BROWN v. CITY OF JERSEY CITY

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES JAMAL BROWN,

Plaintiff,

Civil Action No. 22-2792

v.

AMENDED OPINION & ORDER

CITY OF JERSEY CITY, et al.,

Defendants.

John Michael Vazquez, U.S.D.J.

Plaintiff alleges that he was a victim of unconstitutional racial profiling by multiple Jersey

City police officers. Presently before the Court is Defendants’ motion to dismiss the Second

Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 43.

Plaintiff filed a brief in opposition to the motion, D.E. 46, to which Defendants replied, D.E. 49.1

The Court reviewed the parties’ submissions and decided the motion without oral argument

pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,

Defendants’ motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

For purposes of the instant motion, the Court does not retrace this case’s full factual and

procedural history. This Court’s November 21, 2022 Opinion granting Defendants’ motion to

dismiss the initial complaint includes a detailed recounting of the factual background of this matter.

1 The Court refers to Defendants’ brief in support of their motion (D.E. 43-1) as “Defs. Br.”;

Plaintiff’s opposition (D.E. 46) as “Plf. Opp.”; and Defendants’ reply (D.E. 49) as “Defs. Reply.”

D.E. 30 (the “MTD Opinion”). To the extent relevant to the instant motion, the Court incorporates

the factual and procedural history from the MTD Opinion.

Briefly, Plaintiff pleads that as he was driving home on May 14, 2020, he was pulled over

by multiple Jersey City police officers.2 SAC ¶¶ 12, 18. Defendants Michael Rivera; Shady Azmy;

Dane Coleman; Patrick Egan; Gary Griffin, Jr.; and Gary Huaman, Jr. (the “Officer Defendants”)

approached Plaintiff’s vehicle and then removed Plaintiff from the car. The Officer Defendants

instructed Plaintiff to stand near the rear of the vehicle with his hands on his head while they

searched Plaintiff’s vehicle without consent. Id. ¶¶ 18-19. Plaintiff alleges that during this time,

he believed that he was required to comply with the Officer Defendants’ requests and was not free

to leave. Id. ¶ 20. Immediately before Plaintiff’s purported release, the Officer Defendants told

Plaintiff they stopped him for suspected drug activity near the Hyatt Hotel. Id. ¶ 22. Plaintiff

indicates that he was not near the Hyatt Hotel on May 14. Id. Thus, Plaintiff contends that the

Officer Defendants had no information that would lead a reasonable officer to believe Plaintiff

was engaged in criminal activity before the stop. Plaintiff alleges that prior to the stop, the Officer

Defendants agreed to stop him solely because he is an African American man. Id. ¶¶ 23-24.

After the stop, Plaintiff made an Internal Affairs (“IA”) complaint against the Officer

Defendants. Id. ¶ 25. Defendant George Rotondo investigated the IA complaint and deemed it to

be unfounded. Id. ¶¶ 26-27. Plaintiff alleges that Rotondo failed to conduct a proper investigation.

Id. ¶ 27.

Plaintiff filed his initial Complaint in this matter in 2022. Plaintiff asserted Section 1983,

New Jersey Civil Rights Act (“NJCRA”), and tort claims pertaining to the traffic stop and IA

2 The Court takes the factual background from Plaintiff’s SAC. D.E. 41. When reviewing a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court accepts as true all well-pleaded

facts in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

investigation. D.E. 1. Defendants subsequently filed a motion to dismiss pursuant to Rule

12(b)(6). D.E. 15. This Court granted Defendants’ motion with respect to the Section 1983 claims

and declined to exercise supplemental jurisdiction, pursuant to 28 US.C. § 1367(c)(3), over the

remainder of Plaintiff’s complaint. The Court, however, granted Plaintiff leave to file an amended

pleading that remedied the noted deficiencies with Plaintiff’s federal law claims. D.E. 27, 30.

Plaintiff filed the SAC on April 26, 2023, which includes new factual allegations. D.E. 41.

Defendants then filed the instant motion to dismiss pursuant to Rule 12(b)(6). D.E. 43.

II. LEGAL STANDARD

Rule 12(b)(6) permits a court to dismiss a complaint that fails “to state a claim upon which

relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). For a complaint to survive dismissal under Rule

12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery

will uncover proof of her claims.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir.

2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and

legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements

of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of

truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true” and give a plaintiff the benefit of

all reasonable inferences therefrom. Fowler, 578 F.3d at 210.

III. ANALYSIS

A. Constitutional Violation Claims (Counts One, Two, Five, Six and Eight)

Plaintiff asserts numerous claims under Section 1983 as well as a claim pursuant to the

NJCRA. Section 1983, in relevant part, provides as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides

a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-

94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived

him of a federal right; and (2) the person who deprived him of that right acted under color of state

or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.

14, 2015).

Plaintiff also asserts a NJCRA claim in Count Six. The NJCRA provides a private cause

of action to

[a]ny 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.

N.J. Stat. Ann. § 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey

have consistently looked at claims under the NJCRA through the lens of § 1983 and have

repeatedly construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v.

Fuentes, No. 15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and

citation omitted). The Court, therefore, considers Plaintiff’s Section 1983 and NJCRA claims

together. In addition, the parties do not appear to dispute that Defendants are state actors, so the

Court focuses on the constitutional violation requirement.

Defendants first seek to dismiss Plaintiff’s Counts Five and Six, which are against the City.

Specifically, Defendants argue that Plaintiff’s municipal liability, or Monell claim, is conclusory.

Defs. Br. at 7-12. A municipality may be liable under Section 1983 “if the plaintiff identifies a

municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell v. Ridley

Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C.,

436 U.S. 658, 694 (1978)); see also Meleika v. Bayonne Police Dep’t, No. 21-19793, 2022 WL

522810, at *4 (D.N.J. Feb. 22, 2022) (explaining that for the city to be liable under Section 1983,

the law “would require facts suggesting an unconstitutional municipal policy, practice, or

custom”). A policy exists “when a decisionmaker possessing final authority to establish municipal

policy with respect to the action issues an official proclamation, policy, or edict.” Estate of Roman

v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990)) (internal punctuation omitted). A custom may be established “by

showing that a given course of conduct, although not specifically endorsed or authorized by law,

is so well-settled and permanent as virtually to constitute law.” Id. (quoting Brown v. Muhlenberg

Township, 269 F.3d 205, 215 (3d Cir. 2001)).

A Monell claim may also be premised on a municipality’s failure to train, supervise, and

discipline. To plead a failure-to-train claim, a plaintiff must demonstrate that a city’s failure

“reflects a deliberate or conscious choice.” Id. at 800 (quoting Brown, 269 F.3d at 215). For

claims involving police officers, the alleged failure can only serve as a basis for Section 1983

liability where it “amounts to deliberate indifference to the rights of persons with whom the police

come into contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also

Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019) (explaining that a Monell claim “predicated on

a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a

failure or inadequacy amounting to deliberate indifference on the part of the municipality”).

Deliberate indifference is plausibly pled by showing that “‘(1) municipal policy makers know that

employees will confront a particular situation, (2) the situation involves a difficult choice or a

history of employees mishandling, and (3) the wrong choice by an employee will frequently cause

deprivation of constitutional rights.’” Roman, 914 F.3d at 798 (quoting Doe v. Luzerne County,

660 F.3d 169, 180 (3d Cir. 2011) (internal brackets omitted)).

Plaintiff asserts a failure-to-train municipal liability claim. Plaintiff pleads that Jersey City

police officers, including the Officer Defendants, “regularly engaged in racial profiling.” SAC ¶

28. Plaintiff further pleads that the City was aware of this practice but did nothing to stop it and

failed to discipline officers engaging in the practice. Id. Plaintiff’s allegations, however, are

entirely conclusory. Plaintiff attempts to excuse this shortcoming by alleging that Jersey City is

frequently unwilling to share policing data with the public because of its knowledge of the

problem. SAC ¶ 28. Even if true, the Court would expect additional factual allegations to support

the allegations of profiling and lack of concomitant training. Moreover, as to the data itself,

Plaintiff does not provide a time frame or explain how many times he attempted to obtain data but

was refused. Without these specific allegations, Plaintiff’s failure-to municipal liability claim

fails.

Plaintiff also attempts to plead a Monell claim based on an alleged custom of racial

profiling within the police department. SAC ¶ 54. Plaintiff’s custom-based Monell claim fails for

the same reason. In short, Plaintiff does not provide specific allegations to substantiate his

allegation that Jersey City police officers regularly engaged in a practice of racial profiling. Count

Five and Six, to the extent it is premised on a Monell claim, are dismissed.

In Count One, Plaintiff alleges that the Officer Defendants conducted an unlawful search3

and seizure of Plaintiff and his vehicle, in violation of the Fourth Amendment. SAC ¶ 33. In the

MTD Opinion, the Court determined that the basis of Plaintiff’s Fourth Amendment claim was not

clear and that his allegations were conclusory. MTD Opinion at 7-9. While still not a model of

clarity, Plaintiff appears to plead a Fourth Amendment false imprisonment claim in the SAC.4

Defendants maintain that Plaintiff’s Fourth Amendment claim is still conclusory. Defs. Br. at 16;

Defs. Reply at 10.

