LOVE

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LEMONT LOVE, et al.,

Plaintiffs,

Civil Action No. 25-13816 (ZNQ) (JBD)

v.

OPINION

BOROUGH OF MILLTOWN, et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon three Motions: (1) Motion for Default

Judgment filed by pro se Plaintiffs Jessica Love and Lemont Love (collectively, “Plaintiffs”) on

September 3, 2025 (ECF No. 12); (2) Motion to Dismiss and Vacate Default filed by Defendants

Home Depot Store #0928, Home Depot U.S.A., Inc., and Christopher Slavin (collectively, “Home

Depot Defendants”) on September 12, 2025 (ECF No. 21); and (3) Motion to Dismiss filed by

Defendants Borough of Milltown, Carmen DeLorenzo, Christopher Johnson, Milltown Police

Department, Armando Rosario, Jr., Christopher Slavin, and Eric Wachenheim (collectively,

“Milltown Defendants”) on September 22, 2025 (ECF No. 26).1

The Court has carefully considered the parties’ submissions and decides the Motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.2

1 It is not clear to the Court why the Home Depot Defendants and Milltown Defendants both claim to include

Christopher Slavin, who is alleged to be a Loss Prevention Officer at Home Depot. Nevertheless, as will be discussed

herein, Defendant Slavin will be dismissed from this action.

2 Unless otherwise noted, references to “Rule” refer to the Federal Rules of Civil Procedure.

For the reasons set forth below, the Court will DENY Plaintiffs’ Motion for Default Judgment,

GRANT-IN-PART and DENY-IN-PART the Home Depot Defendants’ Motion to Dismiss and

Vacate Default, and GRANT-IN-PART and DENY-IN-PART the Milltown Defendants’ Motion

to Dismiss.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Procedural History

On June 4, 2025, Plaintiffs filed a Complaint against the Home Depot Defendants and

Milltown Defendants in the Superior Court of New Jersey. (ECF No. 1, Ex. A at 1.) The Milltown

Defendants then removed the action to this Court on July 28, 2025, and subsequently filed a Motion

to Dismiss. (ECF Nos. 1, 4.) Thereafter, Plaintiffs filed a Motion to Amend the Complaint (ECF

No. 5), which the Court granted on August 25, 2025 (ECF No. 8). That same day, the Clerk’s

Office entered default against the Home Depot Defendants.

On September 3, 2025, Plaintiffs filed a Motion for Default Judgment against the Home

Depot Defendants. (“Default Judg. Mot.,” ECF No. 12.) A week later, Plaintiffs filed an Amended

Complaint (“FAC”) against all Defendants. (“FAC,” ECF No. 15.) On September 12, 2025, the

Home Depot Defendants filed a consolidated Motion to Dismiss, a Request to Vacate Default, and

an Opposition to Plaintiffs’ Motion for Default Judgment. (“Home Depot Mot.,” ECF No. 21.)

Plaintiffs filed an Opposition Brief to the Home Depot Defendants’ Motion the next day. (“Home

Depot Opp.,” ECF No. 22.) The Home Depot Defendants did not file a Reply Brief.

On September 22, 2025, the Milltown Defendants filed a Motion to Dismiss. (“Milltown

Mot.,” ECF No. 26.) Two days later, Plaintiffs filed an Opposition Brief to the Milltown

Defendants’ Motion. (“Milltown Opp.,” ECF No. 29.) The Milltown Defendants filed a Reply

Brief on October 6, 2025. (“Milltown Reply,” ECF No. 32.)

B. Background

As alleged, Plaintiffs Lemont Love (“Mr. Love”) and Jessica Love (“Mrs. Love”) were at

Home Depot on July 2, 2024, in Milltown, New Jersey. (FAC. ¶¶ 14, 28.) Mr. Love is African

American and Mrs. Love is Hispanic. (Id. ¶¶ 1–2.) According to Plaintiffs, Mr. Love purchased

merchandise from Home Depot and subsequently put those items in his vehicle. (Id.) Despite

lawfully purchasing these items, Defendant Christopher Slavin (“Mr. Slavin”) falsely accused

Plaintiffs of shoplifting and called the police, an accusation Plaintiffs claim was racially motivated.

(Id. ¶¶ 19, 31, 45.) There was apparently no basis for Mr. Slavin’s accusations, and he did not

observe Plaintiffs shoplifting. (Id. ¶ 19.) Although there is uncertainty over Mr. Slavin’s identity,

he is allegedly a Loss Prevention Officer at Home Depot.3 (Id. ¶ 11.)

