JUDY THORPE VS. JUSTIN SWIDLER, ESQ. (L-0274-17, MERCER COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0649-17T3
    JUDY THORPE,
    Plaintiff-Appellant,
    v.
    JUSTIN SWIDLER, ESQ., and
    KARPF, KARPF & VIRANT, PC,
    Defendants-Respondents.
    Argued March 6, 2019 – Decided May 7, 2019
    Before Judges Koblitz, Currier, and Mayer.
    On appeal from Superior Court of New Jersey, Law
    Division, Mercer County, Docket No. L-0274-17.
    Judy Thorpe, appellant, argued the cause pro se.
    Stephen T. Bissell argued the cause for respondents
    (Rebar Bernstiel, attorneys; Cathleen Kelly Rebar and
    Stephen T. Bissell, of counsel and on the brief).
    PER CURIAM
    Plaintiff Judy Thorpe appeals from the orders denying her leave to file an
    amended complaint and the subsequent dismissal of the complaint.            After
    reviewing her contentions in light of the record and applicable principles of law,
    we affirm.
    We provided a thorough recitation of the facts in a prior decision in this
    matter, and therefore do not repeat them here. Thorpe v. State Juvenile Justice
    Comm'n, Nos. A-0104-11, A-5603-11 (App. Div. June 10, 2015). We include
    only a brief background necessary for the reader's comprehension.
    Plaintiff began working as a nurse for the New Jersey Juvenile Justice
    Commission (JJC) in 2005. Over the next several years, she filed several
    complaints with the Equal Employment Opportunity Office (EEO) of the New
    Jersey Department of Law and Public Safety.             The complaints alleged
    discrimination based on her age, race, and unlawful retaliation in violation of
    the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; violations of the
    Americans with Disabilities Act (ADA), 
    42 U.S.C. §§ 12101
     to 12213; and
    sexual harassment. EEO's investigations found the allegations meritless. The
    Civil Service Commission affirmed.
    In a four-month span, numerous subordinates filed harassment complaints
    against plaintiff. The JJC served plaintiff with multiple notices of disciplinary
    A-0649-17T3
    2
    action, charging her with insubordination and conduct unbecoming a public
    employee. When plaintiff refused to comply with the procedures necessary to
    return to work following a medical leave, the JJC sought to terminate her for
    failure to follow sick leave procedures, insubordination, and "other sufficient
    cause."
    After a hearing officer sustained the charges, plaintiff was terminated
    from her employment in 2008. She appealed, and the arbitrator found the JJC
    had just cause to terminate plaintiff. Plaintiff subsequently filed unfair practice
    charges against the JJC and her union with the Public Employment Relations
    Commission (PERC). PERC determined plaintiff's challenge to the arbitrator's
    decision was meritless.
    In 2008, plaintiff retained defendants Justin Swidler, Esq. and Karpf,
    Karpf & Virant, PC to represent her in a pursuit of her employment
    discrimination matter before the New Jersey Superior Court. Defendants filed
    a complaint against the JJC and others, alleging violations of the LAD, the
    Family Medical Leave Act (FMLA), 
    29 U.S.C. § 2615
     (a)(1), and the
    Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.
    After granting defendants summary judgment, the trial court dismissed
    plaintiff's complaint in 2010. In affirming the trial court's order, we stated:
    A-0649-17T3
    3
    In a thorough oral opinion, the [trial] judge found that
    all of plaintiff's claims had been unsuccessfully raised
    by her in her prior EEO complaints, and her Civil
    Service Commission, arbitration, and disciplinary
    proceedings. Therefore, the judge held that plaintiff
    was collaterally estopped from pursuing these same
    allegations in the Law Division. However, the judge
    went on to consider the merits of plaintiff's claims and
    found that plaintiff failed to establish a prima facie case
    of discrimination or retaliation under the LAD, CEPA,
    FMLA, or the common law.
    [Thorpe, slip op. at 11].
    After a de novo review, we agreed that plaintiff failed to establish her
    allegations of discrimination or retaliation.    In addition, we found the JJC
    "presented overwhelming evidence that all of their actions regarding plaintiff
    were based on legitimate business considerations . . . [and] plaintiff failed to
    present sufficient evidence to show that [the JJC's] reasons for their employment
    actions were a pretext for unlawful discrimination." 
    Id. at 16
    . We also found
    plaintiff's CEPA claims were meritless. 
    Id. at 16-17
    .
    The litigation before us arises out of plaintiff's suit against defendants
    filed in December 2016. In her complaint, plaintiff alleged multiple causes of
    action, including professional negligence regarding defendants' representation
    of her in the employment discrimination matter. Defendants moved to dismiss
    the complaint, contending the statute of limitations barred plaintiff's claims, and
    A-0649-17T3
    4
    plaintiff was collaterally estopped from asserting a legal malpractice action due
    to the myriad of decisions determining her underlying claims were meritless.
    At plaintiff's request, defendants' motion was adjourned several times.
    Then, two days before the scheduled argument date, and over two months after
    the filing of defendants' motion, plaintiff filed a cross-motion seeking leave to
    file an amended complaint.1
    In an oral decision on July 28, 2017, the trial judge first addressed
    plaintiff's motion. She determined the legal malpractice claim accrued, "at the
    latest, in early 2011 when plaintiff allege[d] she read the transcript of the
    summary judgment hearing and discovered defendants' [negligence]."