To state a Section 1983 false imprisonment claim, a plaintiff must plead facts

demonstrating that (1) “the police lacked probable cause to make an arrest” and (2) “the plaintiff

was detained pursuant to that arrest.” Lozano v. New Jersey, 9 F. 4th 239, 246 (3d Cir. 2021)

(quoting Harvard v. Cesnalis, 973 F.3d 190, 202 (3d Cir. 2020)) (internal brackets omitted).

Plaintiff asserts that the Officer Defendants told Plaintiff he was stopped “for suspected drug

activity near that Hyatt Hotel.” SAC ¶ 22. Plaintiff asserts that he was not in the vicinity of the

hotel. Id. Consequently, Plaintiff plausibly pleads that the Officer Defendants lacked probable

cause to detain Plaintiff.

3 The parties do not address whether Plaintiff plausibly pleads a Fourth Amendment claim based

on an improper search. Accordingly, the Court does not address this issue.

4 Plaintiff also asserts a state law claim for the tort of false imprisonment in Count Three. SAC ¶¶

43-44. Defendants do not seek to dismiss this count.

Turning to the seizure element, in addition to a traditional arrest, a seizure may also occur

“‘when the officer, by means of physical force or show of authority, has in some way restrained

the liberty of a citizen.’” California v. Hodari D., 499 U.S. 621, 625 (1991) (quoting Terry v.

Ohio, 392 U.S. 1, 19 n.16 (1968)) (emphasis in original). The restraint must be “‘willful’ and not

merely the consequence of ‘an unknowing act.’” Brendlin v. California, 551 U.S. 249, 254 (2007)

(quoting Brower v. County of Inyo, 489 U.S. 593, 596 (1989)). When a restraint occurs through a

show of authority rather than physical force, courts apply an objective test to determine whether a

seizure occurred. Specifically, a court considers “‘whether the officer’s words and actions would

have conveyed . . . to a reasonable person’ that he was not free to leave.” United States v. Lowe,

791 F.3d 424, 430 (3d Cir. 2015) (quoting Hodari D., 499 U.S. at 628). “While an officer merely

asking a citizen questions may not be a seizure,” additional factors may turn the questioning into

a seizure. Black v. Montgomery County, 835 F.3d 358, 365 (3d Cir. 2016). For example, certain

“demonstration[s] of authority” such as “‘the threatening presence of several officers, the display

of a weapon by an officer, some physical touching . . . , or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.’” Vargas v. City of

Philadelphia, 783 F.3d 962, 969 (3d Cir. 2015) (quoting United States v. Crandell, 554 F.3d 79,

85 (3d Cir. 2009)). Finally, there must be “submission to the assertion of authority.” Id. at 626.

Submission may “take[] the form of passive acquiescence.” Brendlin, 551 U.S. at 255.

Plaintiff alleges that six officers pulled him over, removed him from his vehicle and made

him stand by the back of his vehicle with his hands on his head. Plaintiff pleads that he “believe[d]

that he was required to comply with the officers’ requests, required to submit to their authority and

could not simply leave the scene whenever he wanted to.” SAC ¶ 21. Plaintiff continues that the

Officer Defendants eventually “released” him, permitting him to leave. Id. Accordingly, Plaintiff

plausibly pleads that the Officer Defendants restrained Plaintiff’s liberty during the traffic stop and

Plaintiff submitted to this restraint. Thus, Plaintiff pleads a Fourth Amendment false imprisonment

claim.

Plaintiff also asserts an equal protection claim in Count One. SAC ¶ 33. Defendants

contend that Plaintiff’s equal protection claim is conclusory. Defs. Br. at 12-14. The Fourteenth

Amendment’s Equal Protection Clause provides that no State shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. Traditionally, to

prevail on an equal protection claim, a plaintiff must allege that he was treated differently than

others who were similarly situated, and that this difference in treatment was the result of intentional

discrimination based on his membership in a protected class, such as religious affiliation or race.

See Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002). Here, Plaintiff alleges that upon

information and belief,5 the Officer Defendants stopped him “for no reason other than the fact that

he is an African American male.” SAC ¶ 23. Plaintiff provides further allegations to substantiate

his claim. As discussed, Plaintiff plausibly pleads there was not probable cause for the stop.

