THE ESTATE OF SUZANNE BARDZELL v. GOMPERTS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

THE ESTATE OF SUZANNE

Civ. No. 20-4555 (KM)(ESK)

BARDZELL,

Plaintiff, OPINION

v.

JESSICA GOMPERTS, et al.

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Estate of Suzanne Bardzell seeks reconsideration of this Court’s

January 27, 2021 Order (DE 16)1 dismissing its Amended Complaint against

Defendants the Bergen County Prosecutor’s Office (“BCPO”) and BCPO

Assistant Prosecutor Jessica Gomperts (“AP Gomperts”). For the reasons

provided herein, I will deny Plaintiff’s motion for reconsideration. (DE 17).

I. Summary

The parties’ familiarity with the facts is assumed. This case arises from

an unimaginable tragedy, for which anyone must have sympathy. It is hard to

avoid the conclusion that the authorities should have done better here. Under

the law, however, compensation for the perpetrator’s criminal acts may not be

obtained from the county prosecutor.

On October 5, 2015, former New York Police Department (“NYPD”) Officer

Arthur Lomando broke into the home of Suzanne Bardzell, with whom he had

1 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Am. Compl.” = Plaintiffs’ Amended Complaint (DE 3)

been in a romantic relationship, and threatened to kill her with scissors.

Lomando stalked Bardzell, and she reported various incidents to the police.

The response of the authorities, particularly the BCPO and BCPO Assistant

Prosecutor Jessica Gomperts (“AP Gomperts”), is alleged to have been

inexcusably lax. On October 22, 2015, Lomando murdered Bardzell.

Plaintiff subsequently initiated a civil rights action, alleging a violation of

Bardzell’s right to be free from a state-created danger. The Amended Complaint

alleged, inter alia, that Defendants declined to bring appropriate charges

against Lomando, and did not take other steps that might have prevented him

from harming Bardzell.

On January 27, 2021, this Court granted Defendants’ motion to dismiss

the Amended Complaint, finding that Eleventh Amendment sovereign immunity

bars the claims against the BCPO and AP Gomperts in her official capacity, and

that absolute prosecutorial immunity bars the claims against AP Gomperts in

her individual capacity. Estate of Bardzell v. Gomperts, No. 20-4555, 2021 WL

288090, *8, 15 (D.N.J. Jan. 27, 2021). Plaintiff now seeks reconsideration.

II. Discussion

a. Legal Standard

In the District of New Jersey, motions for reconsideration are governed by

Local Civil Rule 7.1(i). Reconsideration is an “extraordinary remedy,” to be

granted “sparingly.” NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp.

513, 516 (D.N.J. 1996). A party seeking to persuade the court that

reconsideration is appropriate bears the burden of demonstrating one of the

following: “(1) an intervening change in the controlling law; (2) the availability of

new evidence that was not available when the court [issued its order]; or (3) the

need to correct a clear error of law or fact or to prevent manifest injustice.”

Max’s Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999) (internal citation omitted); see also Crisdon v. N.J. Dep’t of Educ.,

464 F. App’x 47, 49 (3d Cir. 2012) (“The purpose of a motion for

reconsideration . . . is to correct manifest errors of law or fact or to present

newly discovered evidence.”) (internal citation omitted). “The Court will grant a

motion for reconsideration only where its prior decision has overlooked a

factual or legal issue that may alter the disposition of the matter.” Andreyko v.

Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014).

b. Plaintiff’s Motion for Reconsideration

On reconsideration, Plaintiff submits that neither sovereign nor

prosecutorial immunity “exonerates a prosecutor who commits willful

misconduct during a criminal investigation, prior to the initiation of criminal

charges.” (DE 17-1 at 3). To that end, Plaintiff submits four reasons why I

should reverse dismissal of the action:

1. Absolute immunity does not apply to a prosecutor’s action taken prior to

the initiation of criminal changes (i.e., at the investigation stage).

2. Absolute immunity does not apply to shield willful misconduct.

3. Eleventh Amendment and absolute prosecutorial immunity raises factual

issues that cannot be decided on a motion to dismiss.

4. To the extent the immunity doctrines exonerate willful misconduct, they

should be revisited.

