBRIDE, Civil No. 19-17196(NLH)(JS)

Plaintiff,

v.

OPINION

TOWNSHIP OF WASHINGTON; JOSEPH

J. MICUCCI; CAPEHART AND

SCATCHARD, PA; CARMEN

SAGINARIO; and ELIZABETH

MICUCCI,

Defendants.

APPEARANCES:

BRIAN F. MCBRIDE

86 GOODWIN PARK

SEWELL, NJ 08080

Pro se Plaintiff.

JAMES R. BIRCHMEIER

BIRCHMEIER & POWELL LLC

1891 STATE HIGHWAY 50

PO BOX 582

TUCKAHOE, NJ 08250-0582

Counsel for Defendants Township of Washington and Joseph J.

Micucci.

SEAN X. KELLY

MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, PC

CHERRY TREE CORPORATE CENTER

535 RT. 38 EAST

SUITE 501

CHERRY HILL, NJ 08002

CHRISTIAN M. SCHEUERMAN

MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, PC

CHERRY TREE CORPORATE CENTER

535 ROUTE 38 EAST

SUITE 501

CHERRY HILL, NJ 08002

DAVID ELIOT MADDEN

MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, PC

CHERRY TREE CORPORATE CENTER

535 ROUTE 38 EAST

SUITE 501

CHERRY HILL, NJ 08002

Counsel for Defendants Capehart & Scatchard, PA and Carmen

Saginario.

JEREMY S. COLE

LEX NOVA LAW, EIZEN/GOLDSTEIN/RODERICK/SKINNER/SPIRGEL/DRESS

1810 CHAPEL AVE WEST

SUITE 200

CHERRY HILL, NJ 08002

Counsel for Third-Party Jason Gonter.

HILLMAN, District Judge

This action arises from ongoing disagreements between

Plaintiff Brian F. McBride (“Plaintiff”), the Township of

Washington (the “Township”), and a Township official, Joseph J.

Micucci (“Micucci”) (together, the Township and Micucci will be

referred to as the “Township Defendants”). Plaintiff also

brings claims against the Township’s legal counsel, Capehart &

Scatchard, PA (“Capehart”) and a Capehart attorney, Carmen

Saginario (“Saginario”) (together, Capehart and Saginario will

be referred to as the “Capehart Defendants”).1

This matter presents a remarkable procedural posture and

comes before the Court on some twenty-five (25) active motions,

the most pressing of which are motions to dismiss Plaintiff’s

1 The Court uses the term “Defendants” when referring

collectively to the Capehart Defendants and the Township

Defendants.

complaint (ECF Nos. 7 & 20) and motions and cross-motions by

Plaintiff also dispositive in nature (ECF Nos. 13, 16, & 28).

For the reasons that follow, the Court will grant Defendants’

motions to dismiss and deny as moot Plaintiff’s motions and

cross-motions for dispositive relief. All other motions will be

resolved as discussed further below. Plaintiff will be invited

to seek leave to file an amended complaint if he can do so

consistent with the Federal Rules of Civil Procedure, this

Court’s Local Civil Rules, and this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The Court takes its facts as best it can from Plaintiff’s

complaint (ECF No. 1-2). Plaintiff is a longtime resident of

the Township and appears to be active in local politics. In

that capacity, Plaintiff alleges he identified and complained

about numerous improper actions he perceived as occurring in the

Township and received backlash from the Township Defendants for

doing so. That backlash, and Plaintiff’s objections to it, form

the basis of this action.

For example, at some unidentified time, Plaintiff alleges

he opposed “sexual discrimination” in the Township’s “employment

practices.” (ECF No. 1-2 (“Compl.”) at ¶7).2 The complaint does

2 Plaintiff’s complaint contains numerous paragraphs sharing the

same paragraph number. For purposes of clarity, in the Factual

Background section of this Opinion, references to the complaint

not explain the scope of those practices or how he came to learn

about them. Plaintiff also opposed what he viewed as “egregious

salary increases” offered to Township employees with relatively

short tenures of employment. See (Compl. at ¶¶8-11). Plaintiff

does not identify which employees he references or otherwise

explain this allegation. Additionally, Plaintiff identified

what he believed to be a conflict of interest involving

Capehart’s representation of the Township because a Capehart

employee was serving as Treasurer for a mayoral campaign in the

Township. (Compl. at ¶¶12-13). Plaintiff also opposed

“unmannerly” behavior exhibited by a Township representative.