Eventually, Milltown Police Officers Armando Rosario, Carmen DeLorenzo, and Eric

Wachenheim (the “Officer Defendants”) arrived at the scene. (Id. ¶¶ 20–22.) Once at Home

Depot, Officers Rosario and DeLorenzo stopped Plaintiffs and searched Mr. Love’s car without

his consent or a warrant. (Id. ¶¶ 15, 20–21, 30.) Officer Wachenheim approved of and supervised

the search. (Id. ¶ 22.) During the search, at the direction of the Officer Defendants, Mr. Slavin

identified items that had allegedly been stolen and removed them from Mr. Love’s vehicle. (Id.

¶¶ 16, 23.)

According to Plaintiffs, they informed the Officer Defendants that they had lawfully

purchased the merchandise and that the receipts for the items were located in the car. (Id. ¶ 43.)

3 The Home Depot Defendants contend that Mr. Slavin is not, and has never been, employed by Home Depot. (Home

Depot Mot. at 18.) Plaintiffs do not dispute this, but rather argue that they learned of Mr. Slavin’s identity through

their former attorney in a related criminal matter, and, based on that information, named him in this lawsuit. (Id.)

Plaintiffs further contend that they should be allowed to amend the complaint with a “John Doe” until the Loss

Prevention Officer involved in the underlying conduct is identified. For clarity and consistency within this Opinion,

the Court will refer to the Loss Prevention Officer as “Mr. Slavin.” However, as explained below in Section III(A)(3),

the Court will permit Plaintiffs to amend the complaint and substitute “Mr. Slavin” with “John Doe – Loss Prevention

Officer.”

The Officer Defendants allegedly ignored this evidence and continued with the warrantless search

and arrest of Plaintiffs. (Id. ¶¶ 43–46.)

Plaintiffs further allege that Officer Wachenheim detained Mrs. Love and placed her in the

back of a police vehicle with the windows rolled up and without air conditioning. (Id. ¶ 34.) At

the time, Mrs. Love was pregnant, and the heat index was 86 degrees Fahrenheit. (Id. ¶¶ 34–35.)

Plaintiffs contend that Mrs. Love’s detention in a hot car endangered her and her fetus, and that

she was displaying visible signs of heat exhaustion. (Id. ¶¶ 34, 37.) Allegedly, none of the Officer

Defendants made an effort to provide Mrs. Love with medical attention and forced her to remain

in the police car.

Plaintiffs were transported to police headquarters and charged with shoplifting.4 (Id. ¶ 28.)

These charges were ultimately dismissed after Plaintiffs filed a motion to suppress. (Id.¶ 25.)

Prosecutors conceded that the search of Mr. Love’s car was unconstitutional and the state-court

judge subsequently granted Plaintiffs’ motion. (Id. ¶¶ 25, 47.)

In the meantime, Mr. Love’s car was impounded. (Id. ¶ 48.) When Mr. Love was able to

retrieve his car, he noticed that numerous items were missing, including the receipts that showed

the items had been lawfully purchased from Home Depot. (Id. ¶ 48.) According to Plaintiffs,

Defendants intentionally concealed or destroyed this evidence to falsely arrest and prosecute

Plaintiffs. (Id. ¶ 52.)

As a result of this alleged conduct, Plaintiffs bring seventeen causes of action, which can

be grouped into three categories: (1) federal constitutional claims brought under 42 U.S.C. § 1983

4 It is not clear whether both Mr. Love and Mrs. Love were arrested and charged with shoplifting. Some of the

allegations only state that Mrs. Love was arrested, while others claim that “Plaintiffs” were arrested. (FAC ¶¶ 55–

56.)

and 42 U.S.C. § 1985 (Counts I–IIIA, X, XIII, XIV); (2) state constitutional and statutory claims

(Counts IV, IX); and state tort claims (Counts V–VIII, XI, XII, XV, XVI).

II. SUBJECT MATTER JURISDICTION

The Court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C.

§ 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

III. DISCUSSION

A. Home Depot Defendants’ Motion

The Home Depot Defendants raise several arguments in their Motion. First, the Home

Depot Defendants contend that the Court should dismiss the FAC for insufficient service of

process pursuant to Rule 12(b)(2) and 12(b)(5). Second, the Home Depot Defendants argue that

the Court should vacate the Clerk’s entry of default and deny Plaintiffs’ Motion for Default

Judgment. Third, the Home Depot Defendants argue that the Court should dismiss the FAC for

failure to state a claim pursuant to Rule 12(b)(6). The Court will address each in turn.

1. Service of Process

The Home Depot Defendants argue that the Court should dismiss the FAC for insufficient

service of process pursuant to Rule 12(b)(2) and 12(b)(5). Under Rule 12(b)(2), a court may

dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). A court’s exercise

of personal jurisdiction over a defendant requires, at a minimum, the plaintiff to comply with the

procedural requirements of service. See Anderson v. ZFC Legal Title. I, Civ. No. 16–1499, 2016

WL 7408846, at *2 (D.N.J. Dec. 22, 2016) (citing Omni Cap. Int’l Ltd. v. Rudolf Wolff & Co., 484

U.S. 97, 104 (1987)). Under Rule 12(b)(5), “a party may file a motion asserting insufficient service

of process as a defense.” Id. “When a party moves to dismiss under Rule 12(b)(5), the party

making the service has the burden of demonstrating its validity.” Id. (quoting Laffey v. Plousis,

Civ. No. 05-2796, 2008 WL 305289, at *3 (D.N.J. Feb. 1, 2008), aff’d, 364 F. App’x 791 (3d Cir.

2010)).

Rule 4(e) states that individuals may be served by “following state law for serving a

summons in an action brought in courts of general jurisdiction in the state where the district court

is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Under New Jersey law, the method

for obtaining service over an individual is “by delivering a copy of the summons and complaint to

the individual personally, or by leaving a copy thereof at the individual’s dwelling place or usual

place of abode with a competent member of the household of the age of 14 or over then residing

therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive

service of process on the individual’s behalf.” N.J. Ct. R. 4:4-4(a)(1).

Corporations may be served by following “the manner prescribed by Rule 4(e)(1) for

serving an individual,” or “by delivering a copy of the summons and of the complaint to an officer,

a managing or general agent, or any other agent authorized by appointment or by law to receive

service of process and—if the agent is one authorized by statute and the statute so requires—by

also mailing a copy of each to the defendant.” Fed. R. Civ. P. 4(h)(1). Under New Jersey law,

corporations may be served:

[B]y serving a copy of the summons and complaint in the manner

prescribed by paragraph (a)(1) of this rule on any officer, director,

trustee or managing or general agent, or any person authorized by

appointment or by law to receive service of process on behalf of the

corporation, or on a person at the registered office of the corporation

in charge thereof, or, if service cannot be made on any of those

persons, then on a person at the principal place of business of the

corporation in this State in charge thereof, or if there is no place of

business in this State, then on any employee of the corporation

within this State acting in the discharge of his or her duties,

provided, however, that a foreign corporation may be served only as

herein prescribed subject to due process of law.

N.J. Ct. R. 4:4–4(a)(6). The burden of establishing proper service is on the party asserting the

validity of service, in this case Plaintiffs. See Poretskin v. Chanel, Inc., Civ. No. 23-22613, 2024

WL 714232, at *2 (D.N.J. Jan. 29, 2024).

Here, Plaintiffs filed a certificate of service indicating that the Summons and Complaint

for the Home Depot Defendants were served on Sylvia Taylor, whom Plaintiffs assert is a

“managing agent” authorized to accept service. (ECF Nos. 22-2–22-4.) However, the record does

not establish that Ms. Taylor was a managing or general agent authorized to accept service on

behalf of Home Depot. Indeed, her identity and role within the company remain unclear.

Plaintiffs’ briefing suggests that Ms. Taylor may have been merely an employee at a Home Depot

store in Milltown (Home Depot Opp. at 2), but such status alone is insufficient to demonstrate that

she qualifies as a managing agent of Home Depot, Inc., a Delaware corporation. (ECF No. 21-6.)

Accordingly, the Court cannot conclude that Plaintiffs properly served Home Depot or the Home

Depot Store.

With respect to Mr. Slavin, Plaintiffs likewise claim that service was proper because they

served the Summons and Complaint with Ms. Taylor. (ECF No. 22-4.) But there is no evidence

that Ms. Taylor was authorized to accept service on behalf of Mr. Slavin, or that Mr. Slavin was

served personally. Accordingly, Plaintiffs have also failed to properly serve Mr. Slavin.

Despite the improper service, the Court declines to dismiss the FAC. As explained by the

Third Circuit, “dismissal of a complaint is inappropriate when there exists a reasonable prospect

that service may yet be obtained.” Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). And

under Rule 4(m), a court must extend the time for service if the plaintiff shows good cause. Fed.

R. Civ. P. 4(m). Here, Plaintiffs have made reasonable (although faulty) attempts to serve the

Home Depot Defendants. In light of Plaintiffs’ pro se status and their mistaken belief as to the

validity of service, the Court finds that good cause exists for an extension of time to effectuate

service. Accordingly, the Court will extend the time for service to be made as to the Home Depot

Defendants by an additional 45 days from the date of this Opinion.5

2. Vacating the Clerk’s Entry of Default

Next, the Home Depot Defendants argue that the Court should vacate the Clerk’s entry of

default and deny Plaintiffs’ Motion for Default Judgment because they were not properly served.

(Milltown Mot. at 10–11.)

Given that the Court has determined that Plaintiffs did not properly serve the Home Depot

Defendants, the Court will VACATE the Clerk’s entry of default and DENY Plaintiffs’ Motion

for Default Judgment.

3. Failure to State a Claim

The Home Defendants also argue that the Complaint should be dismissed under Rule

12(b)(6) for failure to state a claim upon which relief can be granted. According to the Home

Depot Defendants, Mr. Slavin has never been employed by Home Depot, and any claims against

him must be dismissed. (Home Depot Mot. at 19.) They further contend that the FAC fails to set

forth any facts or omissions by Defendant Home Depot, and must likewise be dismissed.

Plaintiffs do not dispute that Mr. Slavin may not have been the Home Depot employee

involved in the underlying dispute. (Home Depot Opp. at 8.) According to Plaintiffs, they learned

of Mr. Slavin’s identity through their former attorney in the related criminal matter and, based on

that information, named him in this lawsuit. (Id.) Given the uncertainty regarding the identity of

the employee at issue, Plaintiffs concede that Mr. Slavin may be dismissed from this action. (Id.)

However, Plaintiffs request that he be replaced with a “John Doe Loss-Prevention Officer” until

5 The Court has since granted Plaintiffs’ request to proceed in forma pauperis and for service by the U.S. Marshals

Service. (ECF No. 27.) Plaintiffs should proceed with service accordingly.

the proper individual is identified. Accordingly, Mr. Slavin will be DISMISSED from this matter

and substituted with “John Doe Loss-Prevention Officer.”

As to the remaining Home Depot Defendants, the FAC adequately alleges that a Home

Depot employee engaged in unlawful conduct. (FAC ¶¶ 16, 17, 19, 28, 31, 45.) Although the

Home Depot Defendants contend that only two allegations are asserted against them, this argument

appears to rely on the original complaint rather than the FAC. Indeed, their Motion incorrectly

cites allegations in the original complaint, not the FAC. (Home Depot Mot. at 18–19.) Nor do the

Home Depot Defendants identify any substantive legal authority supporting their position that the

FAC fails to state a claim. As the moving party, the Home Depot Defendants bear the burden of

establishing entitlement to dismissal, and it is not the Court’s role to construct legal arguments on

their behalf. See Davis v. OneBeacon Ins. Group, 721 F. Supp. 2d 329, 338 (D.N.J. 2010) (“The

defendant bears the burden of showing that no claim has been presented.”). Because the Home

Depot Defendants have cited no legal authority warranting dismissal, and simultaneously seek

dismissal of the original complaint rather than the FAC, their motion to dismiss pursuant to Rule

12(b)(6) will be DENIED.

B. Milltown Defendants’ Motion

The Milltown Defendants advance several arguments in their Motion, which the Court

addresses below. As a threshold matter, however, Plaintiffs concede a number of those arguments.

First, Plaintiffs agree that the Milltown Police Department should be dismissed as duplicative of

the Borough of Milltown. (Milltown Opp. at 2.) Second, Plaintiffs concede that the claims against

the Officer Defendants should be dismissed to the extent they are asserted against the officers in

their official capacity. (Id. at 3.) Although Plaintiffs request that these dismissals be without

prejudice, the Court concludes that further amendment of the FAC would be futile. Accordingly,

the claims in the FAC are DISMISSED WITH PREJUDICE as to the Milltown Police

Department, and as to Defendants Armando Rosarior Jr., Eric Wachenheim, Carmen DeLorenzo,

and Christopher Johnson to the extent the claims against them are asserted in their official

capacities. The Court now turns to the remaining arguments raised in the Milltown Defendants’

Motion.

