BERK v. RITZ CARLTON CONDOMINIUM ASSOCIATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JESSICA BERK AND WILLIAM HENRY

KENNEDY, Civ. No. 1:23-cv-1877-NLH-MJS

Plaintiffs, OPINION

v.

RITZ CARLTON CONDOMINIUM

ASSOCIATION, ET AL.

Defendants.

APPEARANCES:

JESSICA BERK

2715 BOARDWALK, UNIT 1511

ATLANTIC CITY, NJ 08401

Appearing pro se

WILLIAM HENRY KENNEDY1

1 This Court notes that there is no address of record for this

pro se Plaintiff. Pro se litigants are responsible for keeping

the Court apprised of their address throughout the litigation.

Local Rule 10.1(a) (“Counsel and/or unrepresented parties must

advise the Court of any change in their or their client’s

address within seven days of being apprised of such change by

filing a notice of said change with the Clerk.”); Hunt-Ruble v.

Lord, Worrell & Richter, Inc., No. 10-4520, 2012 WL 2340418, at

*4 (D.N.J. June 19, 2012) (“Because Defendant Worrell is

proceeding pro se in this action rather than through counsel, he

is directly responsible for his conduct in this litigation,

particularly in his failure to comply with the Court’s Orders

and to advise the Court of any change in his address.”). In

order to proceed in this litigation, Plaintiff William Henry

Kennedy must provide the Court with a current address. This

Appearing pro se

ROBERT ALAN BERNS

KAUFMAN DOLOWICH LLP

25 MAIN STREET, SUITE 500

HACKENSACK, NJ 07601

Counsel for Defendant Ritz Carlton Condominium Association

STANLEY MARAGOUDAKIS

2715 BOARDWALK, APT 1017

ATLANTIC CITY, NJ 08401

Appearing pro se

HILLMAN, District Judge

Before the Court is Defendant Ritz Carlton Condominium

Association’s Motion to Dismiss (ECF 14), Plaintiffs’ Motion to

Amend (ECF 26), and Plaintiffs’ Motion to Permit Consideration

of Reply (ECF 29). For the reasons expressed below, Defendant’s

Motion to Dismiss will be granted in part and denied in part;

Plaintiffs’ Motion to Amend will be granted in part and denied

in part; and Plaintiffs’ Motion to Consider will be granted.

I. BACKGROUND

Plaintiffs are two individuals, Jessica Berk (“Berk” or

“Plaintiff Berk”) and William Henry Kennedy (“Kennedy” or

“Plaintiff Kennedy”) (collectively, “Plaintiffs”). Plaintiff

Berk lives at the Ritz Carlton Condominium building in Atlantic

will be reflected in this Court’s Order accompanying this

Opinion.

City, New Jersey, where she owns a condominium unit. (First

Amended Complaint, ECF 7 at ¶ 14). Plaintiffs do not allege

whether Plaintiff Kennedy lives in the Ritz or elsewhere.

Plaintiffs allege that Kennedy is disabled. (Id. at ¶ 2). Berk

is Jewish and is “visibly disabled.” (Id. at ¶¶ 5–10). She

“walks with a cane or wheelchair for support” and has an

emotional support service animal, previously a dog named

Angeline Jolie and presently a cat named Gemini. (Id. at ¶¶ 2,

23, 76–77). She also has a neurological condition that results

in blackouts and passing out. (Id. at ¶ 24). Berk has a number

of limitations, including that she cannot carry anything over

seven and a half pounds, and she “has problems grasping at

things such a doors or using cards.” (Id. at ¶¶ 26–27). She

receives social security benefits for her disability. (Id. at ¶

11). Plaintiffs aver that Kennedy shares the emotional support

cat. (Id. at ¶ 2).

Defendants are the Ritz Carlton Condominium Association

(“the Ritz” or “Defendant Ritz”), which governs the Ritz Carlton

Condominium building Plaintiff Berk resides in, and Stanley

Maragoudakis (“Maragoudakis” or “Defendant Maragoudakis”),

another resident of the Ritz. (Id. at ¶¶ 14, 16).

Berk alleges that since she has moved into the Ritz,

Maragoudakis has “frequently yelled vulgar discriminatory

language” at her and other tenants. (Id. at ¶ 16). She avers

that he has made offensive comments to her related to her

disability and her membership in the LGBTQ community in addition

to using anti-Jewish epithets. (Id.). She states that he

“attacks seniors and disabled people in the apartment building

and on the Boardwalk.” (Id. at ¶ 17). Berk states that the

comments include death threats against her and others, as well

as against her emotional support cat. (Id. at ¶¶ 21, 28).

Berk explains that these comments and threats are

documented through complaints to the Ritz Carlton Condominium

Association and the Atlantic City Police Department. (Id. at ¶¶

19, 21). Berk details one instance of Maragoudakis threatening

her, explaining that in March 2022, Maragoudakis was stabbed by

another then-resident of the Ritz, Raymond Apponte. (Id. at ¶

35). Upon leaving the hospital after this stabbing, Berk avers

that Maragoudakis threatened to kill her. (Id. at ¶ 36).

Plaintiff Berk alleges that others in the building have

also made death threats towards her service dog, and have

repeatedly insulted her about her disability. (Id. at ¶ 29).

Plaintiff Berk avers that the Ritz has failed to protect

her against Maragoudakis and failed to investigate her

complaints against him. (Id. at ¶¶ 32–33, 39, 41–42).

Plaintiff Berk also alleges that security guards employed at the

Ritz repeatedly mocked her for her disability and would not open

the door for her when she was unable due to her disability.

(Id. at ¶¶ 29–31).

On April 28, 2023, Plaintiff Berk filed her initial

Complaint. (ECF 1). Plaintiffs then filed their First Amended

Complaint on May 30, 2023. (ECF 7). This Amended Complaint

included an additional Plaintiff, Plaintiff Kennedy, although he

had not been a party in the initial Complaint, nor did he pay

his own filing fee.2 On July 7, 2023, Defendant Ritz Carlton

Condominium Association filed a Motion to Dismiss. (ECF 14).

On August 7, 2023, Plaintiffs filed their Response in

Opposition. (ECF 19). Plaintiffs filed an additional Response

on August 11, 2023. (ECF 21). Defendant Ritz filed its Reply

2 Pursuant to Local Civil Rule 54.3, the Clerk shall not be

required to enter any suit, file any paper, issue any process,

or render any other service for which a fee is prescribed,

unless the fee is paid in advance. Under certain circumstances,

however, this Court may permit an indigent plaintiff to proceed

in forma pauperis. The entire fee to be paid in advance of

filing a civil complaint is $405. This includes a $350 filing

fee and $55 administration fee. Although Plaintiff Berk paid a

filing fee when she filed the initial Complaint, Plaintiff

Kennedy must file his own filing fee. Corsey v. Camden Cnty.

Admin., No. 09-2120, 2009 WL 4118111, at *4 (D.N.J. Nov. 17,

2009) (“Before this Court can determine whether joinder is

appropriate, all co-plaintiffs wishing to participate in this

case must submit and sign an amended complaint clearly

identifying each plaintiff and his claims, and they must either

pre-pay the $350 filing fee or each co-plaintiff must submit an

individual application for leave to proceed in forma

pauperis.”).

on August 21, 2023. (ECF 24). On August 28, 2023 Plaintiffs

filed a letter objecting to the Ritz’s Reply brief.3 (ECF 25).

Then, also on August 28, 2023, Plaintiffs filed a Motion

for Leave to File an Amended Complaint. (ECF 26). Defendant

Ritz Carlton filed its Response on September 25, 2023. (ECF

31). Plaintiffs’ Reply was due on October 2, 2023. (ECF 30).

On October 4, 2023, Plaintiffs filed a letter seeking an

extension of that deadline. (ECF 32). On October 8, 2023,

Plaintiffs Filed a Motion to Consider their untimely Reply along

with their Reply. (ECF 33).

On October 13, 2023, Defendant Maragoudakis filed an

Answer.4 (ECF 35). Defendant Maragoudakis then filed additional

letters on October 23, 2023 (ECF 34), November 3, 2023 (ECF 36),

and November 7, 2023 (ECF 38). Although Defendant Maragoudakis

had already filed a document that this Court understands to be

an Answer, the November 7, 2023 letter is titled “Motion to

3 Plaintiffs state that Defendant must seek leave to file a

Reply. However, this is only the case with respect to certain

motions, of which a Motion to Dismiss is not one. Local Civil

Rule 7.1(d)(3). In addition, this Court notes that a party must

seek leave to file a sur-reply, but not a reply. Local Civil

Rule 7.1(d)(6).

4 Although the document is not titled “Answer,” it consists of

numbered paragraphs responding to the allegations in the First

Amended Complaint.

Dismiss.”5 (ECF 38). On November 10, 2023, Plaintiffs filed a

letter responding to Defendant Maragoudakis’ Answer and letters.

(ECF 37). On November 17, 2023, Defendant Maragoudakis filed

another letter. (ECF 39).

The First Amended Complaint, which is the operative

complaint at this time, alleges the following counts: (1)

violations of 42 U.S.C. § 1981 against both named defendants

[Counts I and II]; (2) violations of 42 U.S.C. § 1982 against

both named defendants [Counts III and IV]; (3) violations of 42

U.S.C. § 3617 against both named defendants [Counts V and VI];

(4) fraud and “FHA financial violations” against the Ritz [Count

VII]; (5) violations of the Fair Housing Act against both named

defendants [Counts VIII and IX]; (6) Negligent Infliction of

Emotional Distress against the Ritz [Count X]; (7) “Negligent

Infliction of Emotional Distress, FHA Service animal, and

Emotional Support Animal violations” against the Ritz [Count

5 Although this Letter is titled “Motion to Dismiss” and asks the

Court to dismiss the Counts against him, this Court does not

construe this filing as a formal Motion to Dismiss as it does

not set out any of the reasons for dismissal enumerated in

Federal Rule of Civil Procedure 12(b) nor does it cite to this

rule. Rather, in this Letter Defendant Maragoudakis reiterates

many of the factual points and denials he set out in his initial

responsive filing and adds a few additional factual points.

There is no legal argument contained in this filing, only

factual discussion not suitable for the Motion to Dismiss phase.

From Defendant Maragoudakis’ multiple letters to this Court it

appears there are many factual disputes. These factual disputes

will be addressed at a later phase of the litigation.

XI]; Breach of Contract against the Ritz [Count XII]; (8)

Intentional Infliction of Emotional Distress against both named

Defendants [Count XIII]; (9) Invasion of Privacy against “Ritz

Carlton Condominium Association Employees and the Does 1–20”

[Count IVX6]; and (10) Intentional Infliction of Emotional

Distress against the Ritz and “the Doe Defendants” [Count VX].

II. SUBJECT MATTER JURISDICTION

This Court has subject matter jurisdiction pursuant to 28

U.S.C. § 1331 in that Plaintiffs assert at least one violation

of federal law against each of the named Defendants, as well as

under § 1367.

III. LEGAL STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

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

must accept all well-pleaded allegations in the complaint as

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

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). 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).

6 This Court notes that it has labeled the Counts using the

labels Plaintiffs used in the First Amended Complaint, rather

than adjusting the Count numbers to how they would appear next

in Roman Numeral chronology.