(Compl. at ¶9). Other examples of issues Plaintiff asserts he

raised abound in the complaint. See, e.g., (Compl. at ¶¶14-22)

(explaining that Plaintiff opposed other Township actions that

he perceived as inappropriate, unlawful, or misguided).

As a result of Plaintiff’s objections, Defendants embarked

on a coordinated attack against him, which Plaintiff alleges was

intended to silence and punish him for speaking out. (Compl. at

¶¶24-26). For example, members of the Township’s Council

publicly attacked Plaintiff’s credibility and advanced nine

unidentified “citizen issued criminal complaints” against him.

(Compl. at ¶¶22-26). Plaintiff was also the subject of two

will be to the section of the complaint titled “factual

allegations[.]”

unidentified civil lawsuits for slander and libel brought by

elected Township officials. (Compl. at ¶¶27-28).

Plaintiff also focuses the Court on an incident between the

Township and his family regarding the pool located on

Plaintiff’s property. Township officials visited Plaintiff’s

property, inspected his pool, and issued ordinance violations or

“pool violations” against him for unexplained code violations.

(Compl. at ¶¶30-35). This dispute was litigated in state court

and spilled over onto social media, with Plaintiff and Township

officials publicly sparring over whether Plaintiff’s pool was

“illegal[.]” (Compl. at ¶¶54-59). These public exchanges

fueled additional complaints by Plaintiff, including demands

that certain elected officials be fired. (Compl. at ¶¶64-69).

This action is the most recent portion of this ongoing

saga. On July 15, 2019, Plaintiff filed a fourteen (14) count

complaint against Defendants in the Superior Court of New

Jersey, asserting the following claims:

•

Count 1: Common Law Fraud/Negligent Fraud/Intentional Fraud

against all Defendants;

•

Count 2: Official Misconduct, in violation of N.J. Stat.

Ann. § 2C:30-2, against Defendants Micucci and Saginario;

•

Counts 3-5: A Civil Racketeer Influenced and Corrupt

Organizations Act (“RICO”) claims, 18 U.S.C. § 1961, et

seq., against all Defendants;

•

Count 6: A RICO Conspiracy claim, 18 U.S.C. § 1962(d),

against all Defendants;

•

•

Count 7: Violations of the First Amendment, against all

Defendants;3

•

Count 8: Civil conspiracy, against all Defendants;

•

Count 9: Civil liability for releasing juvenile records of

Plaintiff, in violation of N.J. Stat. Ann. § 2A:4A-60,

against all Defendants;

•

Count 10: Plaintiff does not include a tenth count in his

complaint and skips directly to count eleven;

•

Counts 11-12: Violations of the New Jersey Civil Rights Act

(NJCRA), N.J. Stat. Ann. § 10:6-2, et seq., against all

Defendants;4

•

Count 13: Violations of the New Jersey Open Public Records

Act, N.J. Stat. Ann. § 47:1A-1, or in the alternative, the

common law right of access, against the Township;

• Count 14: Defamation per se, against Defendant Micucci.

On August 26, 2019, Defendants removed Plaintiff’s

complaint to this Court. (ECF No. 1). Since that date,

Defendants have moved to dismiss Plaintiff’s complaint. (ECF

Nos. 7 & 20). Plaintiff countered by filing a remarkable number

3 Two counts in Plaintiff’s complaint are identified as count

seven. The first count so identified is a First Amendment

claim. That claim is identified as count seven in this Opinion.

Count eight (the second count identified by Plaintiff as count

seven) contains a civil conspiracy claim and is referred to by

this Court as count eight.

4 While Plaintiff fashions his claim as one under the New Jersey

Civil Rights Act, N.J. Stat. Ann. § 10:6-2, et seq., his

complaint references the New Jersey Law Against Discrimination,

N.J. Stat. Ann. § 10:5-1 et seq. This inconsistency is

discussed further below.

of motions, more than twenty (20) of which remain pending before

this Court:

•

ECF No. 10: Plaintiff’s motion for default judgment;

•

ECF No. 13: Plaintiff’s motion for summary judgment;

•

ECF No. 15: Plaintiff’s motion for default judgment;

•

ECF No. 16: Plaintiff’s motion for summary judgment;

•

ECF No. 17: Plaintiff’s motion to “enforce litigant’s

rights for preservation of evidence”;

•

ECF No. 18: Plaintiff’s motion for sanctions;

•

ECF No. 23: Plaintiff’s motion for injunctive relief;

•

ECF No. 25: Plaintiff’s motion to compel the Township to

comply with an open public records act request;

•

ECF No. 26: Plaintiff’s motion for sanctions;

•

ECF No. 27: Plaintiff’s motion for leave to file a sur

reply to the Capehart Defendants’ motion to dismiss;

•

ECF No. 28: Plaintiff’s cross-motion for summary judgment

against the Township Defendants;

•

ECF No. 40: Plaintiff’s motion for sanctions;

•

ECF No. 44: Plaintiff’s motion for sanctions;

•

ECF No. 45: Plaintiff’s motion to enforce litigant’s

rights “for preservation of evidence”;

•

ECF No. 50: Plaintiff’s motion to force Defendants to

comply with “F.R.C.P. Rule 5: service of papers”;

•

ECF No. 60: Plaintiff’s motion for sanctions;

•

ECF No. 72: Plaintiff’s motion to amend his motion to

enforce litigant’s rights;

•

ECF No. 94: Plaintiff’s motion for injunctive relief;

•

ECF No. 103: Plaintiff’s motion to compel discovery;

•

ECF No. 123: Plaintiff’s motion for a restraining order;

•

ECF No. 127: Plaintiff’s motion “for contempt of Court

and Warrant [to] issue as to” various non-parties.

Lastly, before the Court is a motion by non-party Jason Gonter

to quash a subpoena served upon him by Plaintiff (ECF No. 147).

All of these motions are ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331.

II. Legal Standard – Motion to Dismiss

In 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 must accept

all well-pleaded allegations in the complaint as true and view

them in the light most favorable to 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). Where a plaintiff advances

fraud claims, however, the Federal Rules of Civil Procedure

prescribe a heightened pleading standard. In pleading fraud, a

plaintiff must “state with particularity the circumstances

constituting fraud or mistake.” Fed. R. Civ. P. 9(b).

“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).

III. Defendants’ Motions to Dismiss

Defendants move to dismiss Plaintiff’s complaint for

failing to comply with Rules 8(a), 9(b) and 12(b)(6) of the

Federal Rules of Civil Procedure. The Court agrees that

Plaintiff’s complaint fails to comport with Rules 8(a) and 9(b),

and consequently, fails to state a claim upon which relief may

be granted. The Court addresses each of Plaintiff’s claims in

turn.

A. Count 1: Common Law Fraud/Negligent Fraud/Intentional Fraud

Plaintiff alleges that “Defendant Saginario [owes] a duty

to be honest in their representations [and] lied” to a court in

another matter involving Plaintiff. (Compl. at 7, ¶9.a).

Plaintiff also alleges that “Defendant Mi[c]ucci had a duty to

keep juvenile records he accessed as a police officer

confidential[.]” (Compl. at 7, ¶9.b). Plaintiff does not

expand upon either of these allegations.

To establish common-law fraud, a plaintiff must allege: (1)

a material misrepresentation of a presently existing or past

fact; (2) knowledge or belief by the defendant of its falsity;

(3) an intention that the other person rely on it; (4)

reasonable reliance thereon by the other person; and (5)

resulting damages. Banco Popular N. Am. v. Gandi, 876 A.2d 253,

260 (N.J. 2005) (quoting Gennari v. Weichert Co. Realtors, 691

A.2d 350 (N.J. 1997)).

Plaintiff does not clearly allege facts satisfying any of

the Banco elements against Micucci. Similarly, while Plaintiff

alleges Saginario made a misrepresentation to another court, the

complaint does not elaborate upon that allegation in such a

manner that would allow Defendants or this Court to identify the

specific misrepresentation, when it was made, or determine

whether it was false.5 As such, Plaintiff has not pled his fraud

5 Additionally, to the extent Plaintiff alleges these

misrepresentations occurred during a judicial proceeding, which

it appears Plaintiff alleges, the law is clear in New Jersey

that statements by attorneys, parties, and their representatives

made in the course of judicial proceedings are absolutely

privileged and immune from liability. Peterson v. Ballard, 679

A.2d 657, 659 (N.J. Super. Ct. App. Div. 1996) (citing Erickson

v. Marsh & McLennan Co., Inc., 569 A.2d 793 (N.J. 1990)).

claim with the level of specificity required by Rule 9(b) and

this claim must be dismissed.

B. Count 2: Official Misconduct, in violation of N.J. Stat.

Ann. § 2C:30-2

Plaintiff advances a claim styled as one for “civil

liability for official misconduct,” in violation of N.J. Stat.

Ann. § 2C:30-2. N.J. Stat. Ann. § 2C:30-2 is a criminal statute

that makes official misconduct a crime of the second degree.

The statue does not contemplate a private or civil right of

action. Jones v. Somerset Cty. Prosecutor’s Office, No. 15-cv-

2629-FLW, 2017 WL 1337432, at *9 (D.N.J. Apr. 7, 2017)

(suggesting that no private right of action exists under N.J.

Stat. Ann. § 2C:30-2). Courts are hesitant to infer private

rights of action where they are not provided for within the

statutory text. Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 190, 114 S. Ct.

1439, 128 L. Ed. 2d 119 (1994) (noting reluctance to infer a

private right of action from a criminal prohibition alone);

Wilson v. McKeesport Police Dept/City of McKeesport, 731 F.

App’x 92, 93 (3d Cir.), cert. denied sub nom. Wilson v.

McKeesport Police Dep’t, 139 S. Ct. 256, 202 L. Ed. 2d 171

(2018); Thompson v. Michels, 574 F. App’x 196, 197 (3d Cir.

2014).

Because no private right of action exists under N.J. Stat.

Ann. § 2C:30-2, this claim must be dismissed with prejudice.

C. Counts 3-5: Plaintiff’s RICO Claims

In order to survive a motion to dismiss a civil RICO claim,

the complaint must adequately set forth the following elements:

(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity. Poling v. K. Hovnanian Enterprises, 99

F. Supp. 2d 502, 507–08 (D.N.J. 2000) (citing Sedima, S.P.R.L.,

v. Imrex Company, Inc., 473 U.S. 479, 496, 105 S. Ct. 3275,

3285, 87 L. Ed. 2d 346 (1985)); Morales v. Superior Living

Prod., LLC, 398 F. App’x 812, 814 (3d Cir. 2010) (same). A

“pattern” of racketeering activity requires at least two

predicate acts of racketeering be pled. See 18 U.S.C. §

1961(5); Sedima, 473 U.S. at 496 n. 14. Section 1961 lists

those acts that qualify as racketeering activity for the

purposes of pleading a RICO claim. 18 U.S.C. § 1961(1); see

Annulli v. Panikkar, 200 F.3d 189, 199 (3d Cir. 1999).

Plaintiff appears to rely upon the predicate acts of mail and

wire fraud in advancing his claims.

Because fraud claims are advanced as the predicate RICO

acts, they must be pled with the level of specificity and

particularity required by Rule 9(b). Saporito v. Combustion

Engineering Inc., 843 F.2d 666, 673 (3d Cir. 1988), vacated on

other grounds, 489 U.S. 1049, 109 S. Ct. 1306, 103 L. Ed. 2d 576

(1989). To plead mail or wire fraud with sufficient

particularity, plaintiffs must plead “the ‘circumstances’ of the

alleged fraud in order to place the defendants on notice of the

precise misconduct with which they are charged, and to safeguard

defendants against spurious charges of immoral and fraudulent

behavior.” Seville Indus. Machinery Corp. v. Southmost

Machinery Corp., 742 F.2d 786, 791 (3d Cir. 1984), cert. denied,

469 U.S. 1211, 105 S. Ct. 1179, 84 L. Ed. 2d 327 (1985). This

must include identification and explanation of the specific

conduct alleged to be fraudulent, often by providing the “date,

place and time” that the alleged fraud occurred or some

“alternative means of injecting precision and some measure of

substantiation into their allegations of fraud.” Id. Vague or

conclusory allegations of fraud will not survive a motion to

dismiss. In re Burlington Coat Factory Securities Litig., 114

F.3d 1410, 1418 (3d Cir. 1997). Allegations that generally

allege fraud, without informing each defendant as to the

specific fraudulent acts he or she is alleged to have committed,

do not satisfy Rule 9(b). See Mayor & Council of Borough of

Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1060 (D.N.J.

1993).

Plaintiff has not satisfied Rule 9(b)’s pleading

requirements in advancing his RICO claims. Plaintiff simply

pleads the RICO standard without identifying the specific acts

he alleges constitute mail and wire fraud. The complaint is

silent as to dates and times of alleged events and does not

identify the participants to them. Without such information,

Plaintiff does not comply with Rule 9(b) and his RICO claims

must be dismissed.

D. Count 6: RICO Conspiracy

The RICO conspiracy statute provides that “[i]t shall be

unlawful for any person to conspire to violate any of the

provisions of subsection (a), (b), or (c) of this section.” 18

U.S.C. § 1962(d). Plaintiff has not adequately alleged facts

upon which this Court could find that Defendants conspired to

commit civil RICO. The complaint does not identify who

allegedly participated in a conspiracy, when that conspiracy

allegedly occurred, or the scope of that conspiratorial

behavior. Even assuming Plaintiff’s alleged conspiracy involved

all Defendants, and the conspiracy was to silence Plaintiff,

Plaintiff had not set forth facts upon which Defendants or this

Court could ascertain which actions Plaintiff tethers his cause

of action to; the vague allegations in the complaint are simply

insufficient to meet Plaintiff’s pleading burden. As such, this

cause must be dismissed.

E. Count 7: First Amendment Claim

Plaintiff states that his First Amendment claim is

actionable under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d

619 (1971). A Bivens claim is a judicially-created remedy for

violations committed by federal officials. Plaintiff has not

alleged that any Defendant acted under color of federal law or

is otherwise a federal officer. Quite possibly, Plaintiff may

have meant to bring an action under 42 U.S.C. § 1983, which as

an analogue to Bivens, permits claims to be brought against

officials acting under color of state law, as opposed to federal

law, but because it is not clear that is what Plaintiff

intended, and because the Court remains unable to determine the

scope of Plaintiff’s claim, this cause of action must be

dismissed for failing to comply with Rule 8(a).

F. Count 8: Civil Conspiracy

Plaintiff alleges Defendants conspired to “abuse legal

process,” “burden plaintiff in his defense” of lawsuits, damage

Plaintiff financially, defame plaintiff, and silence Plaintiff

from speaking out against the Township. (Compl. at 14, ¶58).

In New Jersey, a civil conspiracy is “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, 876 A.2d at 263 (quoting Morgan v. Union County

Bd. of Chosen Freeholders, 633 A.2d 985, 998 (N.J. Super. Ct.

App. Div. 1993), certif. denied, 640 A.2d 850 (N.J. 1994)). The

gist of the claim is not the unlawful agreement, but the

underlying wrong which, absent the conspiracy, would give a

right of action. Id. (citations omitted).

While Plaintiff generally alleges Defendants conspired

against him in an effort to retaliate against and punish him for

speaking out against them, he does not allege, with sufficient

detail, the creation of or existence of a conspiracy to commit

an identifiable wrong. Plaintiff alleges Defendants’ conspiracy

was to abuse legal process against him, burden him with

defending legal actions, damage him financially, defame him, and

otherwise restrain his speech. Plaintiff does not identify how

or when these alleged wrongs occurred, who precisely committed

them, or otherwise contextualize his allegations. Moreover,

while Plaintiff alleges that a conspiracy exists, he does not

explain which facts support that conclusory statement, depriving

Defendants and this Court of any ability to understand the

contours of his claim. As such, Plaintiff has not sufficiently

pled a civil conspiracy claim, and that claim must be dismissed.

G. Count 9: Civil liability for releasing juvenile records of

Plaintiff, in violation of N.J. Stat. Ann. § 2A:4A-60

Plaintiff argues that Micucci, a former police officer with

unique access to information and documentation regarding

Plaintiff’s youth, improperly disclosed certain juvenile records

referencing Plaintiff on the internet. Plaintiff avers that

Micucci’s actions violate N.J. Stat. Ann. § 2A:4A-60. Having

reviewed the statutory language Plaintiff relies upon, the Court

is not convinced that it provides for a private right of action.

In relevant part, N.J. Stat. Ann. § 2A:4A-60 provides that

[w]hoever, except as provided by law, knowingly

discloses, publishes, receives, or makes use of or

knowingly permits the unauthorized use of information

concerning a particular juvenile derived from records

listed in subsection a. or acquired in the course of

court proceedings, probation, or police duties, shall,

upon conviction thereof, be guilty of a disorderly

persons offense.

N.J. Stat. Ann. § 2A:4A-60(h). While the statute makes it a

criminal act to improperly disclose juvenile records, it does

not appear to create a civil, private right of action. As this

Court discussed previously, courts are hesitant to infer private

rights of action where they are not explicitly or implicitly

contained within the statutory text. Central Bank of Denver,

N.A., 511 U.S. at 190. Because no private right of action

appears to exist, this claim must be dismissed with prejudice.

H. Counts 11 and 12: New Jersey Civil Rights Act Claims

While Plaintiff styles these claims as arising under the

NJCRA, N.J. Stat. Ann. § 10:6-2, et seq., the complaint directs

this Court to another statute all together, the New Jersey Law

Against Discrimination (NJLAD), N.J. Stat. Ann. § 10:5-1, et

seq. It appears from Plaintiff’s allegations that he pursues a

NJCRA claim, not an NJLAD claim. Noting this pleading

discrepancy, the Court turns to Plaintiff’s more particularized

allegations.

Plaintiff appears to allege that Defendants knew he was a

member of a Republican club as a young adult and targeted him

for that affiliation by pursuing unidentified criminal actions

against him in an effort to suppress his political speech.

The NJCRA provides a means of vindicating substantive

rights guaranteed by federal law and New Jersey’s Constitution

and laws. Lapolla v. Cty. of Union, 157 A.3d 458, 469 (N.J.

Super. Ct. App. Div. 2017) (citations omitted). The NJCRA

authorizes a private right of action:

Any person who has been deprived of any substantive

due process or equal protection rights, privileges or

immunities secured by the Constitution or laws of the

United States, or 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.

Id. (citing N.J. Stat. Ann. § 10:6–2(c)) (emphasis removed).

Two types of private claims are recognized under this statute:

(1) a claim when one is “deprived of a right,” and (2) a claim

when one’s rights have been “interfered with by threats,

intimidation, coercion or force.” Id. (quoting Felicioni v.

Admin. Office of Courts, 961 A.2d 1207 (N.J. Super. Ct. App.

Div. 2008), certif. denied, 3 A.3d 1228 (N.J. 2010)).

Plaintiff’s general allegations might qualify as both an

interference claim and a deprivation claim. Problematically,

Plaintiff does not explain when these acts occurred, who

participated in them, or any other foundational information

necessary for this Court to analyze the sufficiency of

Plaintiff’s allegations. As such, this count must be dismissed

for failing to comply with Rule 8(a).

I. Count 13: Violations of the New Jersey Open Public Records

Act, in violation of N.J. Stat. Ann. § 47:1A-1

Plaintiff alleges that he is entitled to access Micucci’s

private Facebook page because Micucci used that platform to

further Township business. (Compl. at ¶90). Plaintiff

therefore alleges the Township wrongfully denied his Open Public

Records Act (OPRA) request seeking such access.

“[T]o ensure an informed citizenry and to minimize the

evils inherent in a secluded process,” the New Jersey

Legislature enacted OPRA with the purpose to provide the public

with broad access to “government records,” unless an exemption

applies. Frega v. Borough of Saddle River, No. A-2252-18T3,

2020 WL 412893, at *2 (N.J. Super. Ct. App. Div. Jan. 27, 2020)

(citations omitted). A “government record” is a document

“made, maintained or kept on file in the course of . . .

official business.” N.J. Stat. Ann. § 47:1A-1.1. Micucci’s

private Facebook page clearly falls afield of that definition.6

As such, Plaintiff’s OPRA claim must fail, and will be

dismissed.

J. Count 14: Defamation per se

Plaintiff alleges that Micucci made false statements about

him, “specifically attack[ing] Plaintiff’s intelligence[.]”

(Compl. at ¶95).

To establish a prima facie case of defamation per se,

Plaintiff must show that defendant communicated to a third

person a false statement about plaintiff that tended to harm

plaintiff’s reputation in the eyes of the community or to cause

others to avoid plaintiff. McLaughlin v. Rosanio, Bailets &

Talamo, Inc., 751 A.2d 1066, 1071–72 (N.J. Super. Ct. App. Div.

2000) (citing Lynch v. New Jersey Educ. Ass’n, 735 A.2d 1129

(N.J. 1999)). In deciding whether a statement is defamatory a

court must examine three factors: content, verifiability, and

context. Id. (citations omitted). A statement must be judged

6 The Court recognizes that Plaintiff also appears to request

access to Micucci’s Facebook page under what Plaintiff calls the

common law right of access. Generally, that right of access

applies to documents produced to a court. See In re Avandia

Mktg., Sales Practices & Prod. Liab. Litig., 924 F.3d 662, 675

(3d Cir. 2019). Because it is unclear on what theory Plaintiff

relies upon in making this argument, the Court must reject it

pending further clarification.

not by its literal meaning but by its objective meaning to a

reasonable person of ordinary intelligence. Mere insults and

rhetorical hyperbole, while they may be offensive or unpleasant,

are not defamatory. Id. (citations omitted). Moreover, only

verifiable statements can be defamatory. “Since opinions and

name-calling cannot be proved true or false, they are not

actionable.” Id. (citations omitted). Hence, recovery is

limited to defamatory false averments of fact and the truth of

the statement is a complete defense to a defamation action. Id.

(citations omitted).

Plaintiff’s allegation that he was called unintelligent is

not actionable defamation. Certainly, such comments and name-

calling are insulting and offensive, but such comments fall into

the category of rhetoric that is not actionable. See

McLaughlin, 751 A.2d at 1071–72. As such, Plaintiff fails to

plead an actionable claim for defamation per se and this claim

will be dismissed.

IV. Remaining Motions

Finding that Plaintiff’s action must be dismissed, the

Court turns to the remaining motions before it. First, the

Court addresses Plaintiff’s motion for leave to file a sur reply

brief to the Capehart Defendants’ motion to dismiss (ECF No.

27). The Court will grant that motion and has considered the

arguments raised in the sur reply in deciding the Capehart

Defendants’ motion. Ultimately, the arguments advanced did not

alter this Court’s decision.

As noted, the Court will grant Defendants’ motions to

dismiss (ECF Nos. 7 & 20). In doing so, the Court must

necessarily deny as moot Plaintiff’s motions for affirmative

relief, including injunctive relief and restraining orders (ECF

No. 23, 92, & 123), Plaintiff’s motion to compel (ECF No. 25),

Plaintiff’s motions and cross-motions for summary judgment (ECF

Nos. 13, 16 & 28), and various other discovery-based motions

(ECF Nos. 17, 45, 50, 72, 94, & 103).

The Court will also deny Plaintiff’s motions for default

judgment (ECF Nos. 10 & 15) as Plaintiff has not pled facts that

would constitute viable causes of action. See Chanel, Inc. v.

Gordashevsky, 558 F. Supp. 2d 532, 536 (D.N.J. 2008) (citations

omitted).

Plaintiff’s motions for sanctions (ECF Nos. 18, 26, 40, 44,

60, & 127) have been considered by this Court and will be

denied. These motions are largely frivolous and meritless, and

beyond any sense of doubt, have distracted from the merits of

this case. Unfortunately, a review of the docket confirms that

Plaintiff does not advance these motions with clean hands, and

has, in many ways that need not be recited here but which are

evident from a review of the record, created equally as much

havoc, if not more, than he complains of. Most notably, the

docket contains concerning allegations about Plaintiff’s actions

involving defense counsel and their families. In sum, the Court

denies these motions and cautions the parties about advancing

such motions in the future, which undoubtedly waste judicial

resources and delay resolution of this matter on the merits.

Lastly, before the Court is a motion by non-party Jason

Gonter to quash a subpoena served upon him by Plaintiff (ECF No.

147). This motion was previously addressed by Judge Schneider

during a May 22, 2020 telephonic conference and again by

Plaintiff in a letter dated May 22, 2020 (ECF No. 153).

Plaintiff agreed to withdraw the subpoena to Gonter that was the

subject of the motion to quash. Therefore, the motion to quash

will be denied as moot.

V. The Court Will Permit Plaintiff An Opportunity To Amend

If He Can Do So Consistent With This Opinion

While Plaintiff has not sought leave to amend, this action

involves certain civil rights claims, and therefore, Third

Circuit precedent requires this Court to permit Plaintiff an

opportunity to amend those claims unless some specified reason

exists to prevent amendment. See, e.g., Grayson v. Mayview

State Hosp., 293 F.3d 103 (3d Cir. 2002); Weston v.

Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001). Because

Plaintiff is proceeding pro se, the Court extends an even

greater courtesy to Plaintiff and will permit him to seek leave

to amend certain non-civil rights claims as well.

Rule 15(a)(2) of the Federal Rules of Civil Procedure

“requires that leave to amend the pleadings be granted freely

‘when justice so requires.’” Long v. Wilson, 393 F.3d 390, 400

(3d Cir. 2004) (citing Fed. R. Civ. P. 15(a)) (“We have held

that motions to amend pleadings should be liberally granted.”).

Thus, “absent undue or substantial prejudice, an amendment

should be allowed under Rule 15(a) unless denial [can] be

grounded in bad faith or dilatory motive, truly undue or

unexplained delay, repeated failure to cure deficiency by

amendments previously allowed or futility of amendment.” Id.

(internal quotations, citations, and emphasis omitted); see also

Haynes v. Moore, 405 F. App’x 562, 564 (3d Cir. 2011) (noting

that even though leave to amend under Rule 15 should be freely

given, “a district court may exercise its discretion and deny

leave to amend on the basis of undue delay, bad faith, dilatory

motive, prejudice, or futility.”).

In this case, certain claims will be dismissed, with

prejudice, as any amendment would be legally futile. Count 2

(Official Misconduct, in violation of N.J. Stat. Ann. 2C:30-2)

and Count 9 (civil liability for releasing juvenile records of

Plaintiff, in violation of N.J. Stat. Ann. § 2A:4A-60) of the

complaint are brought under statutory schemes that do not

provide for a private right of action. As such, any amendment

to those claims would be legally futile and dismissal of those

counts will be with prejudice. The remaining claims will be

dismissed without prejudice as too factually vague to proceed.

The Court will, therefore, invite Plaintiff to seek leave

to amend those claims dismissed without prejudice pursuant to

Local Civil Rule 7.1. Pursuant to Local Civil Rule 7.1(f), in

moving for leave to file an amended pleading, “the moving party

shall attach to the motion a copy of the proposed pleading or

amendments[.]” L. Civ. R. 7.1(f); Huertas v. Foulke Mgmt.

Corp., No. 17-1891, 2017 U.S. Dist. LEXIS 207234, *13 (D.N.J.

Dec. 18, 2017). “The purpose of L. Civ. R. 7.1(f) is to enable

the movant to identify with precision the proposed manner in

which the pleading is sought to be amended[.]” Kanter v.

Barella, No. 04-5542, 2005 U.S. Dist. LEXIS 28809, *2 (D.N.J.

Nov. 16, 2005) (Simandle, C.J.). Plaintiff shall, therefore,

have thirty (30) days from the date of this Opinion to move to

amend his complaint pursuant to Rule 15 and Local Civil Rule

7.1. Failure to timely move to amend will be viewed as

Plaintiff’s rejection of this Court’s invitation to do so, and

the complaint will be dismissed with prejudice.

CONCLUSION

For the reasons stated above, Defendants’ motions to

dismiss Plaintiff’s complaint (ECF Nos. 7 & 20) will be granted

and the complaint will be dismissed in its entirety, with

prejudice in part and without prejudice in part. Counts 2 and 9

of the complaint will be dismissed with prejudice. All other

remaining counts will be dismissed without prejudice.

Plaintiff’s motion for leave to file a sur reply to the Capehart

Defendants’ motion to dismiss (ECF No. 27) will be granted.

Plaintiff’s motions for injunctive relief and restraining orders

(ECF No. 23, 92, & 123) will be denied as moot, as will

Plaintiff’s motion to compel (ECF No. 25), Plaintiff’s motions

and cross-motions for summary judgment (ECF Nos. 13, 16 & 28),

various other discovery-based motions (ECF Nos. 17, 45, 50, 72,

94, & 103), and Gonter’s motion to quash a subpoena served upon

him by Plaintiff (ECF No. 147). Plaintiff’s motions for default

judgment (ECF Nos. 10 & 15) will be denied, as will Plaintiff’s

motions for sanctions (ECF Nos. 18, 26, 40, 44, 60, & 127).

Such resolves all motions pending before this Court. An

appropriate order will be entered.

s/ Noel L. Hillman

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