1. Whether the FAC Engages in Improper Group Pleading

The Milltown Defendants argue that Count III and III-A must be dismissed because

Plaintiffs have engaged in improper group pleading. (Milltown Mot. at 12–13.) Rule 8(a)(2)

requires a short and plain statement setting forth claims with enough specificity to “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550

U.S. at 555; Fed. R. Civ. P. 8(a)(2), (3). As a general rule, group pleading is not permitted. It

occurs when a complaint “fails to specify which of the defendants are responsible for which acts

or omissions, or which of the defendants the claim is brought against.” Richardson v. EzriCare,

LLC, Civ. No. 23-3498, 2024 WL 4349687, at *4 (D.N.J. Sept. 30, 2024) (quoting Foulke v. Twp.

of Cherry Hill, Civ. No. 23-02543, 2024 WL 3568841, at *7 (D.N.J. July 29, 2024)). The result

is a pleading in which “it is ‘virtually impossible to know which allegations of fact are intended to

support which claim(s) for relief.’” Id. (quoting Innovative Cosm. Concepts, LLC v. Brown

Packaging, Inc., Civ. No. 18-5939, 2020 WL 7048577, at *2 (D.N.J. Apr. 28, 2020)).

The Court finds that the FAC is not an impermissible group pleading. When reading the

FAC as a whole, the Court is able to discern which Defendants committed which actions. As

Plaintiffs point out in their Opposition Brief, the FAC alleges that Defendant Rosario responded

to the scene and participated in the stop and warrantless search. (FAC ¶¶ 20, 32.) The FAC also

alleges that Defendant DeLorenzo assisted in the stop and was involved in the search of the vehicle.

(Id. ¶ 21.) Simply because the FAC contains overlapping allegations against each Defendant for

engaging in similar conduct does not render it a group pleading. See Kyle K. v. Chapman, 208

F.3d 940, 943–44 (11th Cir. 2000); see also Watson v. Mercer County, Civ. No. 23-23318, 2026

WL 562790, at *9 (D.N.J. Feb. 27, 2026) (“While this case involves overlapping allegations,

overlapping allegations do not transform a complaint into an improper group pleading, and, in fact,

a plaintiff may permissibly allege that multiple defendants undertook the same action.”). Indeed,

the FAC places each Defendant on notice of the claims against him and specifies the alleged

conduct he engaged in. The Court is therefore satisfied that the FAC distinguishes which party

“had distinct roles in the alleged misconduct” and “which defendants engaged in what wrongful

conduct.” Falat v. Cnty. Of Hunterdon, Civ. No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar.

19, 2013).

2. Claims against Chief Johnson

The Milltown Defendants next assert that the § 1983 claims against Chief Johnson should

be dismissed because the FAC is devoid of allegations concerning his personal involvement in the

underlying conduct. (Milltown Mot. at 14–17.) As alleged, Chief Johnson is the Chief of Police

for the Milltown Police Department. (FAC ¶ 8.) In that role, he is “responsible for supervising

the department, setting internal policy, training officers, ensuring lawful conduct, and responding

to civilian complaints.” (Id.) Plaintiffs contend that Chief Johnson “failed to adequately train,

discipline, supervise, or take corrective action against subordinate officers involved in the unlawful

search, arrest, and mistreatment of Plaintiffs, and permitted a culture of racial profiling, reckless

policing, and constitutional violations to persist.” (Id.) Plaintiffs further allege that Chief Johnson

knew about Officers Rosario, DeLorenzo, and Wachenheim’s unconstitutional practices, but failed

to intervene, discipline, retrain, or remove these officers. (Id. ¶ 54.) As a result of this conduct,

Plaintiffs allege that Chief Johnson has supervisory liability under 42 U.S.C. § 1983. (FAC, Count

XIII.)

To a state a claim for supervisory liability under 42 U.S.C. § 1983, the plaintiff must allege

that the supervisors either “established and maintained a policy, practice or custom which directly

caused the constitutional harm,” or that they “participated in violating plaintiff’s rights, directed

others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their

subordinates’ violations.” Santiago v. Warminster Tp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)

(citation modified). “Allegations of participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). To sufficiently allege knowledge and acquiescence, a plaintiff must provide facts

suggesting that the defendant supervisor “had contemporaneous, personal knowledge of [the

alleged violations] and acquiesced in it.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

Here, the FAC contains no facts showing that Chief Johnson directly participated in or

directed others to violate Plaintiffs’ constitutional rights. The FAC is also devoid of facts showing

that Chief Johnson knew of and acquiesced to his subordinates’ constitutional violations. Indeed,

Plaintiffs’ allegations are entirely conclusory, merely stating that Chief Johnson received

complaints about Officers Rosario, DeLorenzo and Wachenheim and that he failed to discipline

them. (FAC ¶ 54.) The FAC does not elaborate any further on what those complaints were, when

they occurred, or who made them. Based upon this conclusory allegation, Plaintiffs assert that

Chief Johnson ratified the Officers’ conduct and permitted them to continue abusing their

authority. (Id.) These are precisely the kind of conclusory allegations that fail to state a claim

upon which relief can be granted. See O’Neal v. Middletown TP, Civ. No. 18-5269, 2019 WL

77066, at *7 (D.N.J. Jan. 2, 2019) (dismissing claims where the plaintiff alleged that the police

chief “had prior notice of similar incidents and violations” because they were “nothing but bare

conclusory allegations”); Janowski v. City of North Wildwood, 259 F. Supp. 3d 113, 131 (D.N.J.

2017) (holding police chief’s knowledge of prior incident involving subordinate officer was

insufficient to show that he had knowledge of or acquiesced in the unlawful conduct). Nor do

Plaintiffs allege facts concerning a specific policy, practice or custom that Chief Johnson

established or maintained that led to the alleged constitutional violations. Accordingly, Plaintiffs’

supervisory liability claim (Count XIII) against Chief Johnson will be DISMISSED WITHOUT

PREJUDICE.6

3. Whether the Officer Defendants are Entitled to Qualified Immunity

The Milltown Defendants also argue that the Officer Defendants are entitled to qualified

immunity for the claims brought under 42 U.S.C. § 1983 (Counts I-IIIA), the New Jersey

Constitution (Count IV), New Jersey state law (Count V), the New Jersey Civil Rights Act

(“NJCRA”) (Count IX), and 42 U.S.C. § 1985(3) (Count X). (Milltown Mot. at 18–25.) Qualified

immunity shields police officers from liability unless they violated clearly established rights. To

determine if an officer’s conduct is entitled to qualified immunity, courts ask first, “whether the

defendant’s conduct violated a statutory or constitutional right,” and second, “whether the right at

issue was clearly established when the conduct took place.” White v. City of Vineland, 500 F.

Supp. 3d 295, 304–05 (D.N.J. 2020) (citing Sauers v. Borough of Nesquehoning, 905 F.3d 711,

716 (3d Cir. 2018)).

For a constitutional right to be clearly established, it “must be defined with a ‘high degree

of specificity.’” Dennis v. City of Phila., 19 F.4th 279, 288 (3d Cir. 2021) (quoting District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018)); see Summerville v. Fuentes, Civ. No. 19-3240, 2021

6 The Milltown Defendants also argue that the remaining claims, to the extent they are brought against Chief Johnson,

should be dismissed because there are no allegations that he was personally involved in any of the underlying conduct.

(Milltown Mot. at 17.) The Court agrees. Because the only allegations relating to Chief Johnson involve his

supervisory liability, to the extent any of the remaining claims are brought against him, they will be DISMISSED

WITHOUT PREJUDICE.

WL 4129563, at *2 (3d Cir. Sept. 10, 2021). “[C]ourts are ‘not to define clearly established law

at a high level of generality.’” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir.

2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). To accept too broad a version of

the right at issue would “convert the rule of qualified immunity . . . into a rule of virtually

unqualified liability simply by alleging violation of extremely abstract rights.” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 639 (1987)). A court is thus required to frame the right at

issue “in a more particularized, and hence more relevant, sense”, in light of the case’s specific

context, not as a broad general proposition. Id. at 640. The confines of a clearly established

constitutional right “must be sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (citation modified); see Summerville, 2021 WL 4129563, at *2.

“[C]learly established rights are derived either from binding Supreme Court and Third

Circuit precedent or from a ‘robust consensus of cases of persuasive authority in the Courts of

Appeals.’” James v. New Jersey State Police, 957 F.3d 165, 170 (3d Cir. 2020) (quoting Bland v.

City of Newark, 900 F.3d 77, 84 (3d Cir. 2018)); District of Columbia, 583 U.S. at 63 (“The rule

must be ‘settled law’ . . . which means it is dictated by ‘controlling authority’ or ‘a robust

“consensus of cases of persuasive authority.’”). “Qualified immunity will be upheld on a 12(b)(6)

motion only when the immunity is established on the face of the complaint.” Leveto v. Lapina,

258 F.3d 156, 161 (3d Cir. 2001).

In the FAC, Plaintiffs assert claims related to unlawful search (counts I, IV), false arrest

(counts II, V), malicious prosecution (counts III, VI), fabrication of evidence (count III-A),

violations of the NJCRA (count IX), and a race-based conspiracy to deprive Plaintiffs of equal

rights under 42 U.S.C. § 1985 (count X). Based on the allegations in the FAC, Plaintiffs have

sufficiently alleged a violation of each constitutional right, and each of these rights was clearly

established at the time of Plaintiffs’ arrest.

With respect to Plaintiffs’ claims for the allegedly unlawful search, the Supreme Court has

held that law enforcement may search any area of a vehicle where evidence could reasonably be

found, provided there is probable cause to believe the vehicle contains evidence of criminal

activity. See Arizona v. Gant, 556 U.S. 332, 347 (2009). Similarly, law enforcement may only

arrest an individual if there is probable cause to believe that individual committed a crime. See

Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007). A malicious prosecution claim, likewise,

requires a defendant to establish that law enforcement did not have probable cause to bring a

charge. See id. Thus, as to these claims, the Court must determine whether the Officer Defendants

had probable cause.

“Probable cause exists where the facts and circumstances within the arresting officer’s

knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense

has been or is being committed by the person to be arrested.” United States v. Cruz, 910 F.2d

1072, 1076 (3d Cir. 1990). An arresting officers’ subjective beliefs at the time of the arrest are

irrelevant; all that matters is whether the objective facts establish that probable existed to believe

that a crime had been committed. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In

conducting this analysis, courts look at the totality of the circumstances. See District of Columbia,

583 U.S. at 57.

In its Motion, the Milltown Defendants contend that the Officer Defendants had probable

cause to search and arrest Plaintiffs based on the information they received from Home Depot’s

loss prevention officer, Mr. Slavin. (Milltown Mot. at 21.) According to the Milltown Defendants,

a tip from an anonymous source establishes probable cause to arrest and detain the target of the

tip. (Id.)

But the existence of the tip from Mr. Slavin is only one fact that is alleged to have been

within the Officer Defendants’ knowledge. As alleged, Plaintiffs pointed the Officer Defendants

to the receipts for the items purportedly stolen. (FAC ¶ 17.) The Officer Defendants then allegedly

confiscated and destroyed the receipts in an effort to manufacture criminal charges against

Plaintiffs. (Id. ¶¶ 17, 30, 50–53.) Moreover, none of the Officer Defendants conducted any

meaningful investigation into whether Plaintiffs had stolen the items, instead relying solely on Mr.

Slavin’s unsubstantiated claims and destroying exculpatory evidence. (Id. ¶¶ 32, 43.) Based on

this conduct, the Officer Defendants searched Mr. Love’s car without a warrant, arrested Plaintiffs,

and charged them with shoplifting. (Id. ¶¶ 24–26.) These charges were later dismissed. (Id. ¶

25.)

In light of the foregoing, the FAC plausibly alleges that the Officer Defendants lacked

probable cause to search the vehicle or arrest Plaintiffs, and that the shoplifting charges were

initiated only after the destruction of exculpatory evidence. Indeed, the presentation of exculpatory

evidence (i.e., the receipts), undermines the notion Plaintiffs committed any crime. Plaintiffs have

therefore adequately alleged a violation of their constitutional rights. Moreover, existing caselaw

clearly establishes that law enforcement may not conduct a warrantless search of a vehicle, or

arrest and prosecute an individual, without probable cause. See Evans v. Newark City, 152 F. 4th

537, 546 (3d Cir. 2025) (arrest and prosecution without probable cause violates clearly established

constitutional right); Fong v. City of Newark, Civ. No. 22-7243, 2023 WL 8947378, at *7 (D.N.J.

Dec. 28, 2023) (“The constitutional right to be free from warrantless searches has been so clearly

established that a reasonable officer would have understood that warrantless searches not

supported by probable cause and exigent circumstances violate the Fourth Amendment.”)

As to the fabrication/destruction of evidence claim, Plaintiffs allege that the Officer

Defendants stole and intentionally destroyed the receipts for the items Plaintiffs purchased from

Home Depot. Although not specified, the Court construes this claim to allege a violation of

Plaintiffs’ due process rights under the Fourteenth Amendment. Accepting the FAC’s allegations

as true, the Officer Defendants are not entitled to qualified immunity on this claim either. See

Yarris v. Cnty. of Delaware, 465 F.3d 129, 142 (3d Cir. 2006). First, it is clear that the FAC

adequately alleges that the Officers violated Plaintiffs’ due process rights by intentionally

destroying the receipts, which undoubtedly would have exonerated Plaintiffs. See United States

v. Wilcox, Civ. No. 06-445, 2007 WL 2461820, at *6 (E.D. Pa. Aug. 28, 2007) (“The Police violate

a Defendant’s due process rights if, acting in bad faith, they destroy evidence with apparent

exculpatory value.”) Second, it is clearly established that law enforcement may not destroy

exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

The Officer Defendants also contend that they are entitled to qualified immunity on

Plaintiffs’ claim under 42 U.S.C. § 1985(3). (Milltown Mot. at 25.) However, their argument

rests entirely on the assertion that the Officers had probable cause to conduct a warrantless search

of Plaintiffs’ vehicle and to arrest them for shoplifting. Because the FAC adequately alleges that

the Officers lacked probable cause, the Court rejects the Officer Defendants’ qualified immunity

defense as to the § 1985(3) claim as well. Moreover, given that the Officer Defendants are not

entitled to qualified immunity for their federal constitutional claims, they are similarly not entitled

to qualified immunity for the state constitutional claims. See Estate of Martin v. U.S. Marshals

Serv. Agents, 649 F. App’x 239, 245 n.4 (3d Cir. 2016) (holding that the claims under the New

Jersey Constitution and New Jersey Civil Rights Act trigger the same legal elements and principles

as Federal Constitutional Claims). Accordingly, Counts I–V, IX, and X will be allowed to proceed

against the Officer Defendants in their individual capacities.

4. Whether Plaintiffs’ State Law Tort Claims Must be Dismissed

Next, the Milltown Defendants contend that the state-law tort claims against them should

be dismissed because Plaintiffs did not file a notice of tort claim pursuant to the New Jersey Tort

Claims Act (“NJTCA”). (Milltown Mot. at 26.) Pursuant to the NJTCA, “a claimant must file a

notice of claim upon a public entity or public employee ‘not later than the ninetieth day after

accrual of the cause of action.’” McDade v. Siazon, 208 N.J. 463, 468 (2011) (quoting N.J.S.A.

59:8-8). A notice of claim must be filed directly with the entity at issue. See id. at 476.

If a claimant fails to file a notice of claim with the public entity within 90 days of accrual

of the claim, the “claimant shall be forever barred from recovering against a public entity or public

employee,” unless the claimant can show that “extraordinary circumstances” exist for the failure

to file the claim and that the public entity or public employee will not be “substantially prejudiced.”

N.J.S.A. 59:8-8–9; see also Rogers v. Cape May Cnty. Office of Public Defender, 208 N.J. 414,

427 (2011). Moreover, after 90 days has passed, the NJTCA requires the claimant to file an

“[a]pplication to the court for permission to file a late notice of claim.” N.J.S.A. 59:8–9. The

application must be “supported by affidavits based upon personal knowledge of the affiant

showing sufficient reasons constituting extraordinary circumstances for his failure to” timely file

the notice of claim. Id.

Here, Plaintiffs assert that they filed a notice of claim on May 28, 2025, two days after the

dismissal of the criminal charges. (Milltown Opp. at 6.) However, that notice was submitted to

the State of New Jersey, Department of Treasury. (Milltown Opp., Ex. A.) Because Plaintiffs

bring their claims against the Borough of Milltown and its employees, they were required to serve

their notice of claim with Milltown, not the State. As the New Jersey Supreme Court made clear

in McDade, service on the wrong public entity does not “absolve plaintiffs of the obligation to . .

. serve a timely notice of claim” with the correct entity. 208 N.J. at 479. Courts have consistently

applied this rule to dismiss claims where plaintiffs filed notices with the incorrect entity. See

McNellis-Wallace v. Hoffman, 464 N.J. Super. 409, 420 (N.J. Super. Ct. App. Div. 2020); Murphy

v. Cnty. of Ocean, 2012 WL 3021087, at *3 (N.J. Super. App. Div. July 25, 2012). Accordingly,

Plaintiffs’ state-law tort claims (Counts V, VI, VII, VIII, XI, XII) against the Milltown Defendants

will be DISMISSED WITHOUT PREJUDICE. Should Plaintiffs wish to renew their state law

claims, they must first file the appropriate application as outlined in N.J.S.A. § 59:8-8–9.

5. Declaratory and Injunctive Relief

Finally, the Milltown Defendants assert that Plaintiffs’ request for declaratory and

injunctive relief should be dismissed because it is not an appropriate remedy. (Milltown Mot. at

29–30.) However, at this stage of the proceeding, the Court need not decide whether this remedy

is appropriate. If Plaintiffs ultimately succeed on any of their claims, the Court will determine the

appropriate remedy at such time. Accordingly, the Milltown Defendants’ request to deny

Plaintiffs’ requests for declaratory and injunctive relief is DENIED.

IV. CONCLUSION

For the reasons stated above, the Court will DENY Plaintiffs’ Motion for Default

Judgment, GRANT-IN-PART and DENY-IN-PART the Home Depot Defendants’ Motion to

Dismiss, and GRANT-IN-PART and DENY-IN-PART the Milltown Defendants’ Motion to

Dismiss. An appropriate Order will follow.

Date: April 28, 2026

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE