# MCBRIDE v. TOWNSHIP OF WASHINGTON

> District Court, D. New Jersey · June 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10268368

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268368

## How later opinions describe it (automated extraction)

- 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.”
- noting reluctance to infer a private right of action from a criminal prohibition alone

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268368. Public record. Not legal advice.