“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 [her]

‘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) (first alteration added) (second alteration

in original) (citation omitted).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when 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) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted). A court in reviewing

a Rule 12(b)(6) motion must only consider the facts alleged in

the pleadings, the documents attached thereto as exhibits, and

matters of judicial notice. S. Cross Overseas Agencies, Inc. v.

Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

“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).

IV. DISCUSION OF MOTION TO DISMISS

A. Violations of 42 U.S.C. § 1981 against both named

defendants [Counts I and II]

In Counts I and II, Plaintiffs allege violations of 42

U.S.C. § 1981. Title 42, Section 1981(a) states that “[a]ll

persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full

and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.” §

1981(b) defines the language “make and enforce contracts” as

“the making, performance, modification, and termination of

contracts, and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.”

Although § 1981 protects against discrimination based on

race, “[t]he Supreme Court, however, has taken an expansive view

of the notion of race as it relates to § 1981 claims in view of

contemporaneous legislative history from a period when race,

national lineage, ancestry and ethnicity were often conflated.”

Powell v. Indep. Blue Cross, Inc., No. 95-2509, 1997 WL 137198,

at *6 (E.D. Pa. Mar. 26, 1997) (holding that Ҥ 1981 must be

read to encompass discrimination against a plaintiff because of

his Jewish ancestry or ethnicity.”). “To establish a right to

relief under § 1981, a plaintiff must show (1) that he belongs

to a racial minority; (2) ‘an intent to discriminate on the

basis of race by the defendant; and (3) discrimination

concerning one or more of the activities enumerated in’ § 1981,

including the right to make and enforce contracts.” Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir.

2002) (quoting Brown v. Phillip Morris, Inc., 250 F.3d 789, 797

(3d Cir. 2001)).

Defendants Ritz argues that Plaintiffs cannot state a claim

under § 1981 because they do not allege discrimination on the

basis of race. (ECF 14-2 at 18). Defendant Ritz notes that

“Courts interpret race broadly under Section 1981 to include

race, color, ancestry, and ethnic characteristics,” and

acknowledges Berk’s averment that she is Jewish, but still

concludes that “[s]he does not allege discrimination on the

basis of race.” (ECF 14-2 at 17–18). As for Plaintiff Kennedy,

Defendant asserts that “there is no allegation about his

religion and no allegation that he is a member of a protected

class under § 1981.” (Id.).

Plaintiffs respond by pointing to cases in which Courts

have explained that discrimination on the basis of ancestry or

ethnic characteristics fall under the protections of § 1981.

(ECF 19 at 6–7 (citing St. Francis College v. Al–Khazraji, 481

U.S. 604, 613 (1987); Bachman v. St. Monica’s Congregation, 902

F.2d 1259, 1261 (7th Cir. 1990); United States v. Brown, 49 F.3d

1162, 1166 (6th Cir. 1995)). Plaintiff also explains that

“Jessica Berk is being discriminated against as a disabled

person, as a member of the LGBTQAI (sexual orientation), and as

a member of Jewish Ancestry (race), as well as William Kennedys,

is being discriminated for being Hispanic disabled (race) and of

Jewish Ancestry (race)” and suggests that she may file an

amended complaint if these details are unclear from the First

Amended Complaint. (ECF 19 at 6).

Defendant Ritz argues that this Court should not consider

alleged facts presented for the first time in Plaintiffs’

responsive briefing. (ECF 24 at 10–11). It points specifically

to the new information about both Plaintiffs’ protected class

status. (Id. at 11). This Court notes that the allegations

about Plaintiff Kennedy’s race are new to this briefing. “It is

axiomatic that the complaint may not be amended by the briefs in

opposition to a motion to dismiss.” Commw. of Pa. ex. rel

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988) As

such, in examining this Motion to Dismiss Plaintiff Kennedy’s

race is not part of the analysis. Because § 1981 protects

against racial discrimination, and the Amended Complaint lacks

any allegations about Plaintiff Kennedy’s race, these Counts

will be dismissed as brought by Plaintiff Kennedy against the

Ritz.

Defendant argues that there are no allegations in the

Amended Complaint that allege racial discrimination in support

of the § 1981 claims brought by Plaintiff Berk. However, in the

First Amended Complaint, Plaintiffs allege that “[p]ursuant to

the Fair Housing Act, § 1981 and § 1982, upon receiving notice

of Mr. Maragoudakis’s harassing conduct towards Ms. Berk, the

Defendant had an obligation to investigate and to take prompt

and effective remedial action. The Defendant’s toleration

and/or facilitation of Mr. Maragoudakis’s disability anti-jewish

harassment created a hostile living environment and violated

these statutory provisions.”7 (ECF 7 at ¶ 108).

Jewish identity may fall within the protections against

race discrimination under § 1981. Powell v. Indep. Blue Cross,

Inc., No. 95-2509, 1997 WL 137198, at *6 (E.D. Pa. Mar. 26,

1997) (Ҥ 1981 must be read to encompass discrimination against

7 In support of the § 1981 claims, Plaintiffs also allege that

Defendants created a hostile environment based on Plaintiff

Berk’s disability. (ECF 7 at ¶¶ 122–126). This Court notes

that any allegations related to Plaintiffs’ alleged disabilities

are unrelated to the § 1981 claims, which protect against

discrimination on the basis of race.

a plaintiff because of his Jewish ancestry or ethnicity.”).

Courts in the Third Circuit have found that while § 1981 does

not protect against religious discrimination, it does protect

against discrimination based on Jewish ancestry. Id. at *7 (“a

plaintiff does not state a § 1981 claim by alleging that a

defendant discriminated against him because of his adherence to

or practice of the Jewish religion. Plaintiff, however, alleged

that his ‘race’ is Jewish. If plaintiff can prove that he is an

ancestral Jew, he may be able to sustain a § 1981 claim on that

basis.”); A. & M. Wholesale Hardware Co. v. Circor

Instrumentation Techs., Inc., No. 13-0475, 2014 WL 714938, at *6

(D.N.J. Feb. 24, 2014) (“The Amended Complaint’s allegations of

the anti-Semitic slurs coupled with A & M’s apparent success in

distributing Hoke’s products, sufficiently plead a violation of

§ 1981.”) (citation omitted).

Defendant points to the paragraphs under the Counts I and

II headings and states that “none of the allegations relating to

Defendant Maragoudakis or Defendant Ritz relate to or address

discrimination based upon race as prohibited by 42 U.S.C. §

1981.” (ECF 14-2 at 19). Instead, it notes that Plaintiffs

refer to discrimination based on disability. However, in

support of these claims, Plaintiffs incorporate the prior

paragraphs by reference. (ECF 7 at ¶ 121). While it appears

earlier in the First Amended Complaint, Plaintiff Berk does

connect her § 1981 claim to her Jewish identity, complaining of

“anti-[J]ewish harassment.” (ECF 7 at ¶ 108). Although the

First Amended Complaint does not specify whether she is

referring to her religion or ancestry in describing the alleged

discrimination based on her being Jewish, there is enough here

to allege that she is protected under § 1981 at this stage.

That said, Defendant Ritz asserts that the allegations

against the Ritz do not constitute a violation under § 1981.

Defendant Ritz explains that “Plaintiffs also assert Plaintiff

Berk was subjected to Defendant Maragoudakis egregious

harassment and conduct and Defendant Ritz failed to investigate

which violated her rights and created a hostile living

environment. However, Plaintiffs fail to assert how the alleged

failure to intervene constitutes a violation under the FHA.”

(ECF 14-2 at 18) (citation omitted) (emphasis in original).

Defendant argues that the allegations do not “relate to or

address discrimination based upon race as prohibited by 42

U.S.C. § 1981.” (Id. at 19). Whereas § 1981 prohibits racial

discrimination in the context of contracts, “the basis for the

discrimination claims principally arise from Plaintiffs

interactions and encounters with another resident of Defendant

Ritz who allegedly discriminated against Plaintiffs on the basis

of their disabilities.” (Id. at 8). This Court agrees that

from the facts alleged Plaintiff Berk has failed to explain how

the alleged conduct from other tenants implicates any

contractual relationship between her and the Ritz.

Discrimination under § 1981 must be intentional

discrimination based on race. Gen. Bldg. Contractors Ass’n,

Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) (“We conclude,

therefore, that § 1981, like the Equal Protection Clause, can be

violated only by purposeful discrimination.”). The First

Amended Complaint does not allege intentional discrimination by

the Ritz in their alleged failure to investigate the conduct of

Defendant Maragoudakis.

Next, the alleged discrimination must concern “one or more

of the activities enumerated in’ § 1981, including the right to

make and enforce contracts.” Pryor, 288 F.3d at 569 (quoting

Brown, 250 F.3d at 797). As noted above, the right to make and

enforce contracts includes “the making, performance,

modification, and termination of contracts, and the enjoyment of

all benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C. § 1981(b). Plaintiff Berk

does not allege any term or condition of any contract that

requires the Ritz to investigate the behavior of other residents

nor protect one resident from another. Plaintiff Berk has

failed to allege discrimination concerning the activities

protected by and enumerated in § 1981.

Because Plaintiff Berk has not alleged intentional

discrimination related to her contract with the Ritz and has not

alleged any discrimination concerning her right to make and

enforce her contract, Plaintiff Berk has not established a

violation of § 1981 against the Ritz sufficient to withstand a

Motion to Dismiss.

Accordingly, Plaintiffs’ § 1981 claims, Counts I and II,

will be dismissed against Defendant Ritz.

B. Violations of 42 U.S.C. § 1982 against both named

defendants [Counts III and IV]

As noted above, Plaintiffs allege that “[p]ursuant to the

Fair Housing Act, § 1981 and § 1982, upon receiving notice of

Mr. Maragoudakis’s harassing conduct towards Ms. Berk, the

Defendant had an obligation to investigate and to take prompt

and effective remedial action. The Defendant’s toleration

and/or facilitation of Mr. Maragoudakis’s disability anti-jewish

harassment created a hostile living environment and violated

these statutory provisions.” (ECF 7 at ¶ 108).

In support of the § 1982 claims, Plaintiffs also allege

that Defendants created a hostile environment based on Plaintiff

Berk’s disability and age. (ECF 7 at ¶¶ 128–134). This Court

notes that any allegations related to Plaintiffs’ alleged

disabilities and age are unrelated to the § 1982 claims, which

protect against discrimination on the basis of race.

Defendant again asserts that Plaintiffs have not alleged

race-based discrimination under § 1982. As set out above, there

are no allegations about Plaintiff Kennedy’s race in the First

Amended Complaint. Accordingly, Plaintiff Kennedy’s § 1982

claim against the Ritz will be dismissed. As with § 1981,

Plaintiff Berk has tied the allegedly discriminatory conduct to

her Jewish identity, which may constitute race discrimination

under § 1982 as well. That said, Defendant Ritz asserts that

Plaintiffs’ allegations that the Ritz “tolerated and

facilitated” Defendant Maragoudakis’ behavior in using

discriminatory language and anti-Jewish epithets does not create

a cognizable claim under § 1982. (ECF 14-2 at 20).

42 U.S.C. § 1982 states that “[a]ll citizens of the United

States shall have the same right, in every State and Territory,

as is enjoyed by white citizens thereof to inherit, purchase,

lease, sell, hold, and convey real and personal property.”

There is not a single allegation in Plaintiffs’ complaint that

they were prevented from inheriting, purchasing, leasing,

selling, holding, or conveying property. Accordingly, Counts

III and IV must be dismissed against Defendant Ritz.