    Therefore, the proposed amended complaint filed in July 2017 was untimely
    under the six-year statute of limitations.    See N.J.S.A. 2A:14-1.     Because
    plaintiff's "proposed amended complaint set[] forth entirely new facts and events
    to support her claim," it could not relate back to the original filing date under
    Rule 4:9-3. The motion to file an amended complaint was denied.
    1
    The motion judge described the proposed amended complaint as "entirely
    unlike the previous complaint in style and content." In contrast to the original
    six-page complaint, the sixteen-page proposed amended complaint contained a
    "ten page fact section with multiple subsections replete with allegations never
    before seen by the [c]ourt," including over 100 averments.
    A-0649-17T3
    5
    In turning to defendants' dismissal motion under Rule 4:6-2, the judge
    noted the original "complaint only contain[ed] factual allegations [of]
    professional negligence or legal malpractice." She stated:
    Because plaintiff's alleged damages flow from losing an
    employment discrimination case, she must ultimately
    [prove] that if defendants had not breached their duty
    of care, she would have been successful [in] that matter.
    ....
    Plaintiff could not have prevailed in any of her
    claims regardless of defendants' actions. . . . The
    Appellate Division found overwhelming evidence that
    plaintiff's employer dismissed her . . . for legitimate
    business reasons.
    As a result, the judge dismissed the complaint with prejudice. 2 Subsequent
    motions for reconsideration and to vacate the July 21, 2017 orders were denied.
    Plaintiff argues on appeal that the trial judge erred in denying her leave to
    amend the complaint and in granting defendants' motion for dismissal. We
    disagree.
    Although a motion presented under Rule 4:9-1 should be liberally granted,
    it nevertheless remains within the court's discretionary purview whether to grant
    leave. Kernan v. One Washington Park Urban Renewal Assocs., 
    154 N.J. 437
    ,
    2
    The orders are dated July 21, 2017.
    A-0649-17T3
    6
    456-57 (1998).     If it is clear that the amendment is meritless and cannot
    withstand dismissal under a Rule 4:6-2 application, it is not an abuse of
    discretion to deny the motion to amend. Notte v. Merchs. Mut. Ins. Co., 
    185 N.J. 490
    , 501 (2006). It is "error to permit an amendment that fails to state a
    cause of action on which relief can be granted." Pressler & Verniero, Current
    N.J. Court Rules, cmt. 2.2.1 on R. 4:9-1 (2019) (citing Howard v. Univ. of Med.
    & Dentistry of N.J., 
    172 N.J. 537
    , 559-60 (2002)).
    After receiving defendants' motion for dismissal, plaintiff opposed the
    motion and requested several adjournments of the hearing. More than two
    months later, and just two days before the hearing, plaintiff moved for leave to
    amend her complaint. As the trial judge noted, the new complaint was "entirely
    unlike" the original complaint as it contained new legal theories premised on
    new factual allegations.
    Plaintiff learned in December 2010 that summary judgment was granted
    to the defendants in the employment discrimination action; she stated she read
    the transcript of the summary judgment hearing in early 2011. Therefore, the
    statute of limitations expired, at the latest, in early 2017. Plaintiff did not move
    to amend her complaint until July 2017, after the expiration of the statute of
    limitations. The proposed amended complaint contained distinctly new and
    A-0649-17T3
    7
    different claims and factual allegations. Therefore, it could not relate back to
    the original complaint filing under Rule 4:9-3. See Young v. Schering Corp.,
    
    275 N.J. Super. 221
    , 230-31 (App. Div. 1994). We cannot discern an abuse of
    discretion in the denial of the motion to amend.
    In reviewing a Rule 4:6-2(e) dismissal, we employ the same standard as
    that applied by the trial court. Donato v. Moldow, 
    374 N.J. Super. 475
    , 483
    (App. Div. 2005). Our review is limited to the "legal sufficiency of the facts
    alleged in the complaint." 
    Id. at 482
    . (citing Printing Mart-Morristown v. Sharp
    Elecs. Corp., 
    116 N.J. 739
    , 746 (1989)). We "assume the facts as asserted by
    plaintiff are true," and we give the plaintiff "the benefit of all inferences that
    may be drawn." Banco Popular N. Am. v. Gandi, 
    184 N.J. 161
    , 166 (2005)
    (quoting Velantzas v. Colgate-Palmolive Co., 
    109 N.J. 189
    , 192 (1988)).
    "Where, however, it is clear that the complaint states no basis for relief and that
    discovery would not provide one, dismissal of the complaint is appropriate."
    Cty. of Warren v. State, 
    409 N.J. Super. 495
    , 503 (App. Div. 2009).
    Plaintiff's argument that the trial court erred in dismissing her complaint
    lacks sufficient merit to warrant discussion in a written opinion.        R. 2:11-
    3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge
    as reflected in her well-reasoned oral opinion of July 28, 2017. This court
    A-0649-17T3
    8
    previously determined that the JJC terminated plaintiff for legitimate business
    reasons. As a result, plaintiff could not, and did not, prove essential elements
    of her LAD and CEPA claims. Therefore, any allegations of negligence by
    defendants are immaterial. Their actions, right or wrong, could not change the
    deficiencies in plaintiff's claims. As she could not sustain a cause of action
    against defendants, her complaint was rightfully dismissed under Rule 4:6-2.
    Affirmed.
    A-0649-17T3
    9