I will address each argument in turn.

i. Absolute immunity and investigative actions

First, Plaintiff submits that the court “fail[ed] to draw a line” between a

prosecutor’s investigative decisions, which it contends are entitled to only

qualified immunity, and other decisions which constitute prosecutorial

functions. (DE 17-1 at 5-6). As it did before the Court on Defendants’ motion to

dismiss, Plaintiff argues that absolute immunity “does not apply to a

prosecutor’s acts taken prior to the initiation of criminal charges.” (Id.). The

Third Circuit has rejected that very “line” that I am urged to draw: Odd v.

Malone, 538 F.3d 202, 210 (3d Cir. 2008) (“We have rejected bright-line rules

that would treat the timing of the prosecutor's action (e.g. pre- or post[-]

indictment), or its location (i.e. in- or out-of-court), as dispositive.”).

Bright-line rules aside, the Court did discuss the allegedly investigative

nature of AP Gomperts’s conduct and did address the application of immunity

to those acts. Estate of Bardzell, 2021 WL 288090, at *9-14. In analyzing each

alleged action (or inaction), the Court determined that absolute immunity

applied either because the conduct (1) fell within the category of a prosecutor’s

decision whether to initiate a prosecution, (2) concerned the selection or

limitation of criminal charges, or (3) related to the alleged failure of AP

Gomperts to protect Lomando through an order of protection or some other

means. Id. In particular, with respect to AP Gomperts’s alleged failure to collect

sufficient evidence and her instruction to the MPP that “there was no case”

against Lomando, I found that such conduct is closely associated with the

prosecution’s evaluation of the evidence and decision whether to initiate

charges, as opposed to the mere gathering of evidence. Id. at *9 (citing

Kulwicki v. Dawson, 969 F.2d 1454, 1463–64 (3d Cir. 1992) (“The decision to

initiate a prosecution is at the core of a prosecutor's judicial role. A prosecutor

is absolutely immune when making this decision, even where he acts without a

good faith belief that any wrongdoing has occurred.”) (internal citations

omitted)); Fuchs v. Mercer Cty., 260 F. App'x 472, 475 (3d Cir. 2008)

(“Prosecutors enjoy absolute immunity for the decision to initiate a

prosecution, for evaluation of evidence collected by investigators, and even for

failure to conduct adequate investigation before filing charges.”) (internal

citations omitted). Thus, the Court considered and rejected Plaintiff’s argument

that absolute immunity did not apply to AP Gomperts’s mere “investigative”

actions. Id.

In light of the analysis above, Plaintiff’s argument on reconsideration

cannot be that the Court “overlooked” the application of immunity to

“investigative” acts. Instead, Plaintiff disagrees with the Court’s assessment of

those acts, its rejection of the contention that AP Gomperts’s conduct was

merely investigative, and its decision that immunity applied. Mere continued

disagreement is not appropriately addressed on reconsideration. See Andreyko,

993 F. Supp. 2d at 478.

ii. Absolute immunity and willful misconduct

Next, Plaintiff argues that absolute immunity does not apply to a

prosecutor’s willful misconduct. (DE 17-1 at 7). As a threshold matter, I note

that nowhere in the Amended Complaint or in opposition to Defendants’ motion

to dismiss did Plaintiff contend that AP Gomperts’s engaged in willful

misconduct. The closest Plaintiff came to such argument was the allegation

that “Defendants were deliberately indifferent to Bardzell’s safety” and their

actions “revealed willful indifference to Ms. Bardzell.” (Am. Compl. ¶165). And,

in briefing, Plaintiff argued that Defendants were not entitled to sovereign

immunity because they “show[ed] favoritism, bias, and deliberate indifference

to ongoing domestic violence” which “suggests a deviation from classic law

enforcement functions better characterized as aiding and abetting the

deprivation of civil rights.” (DE 10 at 29). However, Plaintiff never went as far

as submitting that Defendants engaged in willful misconduct. (See Am. Compl.;

DE 10). An argument cannot be raised for the first time on reconsideration.

Summerfield v. Equifax Info. Servs. LLC, 264 F.R.D. 133, 145 (D.N.J. 2009).

Nevertheless, in an abundance of caution, I will discuss the merits of Plaintiff’s

newly raised contention.

In support of the contention that absolute immunity does not protect a

prosecutor’s willful misconduct, Plaintiff cites to two provision of the New

Jersey Tort Claims Act (“NJTCA”), neither of which was cited in Plaintiff’s

opposition to Defendants’ motion to dismiss. I also note that the Amended

Complaint does not contain a claim under the NJTCA. (See Am. Compl.).