C. Violations of 42 U.S.C. § 3617 against both named

defendants [Counts V and VI]

Title 42, United States Code, Section 3617 provides that

“[i]t shall be unlawful to coerce, intimidate, threaten, or

interfere with any person in the exercise or enjoyment of, or on

account of his having exercised or enjoyed, or on account of his

having aided or encouraged any other person in the exercise or

enjoyment of, any right granted or protected by section 3603,

3604, 3605, or 3606 of this title.” Sections 3603 and 3604 of

Title 42 relate to the prohibition of discrimination in the sale

or rental of housing. § 3605 relates to residential real estate

transactions, which includes making or purchasing real estate

loans and selling, brokering, or appraising residential real

property. Finally, § 3606 relates to the provision of real

estate brokerage services.

Defendant Ritz argues that “Plaintiff fails to allege that

Defendant’s conduct violated any of the specific provisions

outlined in § 3617.” (ECF 14-2 at 23). The Ritz explains why

each provision does not apply:

Specifically, § 3603 and § 3604 do not apply

to the instant facts. Plaintiff Berk owns

her unit; she was not hindered in her

ability to purchase. Section 3605 is not

triggered because Plaintiff Berk has owned

her unit since 2019, and there is no

residential real estate transaction at

issue. Finally, § 3604 does not apply

because Plaintiffs are neither real estate

agents nor brokers, and the Multiple Listing

Service or any similar entity is not

involved.

(ECF 14-2 at 23).

Plaintiffs respond that “[a] Fair Housing Act interference

claim does not require a substantive violation of the

discrimination provisions of the FHA” and “[i]nterference under

Section 3617 may consist of harassment, provided that it is

‘sufficiently severe or pervasive’ as to create a hostile

environment.” (ECF 19 at 9, 11) (emphasis in original).

Pointing to the allegations in the First Amended Complaint,

Plaintiff Berk argues that she was harassed by employees of the

Ritz circulating a photo of her passed out outside of the

building. (Id. at 9). She also alleges that she was barred

from reviewing her accommodation requests. (Id. at 10).

In the First Amended Complaint, Plaintiffs allege that

“Defendant Ritz Carlton Condominium Association tolerated and/or

facilitated Mr. Maragoudakis’s pattern of disabled abuse

conduct, despite repeated specific requests to investigate Mr.

Maragoudakis and intervene on behalf of Ms. Berk.” (ECF 7 at ¶

136). Plaintiffs further assert that Defendant Maragoudakis’

conduct and the Ritz’s toleration of the same conduct interfered

with “Ms. Berk’s right to use and enjoy her home, after the

assertion of her civil rights.” (Id. at ¶¶ 138–39). Plaintiffs

also refer to the alleged incident in the Amended Complaint

during which Ritz employees circulated photos of Plaintiff Berk.

(ECF 7 at ¶¶ 98–99). The Amended Complaint does not include

allegations that she was barred from reviewing her accommodation

requests. It does however allege instances of staff not letting

Plaintiff Berk in the building when she was unable to open the

door and “charging the plaintiff for entry into her building for

not being able to use the key card due to her disability and

other harassment, Ms. Berk was unable to fully use and enjoy the

Premises despite having met her financial obligations each

month.” (ECF 7 at ¶¶ 29, 118).

There are no allegations related to Plaintiff Kennedy in

support of this claim, and accordingly Plaintiff Kennedy’s

claims under § 3617 will be dismissed against Defendant Ritz.

“A Section 3617 interference claim requires proof of three

elements: (1) that the plaintiff exercised or enjoyed ‘any right

granted or protected by’ Sections 3603–3606; (2) that the

defendant’s conduct constituted interference; and (3) a causal

connection existed between the exercise or enjoyment of the

right and the defendant’s conduct. 42 U.S.C. § 3617.” Revock v.

Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 112–13 (3d Cir. 2017).

A claim under § 3617 “does not require a substantive violation

of Sections 3603–3606.” Id. at 112. Rather, a plaintiff can

also support a claim for a violation of § 3617 where a

defendant’s actions interfere with a plaintiff’s enjoyment of

his or her housing obtained under the protections of Sections

3603 through 3606. Raab Fam. P’ship v. Borough of Magnolia, No.

08-5050, 2009 WL 361135, at *5 (D.N.J. Feb. 13, 2009) (“[I]n

order to prevail on a § 3617 claim, the plaintiff must show that

(1) he is a protected individual under the FHA, (2) he was

engaged in the exercise or enjoyment of [his] fair housing

rights, (3) Defendants were motivated in part by an intent to

discriminate, or their conduct produced a disparate impact, and

(4) Defendants ... interfered with Plaintiff on account of [his]

protected activity under the FHA.”).

“Interference under Section 3617 may consist of harassment,

provided that it is ‘sufficiently severe or pervasive’ as to

create a hostile environment.” Revock, 853 F.3d at 113.

Moreover, § 3604 “also makes it unlawful, in the case of

disabled persons, to refuse ‘to make reasonable accommodations

in rules, policies, practices, or services, when such

accommodations may be necessary to afford such person equal

opportunity to use and enjoy a dwelling.’ 42 U.S.C. § 3604(f)(3)

(B).” Mitchell v. Walters, No. 10-1061, 2010 WL 3614210, at *5

(D.N.J. Sept. 8, 2010).

First, this Court expresses its skepticism that the alleged

single instance of Ritz staff passing around photographs of

Plaintiff Berk passed out supports the § 3617 claim or that

Ritz’s alleged failure to intervene against Defendant

Maragoudakis’ alleged behavior would be sufficiently severe or

pervasive. See Lawrence v. Courtyards at Deerwood Ass’n, Inc.,

318 F. Supp. 2d 1133, 1144–45 (S.D. Fla. 2004) (“A failure to

act does not rise to the level of the egregious overt conduct

that has been held sufficient to state a claim under section

3617.”).

However, the allegation in the First Amended Complaint that

Ritz staff refuse to let her in the building when she is unable

to swipe in due to her disability and the allegation that

Plaintiff Berk was charged fees for staff letting her in the

building when she was unable to use her key card may support a

claim under § 3617 when coupled with other allegations. Based

on these allegations, Plaintiff Berk’s claims against Defendant

Ritz under § 3617 will be permitted to proceed. Defendant’s

Motion to Dismiss will be denied on these counts as to Plaintiff

Berk.

Accordingly, Counts V and VI remain against Defendant Ritz

on behalf of Plaintiff Berk.

D. Fair Housing Action Violations in Counts VII, VIII, IX

Defendant next asserts that Plaintiffs fail to state a

claim under the Fair Housing Act, as stated in Counts VII, VIII,

and IX because “Plaintiffs generically assert violations of the

FHA but fail to articulate or cite to the specific provision of

the FHA which outlines the protections to which Defendant is

alleged to have violated.” (ECF 14-2 at 9). Accordingly,

Defendant argues that “as a matter of pleading sufficiency,

these counts of the First Amended Complaint fail.” (Id.). This

Court will address this argument with respect to each count.

i. Fraud and “FHA financial violations” against Ritz

Carlton Condominium Association [Count VII]

Defendant does not make any further substantive argument on

this Count other than to state that it is insufficient for

failing to point to a specific provision of the Fair Housing

Act.

The First Amended Complaint alleges in support of this

Count that “[t]he Defendant must not charge anyone any charges

that are not correct especially to a protected person who is

disabled that has difficulties, this includes fraudulent

charges. . . . It is the obligation of the Defendant . . . not8

to investigate any overbilling and explain the findings to any

Tenant especially a disabled one in a way that they can

understand.” (ECF 7 at ¶ 109). Plaintiff Berk further alleges

that “Defendant has billed Plaintiff for charges that do not

exist, do not give Jessica Berk an accounting, thereby taking

advantage of her disability in violation of the FHA which has

protections against financial fraud, and financial

discrimination protections.” (ECF 7 at ¶ 142).

8 Plaintiff Berk inserts the word “not” here which appears to be

a typographical error.

She further alleges that non-disabled tenants are treated

differently in that they are provided with clear accountings and

explanations of charges. (Id. at ¶ 143). Plaintiff alleges

that she has sought an accounting multiple times to no avail.

(Id. at ¶¶ 51–53). Plaintiff Berk also alleges that she “was

charged late fees because she mailed her maintenance checks

before the 10th of each month. Still, the mail arrived late

which was no fault of her own.” (ECF 7 at ¶ 94). She further

states that she has issues with writing letters, and requested

to deliver her checks by hand, which other non-disabled tenants

were permitted to do; however, she was denied this request

initially. (Id. at ¶¶ 93–96). Although she ultimately was

permitted to hand deliver her maintenance checks, in the interim

she accrued over $400 in late fees. (Id. at ¶ 97).

As defendant noted, Plaintiff does not tie this to any

specific section of the Fair Housing Act. This Court

understands this Count as alleging both common law fraud and a

violation of the FHA. Although Plaintiff does not point to a

specific section of the FHA in support of these allegation,

Plaintiff Berk has alleged interference and failure to

accommodate in violation of § 3617 of the FHA. See Mitchell v.

Walters, No. 10-1061, 2010 WL 3614210, at *5 (D.N.J. Sept. 8,

2010).

As for the allegation of common law fraud, Defendant Ritz

does not set forth any argument as to common law fraud. As

such, this Count will proceed on behalf of Plaintiff Berk

against the Ritz. There are no allegations related to Plaintiff

Kennedy in this Count, and as such to the extent these Counts

are raised by Plaintiff Kennedy they will be dismissed against

the Ritz.

ii. Violations of the Fair Housing Act against both

named defendants [Counts VIII and IX]

Plaintiffs allege that the Ritz “tolerated and/or

facilitated” conduct from Defendant Maragoudakis as well as from

agents of the Ritz. Specifically, “Defendant tolerated and/or

facilitated Mr. Maragoudakis’s pattern of disabled abusive

conduct, despite repeated specific requests to investigate Mr.

Maragoudakis and intervene on behalf of Ms. Berk” and that

“Defendant tolerated and/or facilitated its pattern of disabled

abusive conduct, despite repeated specific requests to

investigate its agents and policies and intervene on behalf of

Ms. Berk.” (ECF 7 at ¶¶ 147, 150).

Defendant argues that “Plaintiffs similarly fail to specify

how any alleged failure to investigate the conduct of []

Maragoudakis . . . constitutes discrimination on the basis of

their alleged membership in a protected class, or how Defendant

Ritz is responsible for conduct of another defendant off

premises.” (ECF 24 at 5 (emphasis in original)).

Without the benefit of Plaintiffs pointing to any specific

provision of the Fair Housing Act, this Court construes these

counts as duplicative of Counts V and VI, which also assert

violations of § 3617, and are therefore dismissible by the Court

on those grounds. Mackachinis v. McCosar Mins., Inc., No. 12-

2012, 2013 WL 1752472, at *3 (M.D. Pa. Apr. 23, 2013) (“ample

authority supports this court’s discretion to dismiss

duplicative counts of a complaint. See, e.g., Brown & Brown,

Inc. v. Cola, 745 F.Supp.2d 588, 626–27 (E.D. Pa. 2010)

(dismissing a count where it was ‘nothing more than duplicative’

of other counts in a complaint); Caudill Seed & Warehouse Co.,

Inc. v. Prophet 21, Inc., 123 F.Supp.2d 826, 834 (E.D. Pa. 2000)

(dismissing a count that ‘merely duplicates’ another count).”).

As such, Counts VIII and IX will be dismissed against both

Defendants and any allegations set forth under these Counts will

be considered under Counts V and VI.

E. Negligent Infliction of Emotional Distress against the

Ritz Carlton Condominium Association [Counts X and XI]

Plaintiff Berk asserts negligent infliction of emotional

distress due to the Ritz charging fees for her service dog and

emotional support cat, failing to investigate death threats

against Plaintiff’s service dog and emotional support cat, and

“[w]anting to evict a service dog and emotional support cat.”

(ECF 7 at ¶¶ 157–160). Plaintiff Berk states that “[t]he

Defendant’s failure to investigate and intervene in response to

Mr. Maragoudakis’s violent death threats toward Ms. Berk and her

service dog “Angelina Jolie” and emotional support cat “Gemini”

constitutes extreme and outrageous conduct and caused Ms. Berk

severe emotional distress.” (ECF 7 at ¶ 155). Plaintiffs also

assert that the Ritz “has threatened to evict the Plaintiffs

[because of] the emotional support cat.” (ECF 7 at ¶ 81).

While Count X focuses on the alleged failure to intervene and

investigate death threats, Count XI focuses on the alleged

threats of eviction and fees related to the service and

emotional support animals.

First, this Court notes that there are no allegations in

the First Amended Complaint with respect to Plaintiff Kennedy

and negligent infliction of emotional distress. Thus, his claim

for negligent infliction of emotional distress against Defendant

Ritz will be dismissed.

Claims for negligent infliction of emotional distress are

characterized as either direct claims or indirect claims. In a

direct claim for negligent infliction of emotional distress “a

person who is the direct object of a tortfeasor’s negligence

experiences severe emotional trauma as a result of the

tortfeasor’s negligent act or omission.” Gendek v. Poblete, 654

A.2d 970, 972 (N.J. 1995). In an indirect claim “a person, not

otherwise a direct object of a tortfeasor’s negligence,

experiences severe emotional distress when another person

suffers serious or fatal injuries as a result of that

negligence.” Id. This Court will first address Plaintiff

Berk’s direct claim and then address the indirect claim.

Plaintiff Berk alleges a direct claim of negligent

infliction of emotional distress, stating that the Ritz’s

failure to investigate death threats against her caused her

severe emotional distress. Plaintiff also alleges that charging

fees for her emotional support animals, and threatening eviction

if those fees are not paid has caused her emotional distress.

(ECF 7 at ¶¶ 157, 159, 160).

As to the direct negligent infliction of emotional distress

claims, Defendant argues that there is no duty of care as “no

landlord tenant relationship exists as Plaintiff Berk is a fee

simple owner of her condominium unit.” (ECF 14-2 at 9). In

addition, the conduct alleged by the Plaintiff (overcharging,

failure to investigate, and illegal policies towards service

animals) simply does not rise to the level of severe or

outrageous.” (Id. at 33).

In order to maintain a direct claim, “[t]he analysis of

direct claims of negligent infliction of emotional distress

‘involves traditional concepts of duty, breach and causation’

and ‘determining defendant’s negligence depends on whether

defendant owed a duty of care to the plaintiff, which is

analyzed in terms of foreseeability.’” Sporn v. Ocean Colony

Condo. Ass’n, 173 F. Supp. 2d 244, 254 (D.N.J. 2001) (quoting

Williamson v. Waldman, 696 A.2d 14 (1997).).

In addressing whether Plaintiff Berk has sufficiently plead

a direct claim, this Court must examine whether the Ritz owes a

duty to Plaintiff. “Whether defendants owed a duty of care to

plaintiffs is a matter of law to be determined by a court.”

Goodman v. Shore Club Condo. Assoc., No. 17-2226, 2018 WL

4347382, at *5 (D.N.J. Sept. 10, 2018). Defendant’s assertion

that there is no duty of care because there is no landlord-

tenant relationship ignores the fact that there is a

relationship between a condominium association and its

residents. New Jersey designates duties of a condominium

association to its residents by statute. N.J. Stat. Ann. §

46:8B-14. The statutorily provided for duties include

responsibility for maintenance, repair, replacements, cleaning,

and sanitation of common areas; assessment and collection of

funds for common expenses; “adoption, distribution, amendment

and enforcement of rules governing the use and operation of the

condominium”; maintenance of insurance against loss by fire or

other casualties and against liability for personal injury or

death; maintenance of accounting records as well as record of

receipt and expenditures; maintenance of an account for each

unit setting forth shares of common expenses or other charges.

This list is not exhaustive, as “[s]uch other duties . . . may

be set forth in the master deed or bylaws.” N.J. Stat. Ann. §

46:8B-14(i).

While the Ritz could include rules governing interpersonal

conflict between residents as part of its duty to amend and

enforce rules governing the use and operation of the

condominium, Plaintiffs have not pointed to any such rule.

Plaintiffs point to sections of the Master Deed and the

Associations Rules and Regulations that prohibit residents from

engaging in obnoxious or offensive activities; however, while

the sections Plaintiffs cite create a code of conduct for

residents, the language does not impose a duty upon the Ritz to

enforce this rule in a particular way. As such, although there

is a special relationship between Plaintiff Berk and the Ritz

and the Ritz may accordingly have a duty of care, Plaintiff has

not sufficiently demonstrated that the Ritz had a duty to

intervene in another resident’s behavior towards Plaintiff Berk.

Plaintiff’s allegation that Defendant Ritz breached a duty

to her in overcharging certain fees is supported by the duties

set forth in the Condominium Act, as the Ritz is responsible for

“[t]he assessment and collection of funds for common expenses

and the payment thereof.” That said, assuming, without finding,

that Defendant Ritz had a duty not to overcharge Plaintiff, and

breached that duty by overcharging her, Plaintiff has not allege

sufficient facts to demonstrate that this breach resulted in

severe emotional distress. “Plaintiffs’ ‘claimed emotional

distress must be sufficiently substantial to result in physical

illness or serious psychological sequelae.’” Raciti v. Rushmore

Loan Mgmt. Servs., LLC, 412 F. Supp. 3d 462, 471 (D.N.J. 2019)

(quoting Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 237,

87 A.3d 775 (App. Div. 2014), aff’d, 224 N.J. 584, 136 A.3d 108

(2016).”).

Here, Plaintiff’s allegations that she suffered emotional

distress are conclusory. She does not detail any physical or

psychological symptoms that she suffered or any need for therapy

or other medical care. As such, she has not sufficiently plead

direct negligent infliction of emotional distress. See Raciti

v. Rushmore Loan Mgmt. Servs., LLC, 412 F. Supp. 3d 462, 472

(D.N.J. 2019) (“the Complaint contains no allegations at all

regarding Plaintiffs’ alleged emotional distress. Therefore,

Plaintiffs have failed to sufficiently allege that they suffered

severe emotional distress”).

Plaintiff Berk also alleges an indirect claim, alleging

that the Ritz’s failure to investigate death threats made

against her service dog and emotional support cat caused her

severe emotional distress.

With respect to her indirect negligent infliction of

emotional distress claim, Defendant explains that pets cannot

satisfy the close relationship requirement of an NIED claim.

(ECF 14-2 at 26). Defendant also asserts that Plaintiff does

not allege serious injury or death caused to her cat. (Id. at

29).

In order to maintain an indirect claim, Plaintiff must show

that “(1) the death or serious physical injury of another [was]

caused by defendant’s negligence; (2) a marital or intimate

familial relationship [existed] between plaintiff and the

injured person; (3) [she had observed] the death or injury [of

the victim] at the scene of the accident; and (4) [she had

suffered] severe emotional distress.” Gendek v. Poblete, 654

A.2d 970, 973 (N.J. 1995) (quoting Portee v. Jaffee, 417 A.2d

521, 528 (N.J. 1980)) (alterations in original).

With respect to the indirect claim, it is settled law in

New Jersey that indirect negligent infliction of emotional

distress claims do not apply to harm done to animals or pets.

McDougall v. Lamm, 48 A.3d 312, 326 (N.J. 2012) (“we decline

plaintiff’s request that we expand the class of individuals

authorized to bring a Portee claim by extending it to

individuals who have witnessed the traumatic death of a pet”).

As such, Plaintiff Berk has not sufficiently plead an indirect

negligent infliction of emotional distress claim against the

Ritz and the same will be dismissed.

F. “Negligent Infliction of Emotional Distress, FHA

Service animal, and Emotional Support Animal

violations” against Ritz Carlton Condominium

Association [Count XI]

In this Count, Plaintiff sets forth allegations related to

her service dog and emotional support cat. This Court has

addressed the negligent infliction of emotional distress aspect

of this Count in the discussion above. Plaintiff also alleges a

Fair Housing Act violation related to her dog and cat. Although

the allegations under this count focus on negligent infliction

of emotional distress, Plaintiffs complain of the failure to

accommodate throughout the Amended Complaint and Defendant Ritz

addresses the sufficiency of a failure to accommodate in the

context of this count. Accordingly, the Court will construe

this as a failure to accommodate claim under the FHA. Higgs v.

Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as

amended (Sept. 19, 2011) (“The obligation to liberally construe

a pro se litigant’s pleadings is well-established.”); Wallace v.

Fegan, 455 F. App’x 137, 139 (3d Cir. 2011) (“Pleadings and

other submissions by pro se litigants are subject to liberal

construction”).

“A plaintiff may bring a claim under the FHA for unlawful

discriminatory housing practices under three legal theories:

disparate treatment, disparate impact and failure to reasonably

accommodate.” Sharpvisions, Inc. v. Borough of Plum, 475 F.

Supp. 2d 514, 522 (W.D. Pa. 2007) (citing Lapid–Laurel v. Zoning

Board of Adjustment of the Township of Scotch Plains, 284 F.3d

442, 448 (3d Cir. 2002)). Plaintiff appears to be alleging a

failure to accommodate her use of an emotional support cat.

Defendant argues that “Plaintiff Berk alleges negligent

infliction of emotional distress, purportedly based upon an FHA

violation that Defendant Ritz failed to accommodate her

disability by charging fees for her ‘emotional support cat,’

Gemini.” (ECF 14-2 at 9). However, Defendant argues that

“Plaintiff Berk fails to allege or show that she notified

Defendant Ritz of a bona fide request to be exempt from any fees

relating to her cat because it was an emotional support animal,

never presented any documentation from a treating medical

professional and did not request such an accommodation prior to

the filing of the instant Complaint such that Defendant Ritz

refused the request.” (Id. at 10).

Defendant argues that Plaintiff has not demonstrated a

failure to accommodate under the Fair Housing Act related to her

emotional support animal because she never provided notice to

the Ritz that her cat qualified as an emotional support animal

and her allegations that the Ritz charged her $21,900 in fees

related to her cat are untrue as these costs were actually

related to unpaid maintenance fees. (Id. at 13).

If Defendant’s narrative is correct, this would undermine

Plaintiffs’ failure to accommodate claim. That said, for

purposes of a motion to dismiss, this Court must accept all

well-pleaded facts as true. In the First Amended Complaint,

Plaintiffs clearly allege that the Ritz “demands and accepts

fees for the [emotional support] cat . . . and tells Jessica

Berk that it does not matter that it is an emotional support

animal.” (ECF 7 at ¶ 60). Plaintiffs also allege the Ritz “has

threatened to evict Plaintiffs for the emotional support cat.”

(Id. at ¶ 68).

Defendant asserts that after the First Amended Complaint

was filed, on June 16, 2023, Plaintiffs finally provided the

Ritz with documentation showing that their cat is an emotional

support cat, and “[a]s a result of this recent development,

Defendant Ritz will no longer list Plaintiff Berk on the list

seeking fees in connection with the pet policy.” (ECF 24 at 7).

Defendant states that this is therefore no longer an issue and

should be dismissed. (Id.). This was raised for the first time

in Defendant Ritz’s Reply.

To establish a failure to provide reasonable accommodation

in violation of the Fair Housing Act, Plaintiff must demonstrate

that “i) that [s]he is suffering from a disability as defined

under 42 U.S.C. § 3602(h)(1); ii) that the Defendants knew or

reasonably should have been expected to know of the disability;

iii) that reasonable accommodation of [Plaintiff’s] disability

might be necessary to afford [her] an equal opportunity to use

and enjoy his dwelling; and iv) that the Defendants refused to

make a reasonable accommodation.” Bell v. Tower Mgmt. Serv.,

L.P., No. 07-5305, 2008 WL 2783343, at *3 (D.N.J. July 15, 2008)

(quoting United States v. Port Liberte Condo 1 Ass’n, Inc., No.

04-2783, 2006 WL 2792780, *5 (D.N.J. Sept. 27, 2006)).

Although these facts may be disputed, Plaintiff Berk

alleged that she has a disability (ECF 7 at ¶ 9), that she

provided the Ritz with a copy of her favorable social security

determination and therefore the Ritz knew about her disability

(Id. at ¶ 11), that despite the Ritz’s awareness that her cat is

an emotional support animal it “still demands and accepts fees

for the cat” (ECF ¶ 60) and; that she is not given any

opportunity to dispute this (ECF ¶ 62). These allegations are

sufficient to support a failure to accommodate claim at this

phase on behalf of Plaintiff Berk at least for those fees which

were charged and paid. Although the First Amended Complaint

alleges that Plaintiff Kennedy shares the emotional support cat

and that he is disabled, there are no allegations stating that

the Ritz knew he was disabled or that he requested an

accommodation or even that he resides in the Ritz building.

Accordingly, this claim with be dismissed as it relates to

Plaintiff Kennedy.

G. Breach of Contract against Ritz Carlton Condominium

Association [Count XII]

Plaintiffs allege that “Defendant’s actions and failure to

act, despite repeated specific requests to investigate

Maragoudakis’s conduct and intervene on behalf of Berk, breached

Defendant’s agreement with Berk, as described above, to ensure

[her] quiet enjoyment of her home.” (ECF 7 at ¶ 163).

First, Defendant Ritz notes that Plaintiff Kennedy does not

have standing with respect to a breach of contract claim, “as he

is not a party to any of the contracts at issue.” (ECF 14-2 at

35). Further, Defendant Ritz asserts that “Plaintiffs cannot

maintain a breach of contract claim against Defendant Ritz.”

(Id.). Specifically, Defendant Ritz states that “the provisions

of the condominium’s governing documents to which Plaintiffs

cite do not obligate Defendant Ritz to ‘investigate’ or

‘intervene’ in incidents occurring off premises nor do the cited

provisions create a liability for Defendant Ritz based upon

intentional or independent tortious conduct of Defendant

Maragoudakis and Plaintiffs’ breach of contract claims cannot

survive the within motion to dismiss.” (Id. at 10). The

referenced provisions include “section 23(b) of the Master Deed,

Section 25 of the Rules and Regulations, and Section 12 of the

Rule and Regulations.” (ECF 14-2 at 35).

The First Amended Complaint cites these documents:

The Association’s Master Deed, Section 23(b)

states that “[n]o immoral, improper,

offensive or unlawful use shall be made of

the Property nor any part thereof.” The

Association’s Rules and Regulations, Section

25 states that “[n]o obnoxious or offensive

activities of any kind shall be carried on,

in or upon the common elements or in any

unit or shall anything be done therein

either willfully or negligently, which may

be or become an annoyance or nuisance to

other residents or occupants of the

Condominium.” The Association’s Rules and

Regulations, Section 12 states that “[t]he

success of the Ritz Condominium Association

depends upon the quality of the relationship

between the Association, our employees,

residents, and the general public.

Residents should communicate with other

residents and employees in a respectful,

honest, and courteous matter. If there is a

dispute between a resident and/or employee,

the resident or the employee must speak to

General Manager. Each dispute will be

handled on a case-by-case basis. If the

dispute is not settled, the matter can be

taken to the Board by either the employee or

the resident.”

(ECF 7 at ¶ 117).

Nothing in these cited sections imposes a duty to intervene

on behalf of the Condominium Association when there are issues

between residents. As such, the breach of contract claim

against the Ritz will be dismissed.

H. Intentional Infliction of Emotional Distress against

both named Defendants [Count XIII and Count VX]

In Count XIII Plaintiff Berk alleges intentional infliction

of emotional distress against defendant Maragoudakis as well as

the Ritz, stating that “Mr. Maragoudakis’s conduct, including

the use of violent threats and disabled epithets, and treating

her service animal was extreme and outrageous and done with the

intent to cause severe emotional distress along with the

building illegal policies towards service animals, overbilling,

and other violations in this complaint constitute an Intentional

Infliction of Emotional Distress.” (ECF 7 at ¶ 166).

In Count VX Plaintiff Berk alleges intentional infliction of

emotional distress against the Ritz and “Doe Defendants,”

alleging that “[t]he Doe Defendants disclosed the photos with

the intention of causing, or with reckless disregard of the

probability of causing, emotional distress to the disabled

person, including Plaintiff, Jessica Berk. As a direct and

proximate result of the Ritz Carlton Condominium Association’s

conduct, Plaintiff has suffered (and continues to suffer) severe

emotional distress in an amount to be proven at trial. Pursuant

to John Jane Doe Defendants, the Ritz Carlton Condomium [sic]

Association is liable for injuries caused by their acts or

omissions to the same extent as a private person.” (ECF 7 at ¶

180). She further claims that “[t]he acts of the Doe Defendants

were committed within the course and scope of their employment,

and the RItz [sic] are liable for the Doe Defendants’ negligent

and wrongful conduct.” (Id. at ¶ 176).

Defendant argues that “Plaintiffs’ complaint woefully fails

to set forth facts to support a finding that (1) Defendant Ritz

intended to produce any emotional distress; and (2) Defendant’s

conduct was severe and outrageous.” (ECF 14-2 at 31).

Specifically, “the conduct alleged by the Plaintiff (over

charging, failure to investigate, and illegal policies towards

service animals) simply does not rise to the level of severe or

outrageous.” (Id. at 32). Defendant Ritz argues that the

alleged conduct is not “extreme and outrageous” where “many of

the alleged incidents happened to other people and off Ritz

Property. Accordingly, it is not ‘outside the bounds of

decency,’ to decline to investigate an incident to which the

Defendant has no duty to investigate.” (Id. at 33). As for the

fees, Defendant Ritz asserts that “Ms. Berk agreed to pay the

pet fees when she moved in, and consistently paid for her

‘service dog,’ Angelina Jolie. Plaintiff cannot suddenly argue

that this practice is severe and outrageous because (1) it

conforms with community guidelines; (2) she agreed to this

practice; and (3) she has tolerated it, and paid in the past.”

(Id.).

In order to establish an intentional infliction of

emotional distress claim:

First, plaintiff must prove that defendant

acted intentionally or recklessly.

Defendant must intend “both to do the act

and to produce emotional distress.” A

defendant may also be liable when he “acts

recklessly in deliberate disregard of a high

degree of probability that emotional

distress will follow.”

Second, plaintiff must prove that

defendant’s conduct was “extreme and

outrageous.” The conduct must be “so

outrageous in character, and so extreme in

degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized

community.”

Third, plaintiff must prove defendant's

conduct was a proximate cause of plaintiff's

emotional distress.

Fourth, “the emotional distress suffered by

plaintiff must be so severe that no

reasonable [person] could be expected to

endure it.” When conduct is directed at

plaintiff, she need not prove physical

injury. It is sufficient that the conduct

produced emotional distress that is severe.

Ingraham v. Ortho-McNeil Pharmaceutical, 25 A.3d 1191, 1194–95,

(N.J. Super. Ct. App. Div. 2011) (quoting Buckley v. Trenton

Saving Fund Society, 111 N.J. 355, 544 A.2d 857 (1988))

(internal citations omitted).

For an IIED claim, “[t]he liability clearly does not extend

to mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities.” 49 Prospect St. Tenants

Ass’n v. Sheva Gardens, Inc., 547 A.2d 1134, 1145 (App. Div.

1988) (quoting Restatement, Torts (Second) § 46, cmt d). Here

the Ritz is charged not with making threats, but failing to

intervene and stop threats. Where allegations of threats are

insufficient to support an IIED claim, allegations of failure to

intervene to prevent threats are also insufficient.

As to the overcharging and threat of eviction, “[c]onduct

in connection with eviction may rise to the level of IIED in an

extreme case.” Peterson v. HVM LLC, No. 14-1137, 2016 WL

845144, at *12 (D.N.J. Mar. 3, 2016). It is not an extreme case

here, where Plaintiff does not allege that she was evicted, but

merely threatened with eviction if she did not pay certain

charges.

The Intentional Infliction of Emotional Distress Counts

will be dismissed on behalf of both Plaintiffs against Defendant

Ritz.

I. Invasion of Privacy against “Ritz Carlton Condominium

Association Employees and the Does 1–20” [Count IVX]

Plaintiff Berk asserts an invasion of privacy claim,

stating that “[t]he John/Jane/Nonbiinary [sic] Doe Defendants

and General Manager Anne-Marie Randel took and publicly

disclosed photos of Jessica Berk’s physical distress, both

personally and electronically, The transmittal of these photo(s)

by most was done to mock and belittle her for her disability

within the Ritz Carlton Condominium Association and to the

public.” (ECF 7 at ¶ 169). “Taking photos of her in peril

without any law-enforcement purpose is offensive and

objectionable to a reasonable person of ordinary sensibilities.”

(ECF 7 at ¶ 170).

The allegations in this Count are limited to Plaintiff

Berk, and as such to the extent the Amended Complaint asserts a

claim of this kind by Plaintiff Kennedy against Defendant Ritz

it will be dismissed.

Defendant Ritz argues that “[b]ecause the manner in which

the Defendant allegedly intruded upon was not private, Plaintiff

Berk cannot establish a prima facie cause of action for any of

the invasion of privacy torts.” (ECF 14-2 at 40).

New Jersey has adopted the definitions of invasion of

privacy claims in the Second Restatement of Torts. Tellado v.

Time-Life Books, Inc., 643 F. Supp. 904, 907 (D.N.J. 1986) (“New

Jersey law now treats each kind of invasion of privacy

differently and has adopted the distinctions and definitions of

the Second Restatement of Torts.”). “The Restatement of Torts

lists the four areas of invasion of privacy as generally

including (a) unreasonable intrusion, (b) appropriation of the

other’s name or likeness, (c) unreasonable publicity given to

one’s private life and (d) publicity that normally places the

other in a false light before the public. 3 Restatement, Torts

2d, § 562A at 376 (1977).” Id. at 907 (quoting Bisbee v. John

C. Conover Agency, 452 A.2d 689 (N.J. Super. App. Div. 1982)).

The Restatement (Second) of Torts sets out the definition

of the tort of unreasonable intrusion:

One who intentionally intrudes, physically

or otherwise, upon the solitude or seclusion

of another or his private affairs or

concerns, is subject to liability to the

other for invasion of his privacy, if the

intrusion would be highly offensive to a

reasonable person.

Restatement (Second) of Torts, § 652B (1977). Plaintiff Berk

has not alleged that Defendant Ritz intruded upon the solitude

or seclusion of Plaintiff where the photograph at issue depicts

Plaintiff on the boardwalk, which is a public setting. See

Tellado, 643 F. Supp. at 907 (dismissing an unreasonable

intrusion claim where “[t]he photograph that was published

depicts plaintiff and other soldiers during a combat mission in

Vietnam—a clearly public setting.”).

For an appropriation of name or likeness claim, the

Restatement explains that:

One who appropriates to his own use or

benefit the name or likeness of another is

subject to liability to the other for

invasion of his privacy.

Restatement (Second) of Torts, § 652C (1977). Plaintiff Berk

has not alleged that Defendant Ritz used her photograph for

their own purpose and benefit, commercial or otherwise. As

such, Plaintiff Berk has not plead an appropriation of name or

likeness claim.

For a publicity given to private life claim:

One who gives publicity to a matter

concerning the private life of another is

subject to liability to the other for

invasion of his privacy, if the matter

publicized is of a kind that

(a) would be highly offensive to a

reasonable person, and

(b) is not of legitimate concern to the

public.

Restatement (Second) of Torts, § 652D (1977). “A fundamental

element of this cause of action is that it involve the

publication of an ‘intimate detail’ of an individual’s life.”

Borton v. Unisys Corp., No. 90-4793, 1991 WL 915, at *10 (E.D.

Pa. Jan. 4, 1991). Here, where the photograph at issue was

taken in a public place, subsequent display of the photograph

did not reveal a private aspect of Plaintiff’s life. See id.

(“The photograph was taken in a public place and in full view of

other Unisys employees. It documented a public occurrence and

its subsequent display did not reveal any private aspect of

Borton’s life. Therefore, Borton’s claim for invasion of

privacy for publicity given to private life will be

dismissed.”).

For a false light claim, the Restatement requires that:

(a) the false light in which the other was

placed would be highly offensive to a

reasonable person, and

(b) the actor had knowledge of and acted in

reckless disregard as to the falsity of the

publicized matter and the false light in

which the other would be placed.

Restatement (Second) of Torts, § 652E (1977). It is a necessary

element that “the matter publicized be untrue, although it is

not necessary for the matter to be defamatory.” Cibenko v.

Worth Publishers, Inc., 510 F. Supp. 761, 766 (D.N.J. 1981).

Here, there are no allegations that any aspect of the photograph

is untrue or that Plaintiff Berk has been placed in a false

light. Accordingly, Plaintiff Berk has not alleged a false

light invasion of privacy claim.

As Plaintiff Berk has not sufficiently plead any of the

invasion of privacy causes of action, this Count will be

dismissed against the Ritz and its employees.

J. Res Judicata

In Defendant’s Reply, it states in a throwaway comment that

“many of Plaintiffs’ claims appear to relate back to events and

fees that were addressed by the Court in the 2019 lawsuit,9 which

resolved via a settlement agreement, the terms of which abated

9 Plaintiff Jessica Berk previously filed suit against the Ritz

Carlton Condominium Association on November 25, 2019 in Berk v.

Ritz Carlton Condominium Association, et al, 1:19-cv-20666-NLH-

MJS.

said fees.” (ECF 24 at 5). This Court expresses its concern

that there may be issues of res judicata.

The Supreme Court has explained that under certain

circumstances it may be appropriate for a Court to raise res

judicata sua sponte: “if a court is on notice that it has

previously decided the issue presented, the court may dismiss

the action sua sponte, even though the defense has not been

raised.” Arizona v. California, 530 U.S. 392, 412,

supplemented, 531 U.S. 1 (2000) (quoting United States v. Sioux

Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting)

(citations omitted)).

Here, because the 2019 case settled, and as such the Court

did not have an opportunity to delve into the facts and

circumstances of the allegations substantively, the Court will

not dismiss any claims based on res judicata sua sponte,

especially where this would only apply to certain claims rather

than the entire matter.

V. LEGAL STANDARD FOR MOTION TO AMEND

Federal Rule of Civil Procedure 15(a) governs motions to

amend a complaint. Rule 15(a) provides that once a party has

filed a responsive pleading to the complaint “a party may amend

its pleadings only with the opposing party’s written consent or

the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend

is to be freely granted unless there is a reason for denial,

“such as undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see

also Arthur v. Maersk, 434 F.3d 196, 204 (3d. Cir. 2006) (“Among

the factors that may justify denial of leave to amend are undue

delay, bad faith, and futility.”).

The futility of a proposed amended pleading is evaluated

under the same standard of legal sufficiency as a motion to

dismiss under Rule 12(b)(6). Travelers Indent. Co. v. Dammann &

Co., 594 F.3d 238, 243 (3d Cir. 2010). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief 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)).

VI. DISCUSSION OF MOTION TO AMEND

A. Untimely Reply

First, as noted above, Plaintiffs’ Reply in support of

their Motion to Amend was filed past the deadline. In

conjunction with an extension granted to Defendant for its

Opposition, this Court set the deadline for Plaintiffs’ Reply

for October 2, 2023. (ECF 30). On October 4, 2023, Plaintiffs

filed a request for an extension of time to file their Reply.

(ECF 32). Then on October 8, 2023, Plaintiffs filed their Reply

along with a motion titled Motion for Excusable Neglect with

Reply to Opposition to Amended Complaint. (ECF 33). In this

motion, Plaintiffs asked the Court to consider their untimely

Reply.

Pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), the

Court may extend a deadline “on motion made after the time has

expired if the party failed to act because of excusable

neglect.” “In evaluating whether ‘excusable neglect’ exists,

the Court must consider ‘all relevant circumstances surrounding

the party’s omission,’ including: (1) the danger of prejudice;

(2) the length of the delay and its potential impact on judicial

proceedings; (3) the reason for the delay, including whether it

was within the reasonable control of the movant; and (4) whether

the movant acted in good faith.” Krauss v. IRIS USA, Inc., No.

17-778, 2019 WL 2268975, at *2 (E.D. Pa. May 24, 2019) (quoting

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395 (1993)). “Where a delay in adhering to a court-

ordered deadline is not long and causes little prejudice to the

opposing party, a court may opt to excuse the lateness.” In re

Cendant Corp. Prides Litig., 189 F.R.D. 321, 324 (D.N.J. 1999),

aff’d, 233 F.3d 188 (3d Cir. 2000).

First, this Court does not find there to be any risk of

prejudice to Defendants in considering the Reply brief, and

notes that Defendants did not respond or present any opposition

to Plaintiffs’ motion asking the Court to consider their

untimely brief. This consideration weights in favor of

considering the brief.

The length of delay was minimal, as Plaintiffs sought an

extension only two days after the filing deadline, and filed the

Reply brief only six days after the deadline. The length of

delay has had no impact on the judicial proceedings, as the

delay had no effect on this Court’s timeline in issuing this

opinion deciding the Motion to Amend, and the delay had no

effect on Defendants’ briefing schedule. This consideration

weights in favor of considering the brief.

Next, the reason that Plaintiffs present for their delay is

that they were caring for Plaintiff Kennedy’s 91 year old mother

who had recently suffered injuries. (ECF 32 at 1). While the

request was made on October 4, 2023, Plaintiffs allege that

Plaintiff’s Kennedy’s mother was injured on September 8, 2023.

(Id.). Thus, while this may provide an explanation for

Plaintiffs’ need for an extension of time to submit their Reply

Brief, it does not explain the delay in requesting an extension.

This consideration weighs against considering the brief.

Finally, as to whether Plaintiffs acted in good faith in

filing their delayed Reply, the Court notes that while litigants

must be diligent in prosecuting their case, the Court has no

reason to believe that the delay was done for any improper

purpose or to intentionally cause delay in the action. This

Court finds that Plaintiffs acted in good faith. This factor

weighs in favor of granting the untimely request for extension.

Overall, based on the considerations addressed above, the

circumstances of this untimely request for an extension weigh in

favor of granting the extension and thus considering the

untimely Reply.

B. Opposition

Defendant Ritz opposes the Motion to Amend, stating that

“the allegations presented in Plaintiffs’ proposed Second

Amended Complaint are futile, fail to cure the deficiencies

addressed by Defendant Ritz’s Motion to Dismiss and continue to

fail to state cognizable causes of action against Defendant

Ritz.” (ECF 31 at 7). Beyond that, Defendant Ritz’s opposition

does not substantively discuss Plaintiffs’ proposed additional

parties or additional counts. Rather, Defendant Ritz rehashes

its arguments about the counts that are already included in the

operative First Amended Complaint and explains why the minor

alterations to those sections are futile. Accordingly,

Defendant Ritz’s opposition does not guide this Court’s

analysis, and instead this Court will address whether amendment

is appropriate based on the substance of the Amended Complaint

and content of Plaintiffs’ briefing.

C. Proposed Amendments

Plaintiffs seek to file a second amended complaint in order

to (1) add an additional plaintiff; (2) add three additional

defendants; (3) add additional counts, including counts for

retaliation for filing the instant action; and (4) make

“corrections that will make the complaint more understandable.”

(ECF 26 at 5, 7).

First, this Court will address the proposed additional

plaintiff, Robert Driscoll. Next, it will address the proposed

additional defendants, Gordon Pherribo, Nicole Accardi, and

Allied Universal (“Allied”). Then, it will address the proposed

additional counts.

i. Amendment to Add Plaintiff Robert Driscoll

The only allegations in the Proposed Second Amended

Complaint (“Proposed Complaint”) that involve proposed

additional Plaintiff Robert Driscoll are (1) that he is

disabled, (ECF 26-2 at ¶¶ 3, 5) and (2) that he was present for

an alleged home invasion in Plaintiff Berk’s unit (Id. at ¶ 29).

The Proposed Complaint includes the following substantive

allegations involving proposed Plaintiff Robert Driscoll:

1. “The intruder terrified Jessica and

Robert while possibly taking things of great

value and money.” (Id. at ¶ 29).

2. “Understandably, Robert called security

when the intruder was in the apartment.

Jessica spoke to security too. Both called

for help by contract to at least call the

police and save the footage.” (Id. at ¶ 30).

3. “Jessica had had emotional distress and

fear, so has Robert.” (Id. at ¶ 135).

These allegations are included in the Proposed Complaint in

support of the claim that the security officers at the Ritz were

negligent. However, there are no allegations that demonstrate

that Allied Security Company or the Ritz owed a duty to

Driscoll. As such, amendment to add Driscoll as a plaintiff

based on the proposed allegations would be futile and thus does

not provide rationale for permitting amendment. Plaintiffs will

not be permitted to amend their complaint to add Robert Driscoll

as a plaintiff at this time. If Robert Driscoll wishes to

pursue his alleged claims, Robert Driscoll may file his own

complaint and pay his own filing fee, and seek consolidation

with this matter.

ii. Amendment to Add Defendants

Plaintiffs state that “Plaintiffs seek to add . . . three

new Defendants — Allied Universal, Gordon Pherribo, Jr.

(Chairman of the Board Ritz Condominium Association), Nicole

Accardi (General Management of the Association Ritz Condominium)

— who were significantly involved in planning and perpetrating

the illegal plot/schemes and retaliation for filing federal

complaints in violation of plaintiffs protected civil rights as

a protected class as will be shown by overwhelming evidence,

basically the victimization of plaintiffs.” (ECF 26 at 1–2)

(emphasis in original). Plaintiffs Proposed Complaint does not

include any substantive allegations about Gordon Pherribo, Jr.

or Nicole Accardi. They are only included in the case caption

and in the description of the parties. Because there are no

substantive allegations establishing their role in any of the

claims, amendment to add these defendants as alleged would be

futile. Plaintiffs will not be permitted to amend the complaint

to include these two individual defendants without additional

allegations tying these Defendants to Plaintiffs’ claims. As

for proposed defendant Allied, there are substantive allegations

against this entity as addressed in the discussion of the

proposed additional counts below.

iii. Amendment to Add Counts for Violation of 42

U.S.C. 1985(2) and (3)

In the Proposed Complaint, Plaintiffs allege that Defendant

Ritz, Defendant Maragoudakis, and prospective Defendant Allied

conspired “to deter Plaintiffs and others from appearing or

testifying in federal court” related to this case, and “to

retaliate against them for so appearing or testifying” in

violation of 42 U.S.C. § 1985. (ECF 26-2 at ¶ 227).

Specifically, “Civil Rights Act of 1871, 42 U.S.C. 1985(2) and

(3), occurred when defendants failed to cooperate with the

Atlantic City Police Department for plaintiff’s home invasion

which is pursuant to a conspiracy to deter them and others from

appearing or testifying in federal court or to retaliate against

them for so appearing or testifying.” (ECF 26-2 at ¶ 152).

As a threshold matter, “[t]o constitute a conspiracy, there

must be a ‘meeting of the minds.’” Callaway v. Small, 576 F.

Supp. 3d 232, 249 (D.N.J. 2021) (citation omitted). In order to

establish a meeting of the minds, “direct evidence of an express

agreement is not required.” Szemple v. Rutgers, No. 10-05445,

2016 WL 1228842, at *7 (D.N.J. Mar. 29, 2016). Rather, “a §

1985 conspiracy may also be proved through circumstantial

evidence, and a claim may be maintained where the jury could

infer from the circumstances that the Defendants had a ‘meeting

of the minds.’” Id.

Plaintiffs have not alleged any facts in support of a

conspiracy. All allegations of a conspiracy in the proposed

amended complaint are merely legal conclusions, without any

factual support. (See, e.g., ECF 26-2 at ¶¶ 152, 227, 230).

Thus, Plaintiffs have not established the threshold requirement

in demonstrating a conspiracy in violations of § 1985.

Section 1985 consists of three subsections dealing with

various conspiracies to interfere with civil rights. Plaintiffs

allege violations under two subsections, which this Court will

address in turn.

“To establish a claim under § 1985(2), a plaintiff must

allege one of the statute’s two bases for recovery: 1) a

conspiracy to ‘deter by force, intimidation or threat, any party

or witness in any court of the United States from attending such

court, or from testifying to any matter pending therein ...’; or

2) a conspiracy with the purpose of ‘impeding, hindering, or

obstructing, or defeating in any manner, the due course of any

justice in any State or Territory, with intent to deny any

citizen the equal protection of the laws.’ 42 U.S.C. § 1985(2).”

Richardson v. Oriolo, No. 16-135, 2022 WL 4131968, at *15

(D.N.J. Sept. 12, 2022), aff’d, No. 22-2918, 2023 WL 2597590 (3d

Cir. Mar. 22, 2023).

In the Proposed Complaint, Plaintiffs describe an alleged

home invasion that occurred on August 7, 2023. (ECF 26-2 at ¶¶

17–31). Plaintiffs allege that an unknown “criminal actor . . .

cruised inside the Ritz,” got “past the security guard with

ease, past the cameras to do a home invasion on the Plaintiffs.”

(ECF 26-2 at ¶ 17). Plaintiffs allege that the temporal

proximity between Plaintiff Berk’s “home invasion” and her

filing a “rather good” opposition brief demonstrates that the

alleged home invasion was part of a conspiracy to deter

Plaintiffs from proceeding with this case. (Id. at ¶ 148).

Plaintiffs allege the home invasion occurred on August 7, 2023

(Id. at ¶ 127), and Plaintiffs filed their Opposition to the

Motion to Dismiss on August 7, 2023 (ECF 19).

However, while temporal proximity may be considered, it is

not necessarily determinative. Here, there is no indication

that there was any connection between the alleged home invasion

or the response to the invasion and Plaintiffs’ case. First,

the alleged intruder is not involved in this action. Second,

the security company, Allied, that Plaintiffs assert did not

appropriately respond was not a defendant at the time of the

alleged invasion and Opposition Brief filing. Allied was not

involved in this action in any form until the filing of

Plaintiffs’ Motion to Amend on August 28, 2023. (ECF 26). As

for Defendant Ritz, there are no facts alleged to support a

finding that Defendant Ritz instructed Allied to respond to

Plaintiffs’ request for assistance related to a home invasion in

any particular way.

Subsection (3) provides a remedy, generally, if two or more

persons conspire or go on the premises of another, “for the

purpose of depriving, either directly or indirectly, any person

... of the equal protection of the laws, or of equal privileges

and immunities under the laws.” 42 U.S.C. § 1985(3). To state

a claim under § 1985(3), a plaintiff must allege, “(1) a

conspiracy; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

under the laws; and (3) an act in furtherance of the conspiracy;

(4) whereby a person is injured in his person or property or

deprived of any right or privilege of a citizen of the United

States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.

2006) (internal quotation marks and citations omitted). With

respect to the second element, “a claimant must allege some

racial or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action in order

to state a claim.” Id. at 135 (emphasis in original) (internal

quotation marks and citation omitted).

There are no allegations that anyone entered Plaintiffs’

property other than an unnamed alleged home invader. There are

no facts alleged that demonstrate that this alleged invader

conspired with the Ritz or Allied before entering her unit.

Accordingly, Plaintiffs have not sufficiently alleged that any

defendant or prospective defendant entered her premises in

violation of § 1985(3).

From the facts alleged in the Proposed Complaint,

Plaintiffs have not sufficiently alleged a claim under § 1985.

As such, this proposed additional count does not provide a basis

for granting the Motion to Amend as amendment to include this

claim would be futile.

iv. Amendment to Add Count for Negligent Security

To sustain a negligence claim, “a plaintiff must establish

four elements: ‘(1) a duty of care, (2) a breach of that duty,

(3) proximate cause, and (4) actual damages.’” Townsend v.

Pierre, 110 A.3d 52, 61 (N.J. 2015) (quoting Polzo v. Cty. of

Essex, 960 A.2d 375, 384 (N.J. 2008) (discussing a negligent

security claim)). For a negligent security claim, “[t]he issue

whether a defendant owes a legal duty is generally a question of

law for the court to decide.” Clohesy v. Food Circus

Supermarkets, Inc., 694 A.2d 1017, 1020 (N.J. 1997) (alteration

in original).

“Whether a duty exists depends upon an evaluation of a

number of factors including ‘[t]he nature of the underlying risk

of harm, that is, its foreseeability and severity, the

opportunity and ability to exercise care to prevent the harm,

the comparative interest of, and the relationships between or

among the parties, and, ultimately, based on considerations of

public policy and fairness, the societal interest in the

proposed solution.’” Amentler v. 69 Main St., LLC, No. 08-0351,

2011 WL 1362594, at *4 (D.N.J. Apr. 11, 2011) (citations

omitted). Although foreseeability is not dispositive, it is a

crucial factor in determining if a duty exists. Id. (citations

omitted). “In the context of determining whether a duty of care

exists, foreseeability refers to ‘the knowledge of the risk of

injury to be apprehended. The risk reasonably to be perceived

defines the duty to be obeyed; it is the risk reasonably within

the range of apprehension, of injury to another person, that is

taken into account in determining the existence of the duty to

exercise care.’” Id. (citations omitted). “Foreseeability

should be evaluated according to the totality of the

circumstances, and take into consideration a history of criminal

activity at the location of the incident giving rise to the

claim.” Ludwiczak v. Showboat Atl. City Operating Co., LLC, No.

A-5189-09T1, 2011 WL 2370744, at *5 (N.J. Super. Ct. App. Div.

June 3, 2011).

First, Plaintiffs allege negligent security related to an

alleged home invasion: “on August 7, 2023, when a criminal actor

decided that he wanted to rob someone, he cruised inside the

Ritz until he found his targets. He had gone past the security

guard with ease, past the cameras to do a home invasion on the

Plaintiffs.” (ECF 26-2 at ¶ 127). Plaintiff provided a

purported transcript of her conversation with Allied Universal

Security in which the security guard advises that the individual

did not enter the building from outside, but instead is a

resident of the building that got confused and accidentally

entered Plaintiff Berk’s residence that was left unlocked. (Id.

at ¶ 131). Plaintiff Berk reports her disbelief at this

interpretation of events, stating that she had had a

conversation with the person in the elevator and she believes he

followed her. (Id.). Accordingly, Plaintiff Berk states that

“the defendants had actual knowledge of a dangerous condition in

real time, while they made it their mission to ‘watch’ all of

Jessica’s moves all the time but consciously chose not to take

steps to address that dangerous condition, and that it

specifically contributed to this home invasion and theft of a

disabled protected person’s home.” (ECF 26-2 at ¶ 133 (emphasis

in original)).

Plaintiffs have not established that the alleged home

invasion was foreseeable. Plaintiffs only explanation for why

Allied should have anticipated the home invasion is that

Plaintiff Berk has previously been cited for issues in the Ritz,

for example she was fined for not wearing shoes in a public

area. (Id. at ¶¶ 119, 127, 137, 143). Thus, Plaintiffs aver

that Allied is watching video surveillance footage at all times,

and therefore should have seen the alleged home invader. (Id.

at ¶ 137). This is not sufficient to establish that there was a

foreseeable risk of injury as it does not demonstrate that

Allied was aware of any particular risk of a home invasion.

Moreover, Plaintiff Berk admits that the door to her unit was

unlocked at the time the alleged home invader followed her into

her unit. (Id. at ¶ 131). Finally, Plaintiffs’ core complaints

are about Allied’s conduct following the alleged home invasion.

(Id. at ¶ 42–43, 130). Accordingly, there is a causation issue,

as even if Allied did have a duty to report this incident to the

police or provide police with a surveillance video, Plaintiffs

only requested these actions after the home invasion.

Accordingly, any alleged damages from the home invasion were not

proximately caused by Allied’s reported failures.

Plaintiffs also point to other issues they attribute to

Allied’s negligent security stating that: “Despite having

cameras everywhere Jessica’s shillelagh was never returned

(stolen) after she left her first property manager’s office:

Items were stolen from her wheelchair in the lobby, and the hall

of her apartment; drinks were poured on her property by other

tenants, harassment for disability has taken place by Allied

employees; mail was not given and other tenants did the same

some who made death treats [sic] to her service dog ‘Angelina

Jolie’ and emotional support cat ‘Gemini’ and much more. Allied

did nothing. Defendants did not allow this to happen to anyone

else.” (ECF 26-2 at ¶ 119).

Plaintiffs do not include any allegations as to how Allied

should have been aware of any of these incidents in order to

prevent them. Plaintiff Berk does not provide any facts

demonstrating that her shillelagh or wheel chair were under the

control or responsibility of Allied. She does not provide any

explanation as to how Allied should have known that a tenant,

who is permitted to be in the building, would pour drinks on her

property.

Overall, Plaintiffs have not included any allegations

demonstrating that the injuries to them were foreseeable so as

to create a duty on behalf of Allied. Accordingly, amendment to

include this claim would be futile.

v. Amendment to Add Counts for Civil Rights

Retaliation

In the proposed amended complaint Plaintiffs set forth

three instances of alleged retaliation. First, Plaintiffs

allege that they sent a “preservation letter” to Allied, and did

not receive any documents or information in response, which they

allege is retaliation for filing this case. (ECF 26-2 at ¶ 145)

(“Defendant Allied was also given a preservation letter,

nothing. This is retaliation did not provide or request its

employee to provide information about the crime to the

authorizes in retaliation for filing a federal the same ADA

complaint for which they falsely claimed Jessica was not

disabled.”). Second, Plaintiffs allege that Allied failed to

provide the Atlantic City Police Department with a video of the

alleged home invasion in retaliation for this action. (ECF 26-2

at ¶ 153) (“jury could conclude that the Defendants had a

willful and malicious failure to guard and tell the police of

what happened, provide them with the video needed to find the

criminal (a duty that the defendants had to plaintiffs by

contact law and premise law but did not do and it is also

considered retaliation. (4) a jury can reasonably conclude that

charging Jessica $20 instead of providing the video to the

Atlantic City Police is in retaliation for their new filing a

federal complaint and testifying to that end-the same goes for

all Operators”). Third, Plaintiffs allege that Defendant Ritz

advised Defendant Maragoudakis of this lawsuit before he was

served in hopes that he would retaliate. (ECF 26-2 at ¶ 160)

(“It is believed that STANLEY MARAGOUDAKIS was informed by all

of the Defendants in the hopes and expectation of which directly

involves all the Defendants in the actions of this bad actor in

the pursuit and concealment of fraud and theft deciet [sic] in a

plot/scheme to take Jessica’s home.”).

The Fair Housing Act “prohibits retaliation, making it

‘unlawful to coerce, intimidate, threaten, or interfere with any

person in the exercise or enjoyment [of], or on account of his

having exercised or enjoyed, or on account of his having aided

or encouraged any other person in the exercise of enjoyment of,

any right granted or protected by [ ] 42 U.S.C. § 3603, 3604,

3605, or 3606.’ 42 U.S.C. § 3617.” Livingstone v. Hugo Boss

Store, Atl. City, NJ, No. 21-01971, 2021 WL 3910149, at *5

(D.N.J. Sept. 1, 2021), appeal dismissed sub nom. Livingstone v.

Hugo Boss Store Atl. City, No. 21-2757, 2022 WL 845249 (3d Cir.

Mar. 2, 2022). “To prevail on a § 3617 retaliation claim, a

plaintiff must demonstrate that (1) she engaged in a protected

activity; (2) the defendant subjected her to an adverse action;

and (3) a causal link exists between the protected activity and

the adverse action.” Butler v. Sundo Cap., LLC, 559 F. Supp. 3d

452, 460 (W.D. Pa. 2021) (quoting Lloyd v. Presby’s Inspired

Life, 251 F. Supp. 3d 891, 904 (E.D. Pa. 2017)).

Filing a complaint and seeking to enforce the provisions of

the Fair Housing Act constitutes engaging in a protected

activity. See 24 C.F.R. § 100.400 (prohibiting “[r]etaliating

against any person because that person has made a complaint,

testified, assisted, or participated in any manner in a

proceeding under the Fair Housing Act.” Thus, Plaintiffs have

plead the first element. Plaintiffs’ claim that Allied refused

to provide information requested in a preservation letter does

not constitute an adverse action. The purpose of a preservation

letter is to advise a party or prospective party of litigation

so that any relevant information or documents are maintained and

not disposed of. This is distinct from a request for production

of documents, which occurs at the discovery phase of litigation.

This case is not yet at the discovery phase. Thus, any failure

to produce documents at this phase does not demonstrate an

adverse action. In addition, advising a defendant of active

litigation against him does not constitute an adverse action.

It is a requirement to proceed with litigation against a party

that that party is notified of the litigation. While it is the

Plaintiffs’ obligation to officially serve each defendant, one

defendant advising another of pending litigation does not

constitute an adverse action.

Plaintiffs’ allegation that Allied refused to provide the

Atlantic City Police department with video surveillance of a

home invasion could constitute an adverse action. That said,

the Proposed Complaint is missing key information on this point.

Plaintiffs have not alleged that the Police Department requested

this video surveillance. All that is alleged is that Allied did

not, on their own, make a police report on Plaintiffs’ behalf

and conjunctively provide the video to the police.

Moreover, even if this were an adverse action, Plaintiffs

have not alleged any facts supporting their conclusion that this

failure bears any relation to this lawsuit. This Court further

notes that Allied was not even a party or proposed party at the

time of the home invasion or the few weeks after. The alleged

home invasion occurred on August 7, 2023 and the Motion to Amend

to add Allied as a defendant was not filed until August 28,

2023. Thus, a causal connection between Allied’s implication in

this lawsuit and the alleged failure to provide surveillance

video to the police is lacking.

As Plaintiffs have not sufficiently plead the elements of a

retaliation claim under the Fair Housing Act, amendment to

include this count would be futile.

vi. Amendment to Add Counts for Intentional

Infliction of Emotional Distress

Plaintiffs seek to add an additional count for Intentional

Infliction of Emotional Distress against Allied, stating that

“it was intentional Emotional Distress because the Plaintiffs

feel fear for their safety despite a multimillion-dollar

security contract.” (ECF 26-2 at ¶ 153).

Plaintiffs have not sufficiently plead the elements of an

intentional infliction of emotional distress claim. First,

Plaintiffs have not demonstrated that Allied acted intentionally

or recklessly to produce emotional distress. There is no

indication in the allegations that Allied engaged in any action

with this purpose. Second, Plaintiffs have not alleged that

Allied engaged in conduct that was extreme or outrageous.

Plaintiffs include an alleged transcript of the conversation

with the Allied security officer in which the officer states

that they reviewed video footage and investigated the issue.

While Plaintiffs were not satisfied with the conclusion that

Allied drew in that conversation, it does not demonstrate

conduct that is severe and outrageous.

Third, Plaintiffs allege that they experienced emotional

distress based on the alleged home invasion; however, their

complaints about Allied followed the home invasion. Plaintiffs

assert that Allied failed to appropriately respond in the

aftermath, and state that Allied should have coordinated with

police. These acts did not cause the emotional distress, and as

such Plaintiffs have has not sufficiently plead proximate cause.

As Plaintiffs have not sufficiently plead these core

elements of an intentional infliction of emotional distress

claim against Allied, amendment to include this count would be

futile.

vii. Amendment to Add Counts for “interference under

24 CFR § 100.400

Plaintiffs allege that “Allied security did not press the

button to let her in even though it is illegal for anyone to

deny a person access to your property.” (ECF 26-2 at ¶ 6). As

this Court expressed above, the allegation that a defendant

refused to allow Plaintiff Berk into the building when her

disability prevented her from gaining her usual entry may

support an interference claim. In addressing the Ritz’s motion

to dismiss, this Court stated that it will permit the

interference claim to proceed. Plaintiff has alleged here that

employees of Allied are the staff at the Ritz who specifically

refused to grant her entry. (Id.). Accordingly, it would not

be futile to allow Plaintiff Berk to include Allied in her

interference claims. Plaintiff Berk will be permitted to file a

second amended complaint for the purpose of adding Allied as a

defendant in her interference claim under 42 U.S.C. § 3617.

viii. Amendment to Add Counts for “N.J.S.A. 2C:29-3 and

other laws such as the New Jersey Law Against

Discrimination

N.J.S.A. 2C:29-3 is a criminal statute. A Plaintiff in a

civil action cannot assert a claim premised on a criminal

statute. As such, Plaintiffs cannot support a claim under

N.J.S.A. 2C:29-3, and therefore amendment to add this claim

would be futile.

The only allegation related to the NJLAD is as follows:

“Apart from the above all the Defendants discriminated against

the plaintiff as protected race, sexual orientation, and race in

violation of FHA and NJ LAD among others highlighted in this

complaint.” (ECF 26-2 at ¶ 157). This is conclusory and does

not provide sufficient clarity or notice to the Defendants as to

what facts Plaintiffs assert to establish an NJLAD claim or

claims. As such, amendment to add this claim as written would

be futile.

ix. Amendment for Civil Rights Claims

For purposes of adjudicating Plaintiffs’ Motion to Amend,

this Court has examined whether to permit the Proposed Amended

Complaint attached to the Motion to Amend to be filed as

drafted. However, this Court has determined that the majority

of the proposed amendments would be futile, with the exception

of adding Allied as a defendant.

That said, Third Circuit precedent “supports the notion

that in civil rights cases district courts must offer amendment-

irrespective of whether it is requested—when dismissing a case

for failure to state a claim unless doing so would be

inequitable or futile.” Fletcher–Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Thus,

Plaintiffs will be permitted to file an Amended Complaint in

order to reallege the dismissed civil rights claims above with

additional alleged facts to support a claim, and allege any

related additional civil rights claims while heeding this

Court’s analysis above of the futility of the addition of

certain proposed counts as currently drafted.

VII. CONCLUSION

For the reasons expressed above, Defendant’s Motion to

Dismiss the complaint will be granted in part and denied in

part; Plaintiffs’ Motion to Amend will be granted in part and

denied in part; and Plaintiffs’ Motion to Consider Untimely

Brief will be granted.

The following counts will be dismissed: all counts raised

on behalf of Plaintiff Kennedy against the Ritz as well as the

following counts raised on behalf of Plaintiff Berk against the

Ritz - Counts I and II for violations of 42 U.S.C. § 1981;

Counts III and IV for violations of 42 U.S.C. § 1982; Counts

VIII and IX for violations of the Fair Housing Act; Count X for

Negligent Infliction of Emotional Distress and Count XI to the

extent it asserts a claim for Negligent Infliction of Emotional

Distress; Count XII for Breach of Contract; Counts XIII and VX

for Intentional Infliction of Emotional Distress; and Count IVX

for Invasion of Privacy.

The following counts will be permitted to proceed against

the Ritz on behalf of Plaintiff Berk: Counts V and VI for

violations of 42 U.S.C. § 3617; Count VII for common law fraud

and violation of the FHA; and Count XI to the extent Plaintiff

asserts a failure to accommodate under the FHA.

The Motion to Amend will be granted for the limited purpose

of adding Allied Universal as a defendant as it relates to

Plaintiff Berk’s interference claim under § 3617 of the FHA;

however, Plaintiffs are also permitted to include in their

amended complaint allegations to cure the deficiencies noted in

the analysis of the motion to dismiss above and are permitted to

include any additional related civil rights claims. Plaintiffs

will be ordered to file their amended complaint within thirty

(30) days of this Court’s Opinion and Order.

Further, as noted above, in order to proceed in this

action, Plaintiff Kennedy must provide the Court with his

current address and must pay his own filing fee.

An appropriate order will be entered.

Date: January 22, 2024 s/ Noel L. Hillman

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