# BROWN v. CITY OF JERSEY CITY

> District Court, D. New Jersey · July 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10655700

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655700

## How later opinions describe it (automated extraction)

- explaining that for the city to be liable under Section 1983, the law “would require facts suggesting an unconstitutional municipal policy, practice, or custom”
- explaining that a Monell claim “predicated on a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the municipality”
- explaining that “a failure or inadequacy by the municipality” is a basis for a Section 1983 claim against a municipality

## Opinion text

Not for Publication

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES JAMAL BROWN,

Plaintiff,
Civil Action No. 22-2792
v.
OPINION & ORDER
CITY OF JERSEY CITY, et al.,

Defendants.

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

Plaintiff alleges that he was a victim of unconstitutional racial profiling by multiple Jersey
City police officers. Presently before the Court is Defendants’ motion to dismiss the Second
Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 43.
Plaintiff filed a brief in opposition to the motion, D.E. 46, to which Defendants replied, D.E. 49.1
The Court reviewed the parties’ submissions and decided the motion without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,
Defendants’ motion is GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
For purposes of the instant motion, the Court does not retrace this case’s full factual and
procedural history. This Court’s November 21, 2022 Opinion granting Defendants’ motion to
dismiss the initial complaint includes a detailed recounting of the factual background of this matter.

1 The Court refers to Defendants’ brief in support of their motion (D.E. 43-1) as “Defs. Br.”;
Plaintiff’s opposition (D.E. 46) as “Plf. Opp.”; and Defendants’ reply (D.E. 49) as “Defs. Reply.”
D.E. 30 (the “MTD Opinion”). To the extent relevant to the instant motion, the Court incorporates
the factual and procedural history from the MTD Opinion.
Briefly, Plaintiff pleads that as he was driving home on May 14, 2020, he was pulled over
by multiple Jersey City police officers.2 SAC ¶¶ 12, 18. Defendants Michael Rivera; Shady Azmy;
Dane Coleman; Patrick Egan; Gary Griffin, Jr.; and Gary Huaman, Jr. (the “Officer Defendants”)

approached Plaintiff’s vehicle and then removed Plaintiff from the car. The Officer Defendants
instructed Plaintiff to stand near the rear of the vehicle with his hands on his head while they
searched Plaintiff’s vehicle without consent. Id. ¶¶ 18-19. Plaintiff alleges that during this time,
he believed that he was required to comply with the Officer Defendants’ requests and was not free
to leave. Id. ¶ 20. Immediately before Plaintiff’s purported release, the Officer Defendants told
Plaintiff they stopped him for suspected drug activity near the Hyatt Hotel. Id. ¶ 22. Plaintiff
indicates that he was not near the Hyatt Hotel on May 14. Id. Thus, Plaintiff contends that the
Officer Defendants had no information that would lead a reasonable officer to believe Plaintiff
was engaged in criminal activity before the stop. Plaintiff alleges that prior to the stop, the Officer

Defendants agreed to stop him solely because he is an African American man. Id. ¶¶ 23-24.
After the stop, Plaintiff made an Internal Affairs (“IA”) complaint against the Officer
Defendants. Id. ¶ 25. Defendant George Rotondo investigated the IA complaint and deemed it to
be unfounded. Id. ¶¶ 26-27. Plaintiff alleges that Rotondo failed to conduct a proper investigation.
Id. ¶ 27.
Plaintiff filed his initial Complaint in this matter in 2022. Plaintiff asserted Section 1983,
New Jersey Civil Rights Act (“NJCRA”), and tort claims pertaining to the traffic stop and IA

2 The Court takes the factual background from Plaintiff’s SAC. D.E. 41. When reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court accepts as true all well-pleaded
facts in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
investigation. D.E. 1. Defendants subsequently filed a motion to dismiss pursuant to Rule
12(b)(6). D.E. 15. This Court granted Defendants’ motion with respect to the Section 1983 claims
and declined to exercise supplemental jurisdiction, pursuant to 28 US.C. § 1367(c)(3), over the
remainder of Plaintiff’s complaint. The Court, however, granted Plaintiff leave to file an amended
pleading that remedied the noted deficiencies with Plaintiff’s federal law claims. D.E. 27, 30.

Plaintiff filed the SAC on April 26, 2023, which includes new factual allegations. D.E. 41.
Defendants then filed the instant motion to dismiss pursuant to Rule 12(b)(6). D.E. 43.
II. LEGAL STANDARD
Rule 12(b)(6) permits a court to dismiss a complaint that fails “to state a claim upon which
relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). For a complaint to survive dismissal under Rule
12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir.
2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of
truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint’s well-pleaded facts as true” and give a plaintiff the benefit of
all reasonable inferences therefrom. Fowler, 578 F.3d at 210.
III. ANALYSIS
A. Constitutional Violation Claims (Counts One, Two, Five, Six and Eight)
Plaintiff asserts numerous claims under Section 1983 as well as a claim pursuant to the
NJCRA. Section 1983, in relevant part, provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides
a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-
94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived
him of a federal right; and (2) the person who deprived him of that right acted under color of state
or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.
14, 2015).
Plaintiff also asserts a NJCRA claim in Count Six. The NJCRA provides a private cause
of action to
[a]ny person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.

N.J. Stat. Ann. § 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey
have consistently looked at claims under the NJCRA through the lens of § 1983 and have
repeatedly construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v.
Fuentes, No. 15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and
citation omitted). The Court, therefore, considers Plaintiff’s Section 1983 and NJCRA claims
together. In addition, the parties do not appear to dispute that Defendants are state actors, so the
Court focuses on the constitutional violation requirement.

Defendants first seek to dismiss Plaintiff’s Counts Five and Six, which are against the City.
Specifically, Defendants argue that Plaintiff’s municipal liability, or Monell claim, is conclusory.
Defs. Br. at 7-12. A municipality may be liable under Section 1983 “if the plaintiff identifies a
municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell v. Ridley
Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C.,
436 U.S. 658, 694 (1978)); see also Meleika v. Bayonne Police Dep’t, No. 21-19793, 2022 WL
522810, at *4 (D.N.J. Feb. 22, 2022) (explaining that for the city to be liable under Section 1983,
the law “would require facts suggesting an unconstitutional municipal policy, practice, or
custom”). A policy exists “when a decisionmaker possessing final authority to establish municipal

policy with respect to the action issues an official proclamation, policy, or edict.” Estate of Roman
v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990)) (internal punctuation omitted). A custom may be established “by
showing that a given course of conduct, although not specifically endorsed or authorized by law,
is so well-settled and permanent as virtually to constitute law.” Id. (quoting Brown v. Muhlenberg
Township, 269 F.3d 205, 215 (3d Cir. 2001)).
A Monell claim may also be premised on a municipality’s failure to train, supervise, and
discipline. To plead a failure-to-train claim, a plaintiff must demonstrate that a city’s failure
“reflects a deliberate or conscious choice.” Id. at 800 (quoting Brown, 269 F.3d at 215). For
claims involving police officers, the alleged failure can only serve as a basis for Section 1983
liability where it “amounts to deliberate indifference to the rights of persons with whom the police
come into contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also
Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019) (explaining that a Monell claim “predicated on
a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a

failure or inadequacy amounting to deliberate indifference on the part of the municipality”).
Deliberate indifference is plausibly pled by showing that “‘(1) municipal policy makers know that
employees will confront a particular situation, (2) the situation involves a difficult choice or a
history of employees mishandling, and (3) the wrong choice by an employee will frequently cause
deprivation of constitutional rights.’” Roman, 914 F.3d at 798 (quoting Doe v. Luzerne County,
660 F.3d 169, 180 (3d Cir. 2011) (internal brackets omitted)).
Plaintiff asserts a failure-to-train municipal liability claim. Plaintiff pleads that Jersey City
police officers, including the Officer Defendants, “regularly engaged in racial profiling.” SAC ¶
28. Plaintiff further pleads that the City was aware of this practice but did nothing to stop it and

failed to discipline officers engaging in the practice. Id. Plaintiff’s allegations, however, are
entirely conclusory. Plaintiff attempts to excuse this shortcoming by alleging that Jersey City is
frequently unwilling to share policing data with the public because of its knowledge of the
problem. SAC ¶ 28. Even if true, the Court would expect additional factual allegations to support
the allegations of profiling and lack of concomitant training. Moreover, as to the data itself,
Plaintiff does not provide a time frame or explain how many times he attempted to obtain data but
was refused. Without these specific allegations, Plaintiff’s failure-to municipal liability claim
fails.
Plaintiff also attempts to plead a Monell claim based on an alleged custom of racial
profiling within the police department. SAC ¶ 54. Plaintiff’s custom-based Monell claim fails for
the same reason. In short, Plaintiff does not provide specific allegations to substantiate his
allegation that Jersey City police officers regularly engaged in a practice of racial profiling. Count
Five and Six, to the extent it is premised on a Monell claim, are dismissed.

In Count One, Plaintiff alleges that the Officer Defendants conducted an unlawful search3
and seizure of Plaintiff and his vehicle, in violation of the Fourth Amendment. SAC ¶ 33. In the
MTD Opinion, the Court determined that the basis of Plaintiff’s Fourth Amendment claim was not
clear and that his allegations were conclusory. MTD Opinion at 7-9. While still not a model of
clarity, Plaintiff appears to plead a Fourth Amendment false imprisonment claim in the SAC.4
Defendants maintain that Plaintiff’s Fourth Amendment claim is still conclusory. Defs. Br. at 16;
Defs. Reply at 10.
To state a Section 1983 false imprisonment claim, a plaintiff must plead facts
demonstrating that (1) “the police lacked probable cause to make an arrest” and (2) “the plaintiff

was detained pursuant to that arrest.” Lozano v. New Jersey, 9 F. 4th 239, 246 (3d Cir. 2021)
(quoting Harvard v. Cesnalis, 973 F.3d 190, 202 (3d Cir. 2020)) (internal brackets omitted).
Plaintiff asserts that the Officer Defendants told Plaintiff he was stopped “for suspected drug
activity near that Hyatt Hotel.” SAC ¶ 22. Plaintiff asserts that he was not in the vicinity of the
hotel. Id. Consequently, Plaintiff plausibly pleads that the Officer Defendants lacked probable
cause to detain Plaintiff.

3 The parties do not address whether Plaintiff plausibly pleads a Fourth Amendment claim based
on an improper search. Accordingly, the Court does not address this issue.

4 Plaintiff also asserts a state law claim for the tort of false imprisonment in Count Three. SAC ¶¶
43-44. Defendants do not seek to dismiss this count.
Turning to the seizure element, in addition to a traditional arrest, a seizure may also occur
“‘when the officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen.’” California v. Hodari D., 499 U.S. 621, 625 (1991) (quoting Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968)) (emphasis in original). The restraint must be “‘willful’ and not
merely the consequence of ‘an unknowing act.’” Brendlin v. California, 551 U.S. 249, 254 (2007)

(quoting Brower v. County of Inyo, 489 U.S. 593, 596 (1989)). When a restraint occurs through a
show of authority rather than physical force, courts apply an objective test to determine whether a
seizure occurred. Specifically, a court considers “‘whether the officer’s words and actions would
have conveyed . . . to a reasonable person’ that he was not free to leave.” United States v. Lowe,
791 F.3d 424, 430 (3d Cir. 2015) (quoting Hodari D., 499 U.S. at 628). “While an officer merely
asking a citizen questions may not be a seizure,” additional factors may turn the questioning into
a seizure. Black v. Montgomery County, 835 F.3d 358, 365 (3d Cir. 2016). For example, certain
“demonstration[s] of authority” such as “‘the threatening presence of several officers, the display
of a weapon by an officer, some physical touching . . . , or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.’” Vargas v. City of
Philadelphia, 783 F.3d 962, 969 (3d Cir. 2015) (quoting United States v. Crandell, 554 F.3d 79,
85 (3d Cir. 2009)). Finally, there must be “submission to the assertion of authority.” Id. at 626.
Submission may “take[] the form of passive acquiescence.” Brendlin, 551 U.S. at 255.
Plaintiff alleges that six officers pulled him over, removed him from his vehicle and made
him stand by the back of his vehicle with his hands on his head. Plaintiff pleads that he “believe[d]
that he was required to comply with the officers’ requests, required to submit to their authority and
could not simply leave the scene whenever he wanted to.” SAC ¶ 21. Plaintiff continues that the
Officer Defendants eventually “released” him, permitting him to leave. Id. Accordingly, Plaintiff
plausibly pleads that the Officer Defendants restrained Plaintiff’s liberty during the traffic stop and
Plaintiff submitted to this restraint. Thus, Plaintiff pleads a Fourth Amendment false imprisonment
claim.
Plaintiff also asserts an equal protection claim in Count One. SAC ¶ 33. Defendants
contend that Plaintiff’s equal protection claim is conclusory. Defs. Br. at 12-14. The Fourteenth

Amendment’s Equal Protection Clause provides that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. Traditionally, to
prevail on an equal protection claim, a plaintiff must allege that he was treated differently than
others who were similarly situated, and that this difference in treatment was the result of intentional
discrimination based on his membership in a protected class, such as religious affiliation or race.
See Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002). Here, Plaintiff alleges that upon
information and belief,5 the Officer Defendants stopped him “for no reason other than the fact that
he is an African American male.” SAC ¶ 23. Plaintiff provides further allegations to substantiate
his claim. As discussed, Plaintiff plausibly pleads there was not probable cause for the stop.

Consequently, it is plausible to infer that no reasonable officer could have believed Plaintiff was
engaged in criminal activity before the stop. The Court, therefore, can infer that the Officer

5 While not raised by Defendants, the Court notes that a plaintiff may plead facts upon information
and belief “where it can be shown that the requisite factual information is peculiarly within the
defendant’s knowledge or control – so long as there are no boilerplate and conclusory allegations
and plaintiffs accompany their legal theory with factual allegations that make their theoretically
viable claim plausible.” McDermott v. Clondalkin Grp., Inc., 649 F. App’x 263, 267-68 (3d Cir.
2016) (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002)
(internal punctuation omitted)). Facts pled on information and belief must “set forth the ‘specific
facts upon which the belief is reasonably based.’” ICU Med., Inc. v. RyMed Techs., Inc., 752 F.
Supp. 2d 486, 488 (D. Del. 2010) (citing Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312,
1328 (Fed. Cir. 2009).
Defendants’ explanation for the traffic stop was merely a pretext, as Plaintiff alleges. Id. As a
result, Plaintiff pleads an equal protection violation.
Next, Defendants argue that Plaintiff’s conspiracy claim should be dismissed because he
fails to plead facts demonstrating an agreement between Defendants or an underlying
constitutional violation. Defs. Br. at 6-7. To plead a civil conspiracy under Section 1983, a

plaintiff must show “that two or more co-conspirators reached an agreement for the purpose of
depriving constitutional rights under color of state law.” Stolinski v. Pennypacker, 772 F. Supp.
2d 626, 646 (D.N.J. 2011). Here, Plaintiff pleads that the Officer Defendants agreed with each
other to stop Plaintiff solely because he was African American. SAC ¶ 24. And as discussed,
Plaintiff sufficiently pleads a Section 1983 equal protection claim. Consequently, Plaintiff
adequately pleads a Section 1983 conspiracy claim.
In the Eighth Count, Plaintiff alleges that Defendant Rotondo failed to conduct an
appropriate investigation into Plaintiff’s IA complaint. Plaintiff alludes to a deprivation of his
liberty but does not set forth the legal basis for his claim. SAC ¶¶ 66-67. In Plaintiff’s state-law

based claims, however, Plaintiff explicitly states that this Court has supplemental jurisdiction over
the claim. See, e.g., FAC ¶ 44 (“Pursuant to 28 U.S.C. § 1367, this Court has pendant jurisdiction
to hear and adjudicate such claims.”). Plaintiff does not include this allegation in Count Eight.
Plaintiff also argues that Rotondo violated his constitutional rights in his opposition brief. Plf.
Opp. at 17. As a result, the Court construes Count Eight as a Section 1983 claim.
A failure to investigate claim is frequently construed as subset of municipal liability. See,
e.g., Forrest, 930 F.3d at 105 (explaining that “a failure or inadequacy by the municipality” is a
basis for a Section 1983 claim against a municipality). But Plaintiff does not assert his failure to
investigate claim as a basis for municipal liability. Rather, Plaintiff appears to assert the claim
against Rotondo individually. SAC ¶¶ 65-66. But the Court is not aware of any cases in which an
individual was held personally liable under Section 1983 for a failure to investigate.6 Plaintiff also
fails to identify any such cases, nor does he explain what constitutional violation such conduct
would amount to. Plaintiff, therefore, does not plead a failure to investigate claim against
Defendant Rotondo. Count Eight is dismissed.

B. Gross Negligence and Willful Misconduct (Count Nine)
Next, Defendants seek to dismiss Plaintiff’s claim for gross negligence and willful
misconduct because it is conclusory. Defs. Br. at 18-19. “Negligence involves a breach of a duty
of care that causes injury.” Roccisano v. Township of Franklin, No. 11-6558, 2013 WL 3654101,
at *11 (D.N.J. July 12, 2013) (citing Weinberg v. Dinger, 542 A.2d 366, 373 (N.J. 1987)). Thus,
“to succeed on a negligence claim, a plaintiff must show: (1) a duty of care, (2) a breach of that
duty, (3) causation, and (4) actual damages.” Id. (citing Weinberg,542 A.2d at 373). As to gross
negligence, “the difference between gross and ordinary negligence is one of degree rather than of
quality.” Smith v. Kroesen, 9 F. Supp. 3d 439, 442 (D.N.J. 2014) (quoting Fernicola v. Pheasant

Run at Barnegat, No. A-2027-08T1, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. July 2,
2010)) (internal quotations omitted). “[W]here as negligence is the failure to exercise ordinary or
reasonable care . . . , gross negligence is the failure to exercise slight care or diligence.” Steinberg
v. Sahara Sam’s Oasis, LLC, 142 A.3d 742, 754 (N.J. 2016). Gross negligence, however, “does
not require willful or wanton misconduct or recklessness.” Id. To that end, “[w]illful misconduct
falls somewhere “between simple negligence and the intentional infliction of harm.” Fielder v.

6 The Court acknowledges that supervisor policymakers may be liable under Section 1983 for their
failure to supervise or investigate subordinates. See Doe ex rel. Doe v. Small, --- F. Supp. 3d ---,
2023 WL 1750405, at *6 (D.N.J. Feb. 2, 2023) (explaining the theories for Section 1983
supervisory liability). Plaintiff does not allege that Rotondo was a supervisor or policymaker, nor
does the failure to investigate claim appear to be premised on a supervisor liability theory.
Stonack, 661 A.2d 231, 242 (N.J. 1995). Although there is not precise definition for willful
misconduct, “in the context of a police officer’s enforcement of the law, . . . willful misconduct is
ordinarily limited to a knowing violation of a specific command by a superior officer, or a standing
order, that would subject that officer to discipline.” Alston v. City of Camden, 773 A.2d 693, 702
(N.J. 2001) (quoting Fielder, 661 A.2d at 243).

The Court agrees that Plaintiff’s gross negligence claim is conclusory. Critically, Plaintiff
simply pleads that the Officer Defendants were grossly negligent but fails to set forth what duty
the Officer Defendants owed to Plaintiff and how their alleged conduct breached that duty.
Plaintiff’s willful misconduct claim is also conclusory. Namely, the SAC does not include
allegations that any Defendant knowingly violated orders when conducting the traffic stop at issue.
While the Court acknowledges that the standard of willful misconduct is not immutable, Plaintiff
makes no effort to explain how any Defendant’s conduct amounts willful misconduct.
Accordingly, Count Nine is dismissed.
C. Negligent Infliction of Emotional Distress (Count Four)

Finally, Defendants argue that Plaintiff fails to state a claim for negligent infliction of
emotional distress. Defendants again maintain that Plaintiff’s claim is conclusory. Defs. Br. at
20-21. A plaintiff must demonstrate the following to plead such a claim: “(a) defendant owed a
duty of reasonable care to plaintiff; (b) defendant breached that duty; (c) plaintiff suffered severe
emotional distress; and (d) defendant’s breach of duty was the proximate cause of the injury.”7
Dello Russo v. Nagel, 817 A.2d 426, 435 (N.J. Super. Ct. App. Div. 2003) (citing Decker v.

7 In arguing that Plaintiff fails to state a claim, Defendants partially rely on the standard for a claim
of bystander negligent infliction of emotional distress. Defs. Br. at 20-21. Bystander liability
applies “if the plaintiff witnessed the death or serious physical injury of another, with whom he
shares a marital or intimate, familial relationship.” Innes v. Marzano-Lesnevich, 87 A.3d 775, 797
(N.J. Super. Ct. App. Div. 2014). Nothing in the SAC suggests that bystander liability is at issue.
Princeton Packet, 561 A.2d 1122, 1128 (N.J. 1989)). To be actionable, “the claimed emotional
distress must be sufficiently substantial to result in physical illness or serious psychological
sequelae.” Jnnes v. Marzano-Lesnevich, 87 A.3d 775, 797 (N.J. Super. Ct. App. Div. 2014)
(quoting Aly v. Garcia, 754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div. 2000)). Plaintiffs claim
is conclusory. For example, Plaintiff pleads that he suffered from “anxiety and mental anguish”
because of Defendants’ conduct, SAC { 48, but fails to include specific allegations to support this
conclusory claim. Accordingly, Count Four is also dismissed.
IV. CONCLUSION
For the foregoing reasons, and for good cause shown
IT IS on this 31st day of July, 2023,
ORDERED that Defendants’ motion to dismiss, D.E. 43, is GRANTED in part and
DENIED in part; and it is further
ORDERED that Defendants’ motion is GRANTED with respect to Counts Four, Five,
Eight and Nine. Accordingly, these counts are dismissed without prejudice; and it is further
ORDERED that with respect to the dismissed counts, Plaintiff is provided thirty (30) days
to file an amended complaint that cures the deficiencies noted herein. If Plaintiff does not file an
amended pleading within that time, these counts will be dismissed with prejudice; and it is further
ORDERED that Defendants’ motion is otherwise DENIED.

ve WOON A a
John\Michael Vazquez,U.S\D.J.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655700. Public record. Not legal advice.