Consequently, it is plausible to infer that no reasonable officer could have believed Plaintiff was

engaged in criminal activity before the stop. The Court, therefore, can infer that the Officer

5 While not raised by Defendants, the Court notes that a plaintiff may plead facts upon information

and belief “where it can be shown that the requisite factual information is peculiarly within the

defendant’s knowledge or control – so long as there are no boilerplate and conclusory allegations

and plaintiffs accompany their legal theory with factual allegations that make their theoretically

viable claim plausible.” McDermott v. Clondalkin Grp., Inc., 649 F. App’x 263, 267-68 (3d Cir.

2016) (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002)

(internal punctuation omitted)). Facts pled on information and belief must “set forth the ‘specific

facts upon which the belief is reasonably based.’” ICU Med., Inc. v. RyMed Techs., Inc., 752 F.

Supp. 2d 486, 488 (D. Del. 2010) (citing Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312,

1328 (Fed. Cir. 2009).

Defendants’ explanation for the traffic stop was merely a pretext, as Plaintiff alleges. Id. As a

result, Plaintiff pleads an equal protection violation.

Next, Defendants argue that Plaintiff’s conspiracy claim should be dismissed because he

fails to plead facts demonstrating an agreement between Defendants or an underlying

constitutional violation. Defs. Br. at 6-7. To plead a civil conspiracy under Section 1983, a

plaintiff must show “that two or more co-conspirators reached an agreement for the purpose of

depriving constitutional rights under color of state law.” Stolinski v. Pennypacker, 772 F. Supp.

2d 626, 646 (D.N.J. 2011). Here, Plaintiff pleads that the Officer Defendants agreed with each

other to stop Plaintiff solely because he was African American. SAC ¶ 24. And as discussed,

Plaintiff sufficiently pleads a Section 1983 equal protection claim. Consequently, Plaintiff

adequately pleads a Section 1983 conspiracy claim.

In the Eighth Count, Plaintiff alleges that Defendant Rotondo failed to conduct an

appropriate investigation into Plaintiff’s IA complaint. Plaintiff alludes to a deprivation of his

liberty but does not set forth the legal basis for his claim. SAC ¶¶ 66-67. In Plaintiff’s state-law

based claims, however, Plaintiff explicitly states that this Court has supplemental jurisdiction over

the claim. See, e.g., FAC ¶ 44 (“Pursuant to 28 U.S.C. § 1367, this Court has pendant jurisdiction

to hear and adjudicate such claims.”). Plaintiff does not include this allegation in Count Eight.

Plaintiff also argues that Rotondo violated his constitutional rights in his opposition brief. Plf.

Opp. at 17. As a result, the Court construes Count Eight as a Section 1983 claim.

A failure to investigate claim is frequently construed as subset of municipal liability. See,

e.g., Forrest, 930 F.3d at 105 (explaining that “a failure or inadequacy by the municipality” is a

basis for a Section 1983 claim against a municipality). But Plaintiff does not assert his failure to

investigate claim as a basis for municipal liability. Rather, Plaintiff appears to assert the claim

against Rotondo individually. SAC ¶¶ 65-66. But the Court is not aware of any cases in which an

individual was held personally liable under Section 1983 for a failure to investigate.6 Plaintiff also

fails to identify any such cases, nor does he explain what constitutional violation such conduct

would amount to. Plaintiff, therefore, does not plead a failure to investigate claim against

Defendant Rotondo. Count Eight is dismissed.

B. Gross Negligence and Willful Misconduct (Count Nine)

Next, Defendants seek to dismiss Plaintiff’s claim for gross negligence and willful

misconduct because it is conclusory. Defs. Br. at 18-19. “Negligence involves a breach of a duty

of care that causes injury.” Roccisano v. Township of Franklin, No. 11-6558, 2013 WL 3654101,

at *11 (D.N.J. July 12, 2013) (citing Weinberg v. Dinger, 542 A.2d 366, 373 (N.J. 1987)). Thus,

“to succeed on a negligence claim, a plaintiff must show: (1) a duty of care, (2) a breach of that

duty, (3) causation, and (4) actual damages.” Id. (citing Weinberg,542 A.2d at 373). As to gross

negligence, “the difference between gross and ordinary negligence is one of degree rather than of

quality.” Smith v. Kroesen, 9 F. Supp. 3d 439, 442 (D.N.J. 2014) (quoting Fernicola v. Pheasant

Run at Barnegat, No. A-2027-08T1, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. July 2,

2010)) (internal quotations omitted). “[W]here as negligence is the failure to exercise ordinary or

reasonable care . . . , gross negligence is the failure to exercise slight care or diligence.” Steinberg

v. Sahara Sam’s Oasis, LLC, 142 A.3d 742, 754 (N.J. 2016). Gross negligence, however, “does

not require willful or wanton misconduct or recklessness.” Id. To that end, “[w]illful misconduct

falls somewhere “between simple negligence and the intentional infliction of harm.” Fielder v.

6 The Court acknowledges that supervisor policymakers may be liable under Section 1983 for their

failure to supervise or investigate subordinates. See Doe ex rel. Doe v. Small, --- F. Supp. 3d ---,

2023 WL 1750405, at *6 (D.N.J. Feb. 2, 2023) (explaining the theories for Section 1983

supervisory liability). Plaintiff does not allege that Rotondo was a supervisor or policymaker, nor

does the failure to investigate claim appear to be premised on a supervisor liability theory.

Stonack, 661 A.2d 231, 242 (N.J. 1995). Although there is not precise definition for willful

misconduct, “in the context of a police officer’s enforcement of the law, . . . willful misconduct is

ordinarily limited to a knowing violation of a specific command by a superior officer, or a standing

order, that would subject that officer to discipline.” Alston v. City of Camden, 773 A.2d 693, 702

(N.J. 2001) (quoting Fielder, 661 A.2d at 243).

The Court agrees that Plaintiff’s gross negligence claim is conclusory. Critically, Plaintiff

simply pleads that the Officer Defendants were grossly negligent but fails to set forth what duty

the Officer Defendants owed to Plaintiff and how their alleged conduct breached that duty.

Plaintiff’s willful misconduct claim is also conclusory. Namely, the SAC does not include

allegations that any Defendant knowingly violated orders when conducting the traffic stop at issue.

While the Court acknowledges that the standard of willful misconduct is not immutable, Plaintiff

makes no effort to explain how any Defendant’s conduct amounts willful misconduct.

Accordingly, Count Nine is dismissed.

C. Negligent Infliction of Emotional Distress (Count Four)

Finally, Defendants argue that Plaintiff fails to state a claim for negligent infliction of

emotional distress. Defendants again maintain that Plaintiff’s claim is conclusory. Defs. Br. at

20-21. A plaintiff must demonstrate the following to plead such a claim: “(a) defendant owed a

duty of reasonable care to plaintiff; (b) defendant breached that duty; (c) plaintiff suffered severe

emotional distress; and (d) defendant’s breach of duty was the proximate cause of the injury.”7

Dello Russo v. Nagel, 817 A.2d 426, 435 (N.J. Super. Ct. App. Div. 2003) (citing Decker v.

7 In arguing that Plaintiff fails to state a claim, Defendants partially rely on the standard for a claim

of bystander negligent infliction of emotional distress. Defs. Br. at 20-21. Bystander liability

applies “if the plaintiff witnessed the death or serious physical injury of another, with whom he

shares a marital or intimate, familial relationship.” Innes v. Marzano-Lesnevich, 87 A.3d 775, 797

(N.J. Super. Ct. App. Div. 2014). Nothing in the SAC suggests that bystander liability is at issue.

Princeton Packet, 561 A.2d 1122, 1128 (N.J. 1989)). To be actionable, “the claimed emotional

distress must be sufficiently substantial to result in physical illness or serious psychological

sequelae.” Jnnes v. Marzano-Lesnevich, 87 A.3d 775, 797 (N.J. Super. Ct. App. Div. 2014)

(quoting Aly v. Garcia, 754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div. 2000)). Plaintiffs claim

is conclusory. For example, Plaintiff pleads that he suffered from “anxiety and mental anguish”

because of Defendants’ conduct, SAC { 48, but fails to include specific allegations to support this

conclusory claim. Accordingly, Count Four is also dismissed.

IV. CONCLUSION

For the foregoing reasons, and for good cause shown

IT IS on this 31st day of July, 2023,

ORDERED that Defendants’ motion to dismiss, D.E. 43, is GRANTED in part and

DENIED in part; and it is further

ORDERED that Defendants’ motion is GRANTED with respect to Counts Four, Five,

Six, Eight and Nine. Accordingly, these counts are dismissed without prejudice; and it is further

ORDERED that with respect to the dismissed counts, Plaintiff is provided thirty (30) days

to file an amended complaint that cures the deficiencies noted herein. If Plaintiff does not file an

amended pleading within that time, these counts will be dismissed with prejudice; and it is further

ORDERED that Defendants’ motion is otherwise DENIED.

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