DREW BRADFORD VS. DETECTIVE JOHN DAPKINS (L-5383-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1360-16T4
DREW BRADFORD,
Plaintiff-Appellant,
v.
DETECTIVE JOHN DAPKINS,
SERGEANT NANCY ARRAIAL,
and TOWNSHIP OF BEDMINSTER,
Defendants-Respondents.
______________________________
Submitted April 23, 2018 – Decided July 18, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-5383-15.
Drew Bradford, appellant pro se.
DiFrancesco, Bateman, Kunzman, Davis, Lehrer
& Flaum, PC, attorneys for respondents
(Timothy P. Beck, on the brief).
PER CURIAM
Plaintiff Drew Bradford appeals from an October 28, 2016
order denying his motion for leave to file a second amended
complaint. We affirm.
In his first amended complaint, plaintiff asserted various
causes of action against defendants John Dapkins, Nancy Arraial,
and Bedminster Township, which included slander, malicious
prosecution, intentional infliction of emotional distress, and
loss of freedom of speech. At the time defendants allegedly
committed these wrongs, Dapkins was a detective and Arraial a
sergeant employed by the Bedminster Township Police Department.
Defendants filed a motion to dismiss the first amended
complaint for failure to state a claim upon which relief can be
granted, see R. 4:6-2(e). In a comprehensive oral opinion,
Judge Andrea G. Carter analyzed each cause of action asserted
and determined plaintiff did not in fact state a claim upon
which relief can be granted and dismissed the complaint without
prejudice.
Plaintiff filed a motion for leave to file a second amended
complaint. The material factual allegations set forth in the
second amended complaint are for the most part the same or
essentially the same as those alleged in the first amended
complaint, although plaintiff did provide additional alleged
facts regarding his claim defendants slandered and deprived him
of his freedom of speech. He also asserted defendants violated
42 U.S.C. § 1983.
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The gist of plaintiff's claim for slander is as follows.
In September 2014, plaintiff telephoned Dapkins and advised he
believed his neighbor, Gloria Mino, had informed his other
neighbors that he was a "child kidnapper." Plaintiff wanted
Dapkins to question Mino about his suspicions. Plaintiff also
spoke to Craig Meyer, the Chief of the Bedminster Police
Department, about his concerns and requested Mino be questioned.
Plaintiff claims Dapkins subsequently questioned Mino who,
allegedly angered by plaintiff's requests she be questioned by
the police, filed a private citizen's complaint in municipal
court claiming plaintiff harassed her, in violation of N.J.S.A.
2C:33-4(a) and (c). Specifically, plaintiff theorizes Dapkins
induced Mino into filing the complaint by slandering him. The
claimed slander is Dapkins told Mino plaintiff wanted her
questioned by the police. A municipal court judge ultimately
dismissed Mino's complaint.
Plaintiff also notes Mino filed another complaint against
him in municipal court as a private citizen, alleging plaintiff
harassed another by attempting to assault such party. Plaintiff
claims Dapkins' aforementioned slanderous statements also caused
Mino to file this other complaint, but plaintiff admits the
allegations of such complaint are true. The disposition of this
particular municipal court complaint is not clear.
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In the second amended complaint, plaintiff added the claim
that defendants Dapkins and Arraial violated 42 U.S.C. § 1983;
the complaint is bereft of any detail of how defendants did so.
Finally, plaintiff added some marginal points about his claim
that he was deprived of his freedom of speech, which we find
unnecessary to recount here. On October 28, 2016, the court
entered an order denying plaintiff's motion to file his proposed
second amended complaint, stating the complaint did not "cure
the legal insufficiency of the claims outlined therein."
On appeal, plaintiff contends the trial court erred when it
found the second amended complaint failed to set forth any
viable causes of action. Plaintiff does not challenge the
court's earlier ruling that the first amended complaint does not
include any causes of action upon which relief may be granted.
We are mindful that motions for leave to amend pleadings
are to be liberally granted. Prime Accounting Dep't v. Twp. of
Carney's Point, 212 N.J. 493, 511 (2013) (citing Kernan v. One
Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998)).
However,
[o]ne exception to that rule arises when the
amendment would be "futile," because "the
amended claim will nonetheless fail and,
hence, allowing the amendment would be a
useless endeavor." Notte v. Merchants Mut.
Ins. Co., 185 N.J. 490, 501 (2006).
"'[C]ourts are free to refuse leave to amend
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when the newly asserted claim is not
sustainable as a matter of law. . . .
[T]here is no point to permitting the filing
of an amended pleading when a subsequent
motion to dismiss must be granted.'" Ibid.(quoting Interchange State Bank v. Rinaldi,
303 N.J. Super. 239, 256-57 (App. Div.
1997)).
[Ibid. (alterations in original).]
Here, except in three respects, the proposed second amended
complaint is, for all intents and purposes, a replica of the
first, which the court found devoid of any viable cause of
action, a determination plaintiff does not contest.
Accordingly, the legal deficiencies that existed in the first
amended complaint are present in the proposed complaint.
Plaintiff does embellish upon the facts underpinning his
claim for slander and the deprivation of his freedom of speech
in the second amended complaint, and further claims Dapkins and
Arraial violated 42 U.S.C. § 1983. However, we are satisfied
from our review of this pleading that none of the additional
facts or the new claim in any way refutes the trial court's
implicit conclusion the proposed second amended complaint fails
to assert a viable cause of action. Plaintiff's claim that it
does is entirely devoid of merit and does not warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E). The trial
judge reasonably denied the motion for leave to file the second
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amended complaint. It would have been futile to permit
plaintiff to file an amended complaint when none of the claims
in it was sustainable as a matter of law. Notte, 185 N.J. at
501-02.
Affirmed.
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