However, Plaintiff submits that statutory immunity under the NJTCA is

analogous to prosecutorial immunity at common law. (DE 17-1 at 7 n.1). I do

not accept the claimed analogy, let alone the identity, between the two, but I

discuss the NJTCA briefly.

First, Plaintiff cites to N.J.S.A. 59:3-8, which establishes immunity for,

inter alia, the institution of judicial proceedings by a public employee. (DE 17-1

at 7). Then, Plaintiff cites N.J.S.A. 59:3-14(a), which provides that “nothing

shall exonerate a public employee from liability if it is established that his

conduct was outside the scope of his employment or constituted a crime,

actual fraud, actual malice or willful misconduct.” (Id.). Here, Plaintiff contends

that AP Gomperts lost her immunity because her conduct constituted such

fraud, malice, or willful misconduct. (Id. at 7-8). In particular, Plaintiff submits

that AP Gomperts “acted not for legitimate prosecutorial reasons, but rather to

assist Lomando and protect him from legitimate law enforcement efforts by the

police department.” (Id. at 7). Plaintiff, however, runs afoul of federal case law

holding that a prosecutor’s subjective motivation is irrelevant to determining

the application of absolute immunity. Kulwicki, 969 F.2d at 1464

(“Consideration of personal motives is directly at odds with the Supreme

Court’s simple functional analysis of prosecutorial immunity.”). Thus, even

accepting as true Plaintiff’s allegation that AP Gomperts chose not to charge

Lomando based on bias and favoritism, her decision not to initiate charges is

nonetheless protected by absolute immunity. See id.; see also Bernard v. Cty. of

Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (“Where, as in this case, a

prosecutor’s charging decisions are not accompanied by any such

unauthorized demands, the fact that improper motives may influence his

authorized discretion cannot deprive him of absolute immunity.”).

In addition to the NJTCA, Plaintiff relies on Doe v. Phillips, 81 F.3d 1204

(2d Cir. 1994)—a 27-year-old Second Circuit decision which it did not cite in its

original briefing—for the proposition that a prosecutor’s misconduct prevents

the application of absolute immunity. (DE 17-1 at 8). In that case, a prosecutor

instructed the plaintiff that he would dismiss charges against her if she

“sw[ore] to her innocence on a bible in church” Doe. 81 F.3d at 1207. Because

such conduct—demanding that plaintiff swear on a Bible in church—“was

manifestly beyond his authority,” the Second Circuit held that the prosecutor

was not entitled to absolute immunity. Id. at 1211.

The Doe Court “recognized that absolute immunity extends to a

prosecutor’s agreement to forgo prosecution in exchange for certain types of

concessions by the accused.” Id. at 1210. The demand for a religious oath in

church, however, is not one of those permissible “concessions”; it was “plainly

beyond the prosecutor’s jurisdiction,” so immunity did not apply. Id. at 1210-

1211 (internal quotation marks omitted) (quoting Schloss v. Bouse, 876 F.2d

287, 291–92 (2d Cir.1989)). Immunity did not apply precisely because there is

no prosecutorial function that involves compulsion of an oath in church, not

because the prosecutor engaged in “misconduct.” Indeed, Doe itself cited to at

least one case wherein the Second Circuit held that absolute immunity

attached while performing an advocative function regardless of alleged

misconduct. Id. at 1209-1210 (citing Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.

1994) (prosecutor absolutely immune from liability on damages claim that he

conspired to present false evidence at criminal trial)).

Before this Court on Defendants’ motion to dismiss, Plaintiff never

argued that AP Gomperts engaged in conduct outside of her prosecutorial

function or authority. (See DE 10). It is true that Plaintiff argued AP Gomperts

was motivated by her subjective bias and favoritism in failing to prosecute

Lomando. But it was never alleged that Gomperts acted beyond the scope of a

prosecutor’s functions, e.g., by requiring a religious oath. Even now, Plaintiff

alleges that AP Gomperts had improper motives but not that she engaged in

non-prosecutorial conduct. (See DE 17-1 at 7-8 (submitting that AP Gomperts

chose not to charge Lomando “for an improper purpose.”). Plaintiff submits

that AP Gomperts’s actions were based on “personal predilection” or were taken

“for personal reasons” and “not for legitimate law enforcement reasons.” (DE

17-1 at 8). In other words, Plaintiff focuses on the reasons for and motivations

behind AP Gomperts’s actions; she alleges that Gomperts performed

prosecutorial functions in a wrongful manner. Plaintiff does not actually

submit that AP Gomperts engaged in conduct beyond the jurisdiction or

function of a prosecutor. (See DE 17-1). Therefore, Doe is not analogous.

Plaintiff also cites to the Fifth Circuit’s decision in Singleton v.

Cannizzaro, 956 F.3d 773 (5th Cir. 2009). (DE 17-1 at 9). There, the Court held

that prosecutors were not entitled to absolute immunity for the alleged creation

and use of fake subpoenas which were used to bluff or coerce cooperation from

potential witnesses. Such conduct, it found, was merely investigative and more

akin to police work than to the initiation of criminal charges. Id. at 784. The

Court explained:

Based upon the pleadings before us at this time, it could be

concluded that Defendants’ creation and use of the fake subpoenas

was not “intimately associated with the judicial phase of the

criminal process,” but rather fell into the category of “those

investigatory functions that do not relate to an advocate’s

preparation for the initiation of a prosecution or for judicial

proceedings.

Id. at 782 (emphasis added). Thus, contrary to Plaintiff’s assertion, the alleged

“misconduct” of the prosecutor did not factor into the Court’s analysis. In fact,

the Court explicitly stated that, in exercising their advocatory functions,

prosecutors are entitled to immunity even if they engage in willful misconduct.

Id. at 780 (“Prosecutors are absolutely immune even for ‘[w]ilful or malicious

prosecutorial misconduct . . . if it occurs in the exercise of their advocatory

function.’ But by the same token, ‘state prosecutors are not entitled to absolute

immunity when they perform functions other than their quasi-judicial

functions of ‘initiating prosecutions and presenting the State's case.’”) (internal

citations omitted). The point was that these counterfeit “subpoenas,” never

issued by any court, were not truly information-gathering subpoenas at all, but

investigative subterfuges.

As explained in the January 27 Opinion, I found that the allegations in

the Amended Complaint did not involve merely investigative functions. Instead,

the complained-of conduct related to AP Gomperts’s decision (1) not to initiate

criminal proceedings against Lomando, (2) to limit the charges in Bardzell’s

criminal complaint to third-degree offenses, and (3) not to issue a temporary

restraining order or order of protection. Estate of Bardzell, 2021 WL 288090 at

*9-14. Thus, Singleton is not analogous.

Because Plaintiff raises it for the first time on reconsideration and

because Plaintiff failed to demonstrate that the Court made a clear error of law,

I decline to grant reconsideration on the ground that AP Gomperts engaged in

allegedly willful misconduct.

c. Factual issues in determining applicability of immunity

Third, Plaintiff submits that “[o]nly upon completion of discovery, if

Plaintiff is unable to marshal sufficient evidence of willful misconduct, will

absolute immunity operate to exonerate Defendants at the summary judgment

stage of litigation.” (DE 17-1 at 10). This argument fails, in part, for the same

reason Plaintiff’s previous argument fails: if a prosecutor is engaged in an

advocacy function (e.g., if her actions are intertwined with initiating judicial

proceedings, see Odd, 538 F.3d at 208; Giuffre v. Bissel, 31 F.3d 1241, 151),

then her actions are protected by absolute immunity whether or not she

engaged in misconduct. Immunity depends on the nature of the function, not

the rightful or wrongful manner in which it is performed:

To give examples of prosecutorial activities protected by absolute,

as opposed to qualified, immunity, soliciting false testimony from

witnesses in grand jury proceedings and probable cause hearings

is absolutely protected. [citing Bums v. Reed, 500 U.S. 478 (1991)].

Use of the false testimony in connection with the prosecution is

absolutely protected. See id. at 1939 (eliciting false or defamatory

statements from witnesses in a judicial proceeding was immunized

at common law). Even interviews generating evidence to be

presented to a grand jury are absolutely protected. [citing Rose v.

Bartle, 871 F.2d 331 (3d Cir. 1989)] (prosecutor’s solicitation of

testimony for use in grand jury proceedings is “encompassed

within ‘the preparation necessary to present a case’ and therefore

[is] immunized as involving the prosecutors’ advocacy functions.”)

(citation omitted).

Kulwicki, 969 F.2d at 1465.

Indeed, the quote from Hill v. City of New York relied upon by Plaintiff

belies its argument:

[W]hen it may not be gleaned from the complaint whether the

conduct objected to was performed by the prosecutor in an advocacy

or an investigatory role, the availability of absolute immunity from

claims based on such conduct cannot be decided as a matter of

law on a motion to dismiss.

(DE 17-1 at 10 (quoting Hill v. City of New York, 45 F.3d 653, 663 (2d Cir.

1995) (emphasis added). In Hill, discovery was needed not to determine whether

the prosecutor engaged in misconduct but to determine “what function [he] was

engaged in” – i.e., whether he was acting as an investigator or as an advocate –

when he videotaped certain interviews. Hill, 45 F.3d at 663. Thus, it is

irrelevant for purpose of determining whether absolute immunity applies if

Plaintiff can “marshal sufficient evidence of willful misconduct.” It is the

function, not the alleged misconduct, that is dispositive. See, Kulwicki, 969

F.2d at 1465. Ordinarily that function can be gleaned from the face of the

complaint. And indeed, the immunity doctrine is designed to function at the

earliest possible stage; that is its purpose.

The same holds true for Eleventh Amendment immunity. The Eleventh

Amendment has been authoritatively interpreted to mean that states may not

be sued by private parties in federal court without consent. Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984). As analyzed in my prior

opinion, that immunity applies to county prosecutors in their official

capacities, discharging their prosecutorial, as opposed to administrative,

functions. It is an immunity from suit, not an ordinary defense to an action.

Finally, I reiterate that, in the Third Circuit, the subjective motivation of

an individual prosecutor is irrelevant in assessing whether that prosecutor is

entitled to immunity. In Kulwicki, the plaintiff alleged that the defendant

prosecutor initiated criminal proceedings against him for purely political

motives. 969 F.2d at 1463. The Third Circuit noted that determination of

“whether absolute immunity is available for particular actions” is a “‘functional

analysis,” and that consideration of subjective or personal motivation “is

directly at odds” with that functional analysis. Id. at 1463-64. Because,

functionally, the prosecutor was absolutely immune in connection with the

decision to initiate charges, his political motivation in doing so did not matter.

Id. at 1464. As applied here, AP Gomperts’s allegedly improper motive in

declining to prosecute Lomando is a fortiori entirely irrelevant. See id. at 1463-

64 (“The decision to initiate a prosecution is at the core of a prosecutor’s

judicial role. A prosecutor is absolutely immune when making this decision,

even where he acts without a good faith belief that any wrongdoing has

occurred.”); see also Bernard, 356 F.3d at 507 (holding “that a political motive

does not deprive prosecutors of absolute immunity from suit for authorized

decisions made in the performance of their function as advocates.”). Therefore,

discovery is not needed to determine whether any of the alleged misconduct

(bias, favoritism, deliberate indifference) occurred.

d. Validity of current immunity doctrine

Lastly, Plaintiff argues that if immunity exonerates willful misconduct,

then the immunity doctrines should be revisited. (DE 17-1 at 11). To that end,

Plaintiff submits:

Plaintiff concedes that certain judicial opinions appear to cloak all

charging decisions in absolute immunity. See, e.g., Bernard v.

County of Suffolk, 356 F.3d 495, 504 (2004) (holding that

prosecutor engaging in an allegedly politically-motivated

prosecution was nonetheless entitled to absolute immunity, since

the decision to file charges was a prosecutorial function). It is

respectfully averred that these cases were wrongly decided because

the courts failed to draw the proper distinction between

investigatory or administrative functions as opposed to truly

prosecutorial or advocative functions. To the extent these cases

immunize wanton prosecutorial misconduct, then the immunity

doctrines themselves need an overhaul.

(DE 17-1 at 11).

Plaintiff’s argument is misplaced on a motion for reconsideration. The

remedy of reconsideration is to be granted “sparingly” and based only on the

presence of certain factors: “(1) an intervening change in the controlling law; (2)

the availability of new evidence that was not available when the court [issued

its order]; or (3) the need to correct a clear error of law or fact or to prevent

manifest injustice.” NL Indus. Inc., 935 F. Supp. at 516; Max’s Seafood, 176

F.3d at 677.

The alleged invalidity of current Third Circuit jurisprudence is not a

basis on which to grant reconsideration. I am bound by Court of Appeals

precedent unless and until that Court or the Supreme Court should alter it.

The proper channel to assert Plaintiff’s contentions is through appeal.

III. Conclusion

For the reasons set forth above, I will deny Plaintiff’s motion (DE 17) for

reconsideration. An appropriate order follows.

Dated: April 22, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge