JEFFREY SMITH v. SUSSEX COUNTY PROSECUTOR'S OFFICE (L-0430-20, SUSSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2896-20
JEFFREY SMITH,
Plaintiff-Appellant,
v.
SUSSEX COUNTY
PROSECUTOR'S OFFICE,
SUSSEX COUNTY
PROSECUTOR FRANCIS
KOCH, FIRST ASSISTANT
PROSECUTOR GREGORY
MUELLER and CAPTAIN
DONALD PETER (RET.),
Defendants-Respondents.
__________________________
Argued June 8, 2022 – Decided July 19, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0430-20.
George T. Daggett argued the cause for appellant.
Justine M. Longa, Deputy Attorney General, argued the
cause for respondents (Matthew J. Platkin, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Brett J.
Haroldson, Deputy Attorney General, on the brief).
PER CURIAM
Plaintiff Jeffrey Smith, a law enforcement officer, appeals from a March
5, 2021 Law Division order dismissing his complaint with prejudice , and an
April 16, 2021 order denying reconsideration. The complaint revolved around
the disclosure of plaintiff's designation as a "Giglio" officer. In Giglio v. United
States, 405 U.S. 150 (1972), the Court held that "[w]hen the 'reliability of a
given witness may well be determinative of guilt or innocence,'" the prosecution
must disclose evidence affecting the credibility of the State's witness for
impeachment purposes. Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). We affirm the dismissal of the complaint but remand for the entry of a
modified order dismissing the complaint without prejudice.
Because this appeal comes to us on a Rule 4:6-2(e) motion to dismiss, we
accept the facts alleged in the complaint as true, granting plaintiff " 'every
reasonable inference of fact.'" Green v. Morgan Props., 215 N.J. 431, 452
(2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989)). Thus, we begin with a summary of the facts pled in plaintiff's
complaint.
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On October 19, 2020, plaintiff filed a complaint against the Sussex County
Prosecutor, the Sussex County Prosecutor's Office (SCPO), and certain members
of the SCPO, alleging defendants had assisted members of the Franklin Borough
Police Department (FBPD) in "their illegal conspiracy to remove . . . [p]laintiff
from his employment with the [FBPD]."1 Although plaintiff, a then seventeen-
year veteran with the FBPD, had been suspended in 2019, the complaint was
unclear regarding whether plaintiff had actually been terminated. Nonetheless,
the complaint alleged that "[o]n or about January 15, 2020," defendant Gregory
Mueller, SCPO's First Assistant Prosecutor, "sent a letter" to "co-conspirator,
Gregory Cugliari," then FBPD's Police Chief, notifying the FBPD that "the
[SCPO] had made a Giglio determination" regarding plaintiff and another officer
based on credibility concerns involving the officers. The complaint further
stated that to aid the alleged conspiracy, "[s]hortly after forwarding the letter to
Cugliari, both Mueller and Cugliari agreed to release the letter to the press"
through "a feigned [Open Public Records Act] request."
According to the complaint, by sharing information regarding the Giglio
determination with the press, defendants violated Attorney General Law
1
Plaintiff also filed a complaint against the FBPD and its members. That
complaint is not a part of this record and is not the subject of this appeal.
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Enforcement Directive No. 2019-6 (the Giglio Directive), which established
procedures for making and disclosing Giglio determinations. 2 Specifically, the
complaint alleged that by disclosing the information to the press, Mueller had
violated the Giglio Directive's limitations on disclosure because, under the
Directive, the only three possible outcomes for potential Giglio material were
"no disclosure," "disclosure . . . to the defense," or "disclosure . . . to the [c]ourt
for . . . judicial review." Moreover, the complaint alleged Mueller's actions also
violated the Giglio Directive's confidentiality provisions.
Further, according to the complaint, Mueller violated the Giglio
Directive's requirement that "[t]he investigated employee . . . be notified so that
he would have 'an opportunity to verify the accuracy of the . . . Giglio material'"
and "'proactively participate in the . . . Giglio gathering phase.'" In that regard,
the complaint alleged, "Mueller attempted to undo the damage" caused by the
unlawful disclosure by "issu[ing] an email to . . . Cugliari in which he
stated . . . [p]laintiff would have the opportunity, if he was reinstated, to
contest the Giglio determination."
2
Additionally, the complaint alleged defendants had violated plaintiff's rights
under the Health Insurance Portability and Accountability Act of 1996 (HIPAA),
42 U.S.C. § 1320d-1 to d-9, but plaintiff abandoned that claim at oral argument
on the motion for reconsideration and has not advanced that claim on appeal.
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Additionally, the complaint alleged that Mueller violated the Giglio
Directive by making the Giglio determination "without having conducted a
proper investigation." To that point, plaintiff asserted Mueller had designated
plaintiff as a Giglio officer despite knowing "that Cugliari had violated the
Attorney General's Directive in connection with random drug testing." In a
"[m]ediation [s]tatement" attached to the complaint, plaintiff alleged Cugliari
improperly targeted him for a "random" drug test knowing that an investigation
would ensue because he had undergone steroid treatment "for many years" for a
medical condition. Moreover, according to the complaint, "Mueller deliberately
ignored" his co-conspirators' conflict of interest, in contravention of "the
Attorney General's Directives in connection with [i]nternal [a]ffairs
investigations[,]" as plaintiff's removal from the FBPD and elimination from
consideration for the position of FBPD Chief of Police "facilitate[d] and actually
did accomplish the promotion of Cugliari to Chief."
Defendants subsequently filed a Rule 4:6-2(e) motion to dismiss the
complaint for "failure to state a claim upon which relief can be granted." In an
order entered on March 5, 2021, the trial judge granted the motion and dismissed
the complaint "with prejudice." In an accompanying written statement of
reasons, after delineating the governing principles, the judge underscored the
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following provision in the Giglio Directive, entitled "Non-enforceability by
third parties":
This Directive is issued pursuant to the Attorney
General's authority to ensure the uniform and efficient
enforcement of the laws and administration of criminal
justice throughout the State. . . . Nothing in this
Directive shall be construed in any way to create any
substantive right that may be enforced by any third
party.
Relying on the provision, the judge concluded the Giglio Directive did not
"create a private right of action" for third parties, and he saw no legal basis for
inferring such a right. Thus, the judge determined, "[a]s such, accepting all facts
in the complaint as true, and providing [p]laintiff with all reasonable inferences
drawn therefrom, [p]laintiff fail[ed] to establish the existence of a legal basis or
cause of action for [d]efendants' alleged violations of the [Giglio] Directive."
Further, the judge acknowledged that "ordinarily the [c]ourt would dismiss
[p]laintiff's complaint without prejudice and allow [p]laintiff an opportunity to
refile." However, "in this instance," the judge "dismisse[d p]laintiff's complaint
with prejudice, because under existing law no modification or supplementation
of the factual allegations would create a private cause of action for [p]laintiff
against . . . [d]efendants for alleged violations of the Directive."
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Plaintiff subsequently moved for reconsideration, which the judge denied
in an order entered on April 16, 2021. In an accompanying written statement of
reasons, the judge observed that plaintiff failed to meet the standard for
reconsideration under Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996), in that plaintiff "fail[ed] to cite any facts that th[e c]ourt failed to
consider" and failed to cite any authority to "suggest[] that th[e c]ourt's March
5, 2021 [o]rder was palpably incorrect." Instead, the judge determined that the
cases plaintiff had cited in support of a private cause of action under the Giglio
Directive were "easily distinguishable," not "controlling authority," and did "not
mandate a different result."
In this ensuing appeal, plaintiff argues the judge erred in dismissing his
complaint because he "d[id] not sue to enforce the [Giglio] Directive." Rather,
"[h]e sue[d] because the Directive was used by the Prosecutor to assist the
conspiracy in the [FBPD]" and "interfere with [his] employment." Plaintiff
asserts that while he "may not be permitted to enforce the Directive, he clearly
can sue for misconduct, the facts of which flow from violations of the Directive."
Rule 4:6-2(e) provides that a complaint may be dismissed for "failure to
state a claim upon which relief can be granted." In interpreting the Rule in
Printing Mart, our Supreme Court explained that "the test for determining the
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adequacy of a pleading . . . [is] whether a cause of action is 'suggested' by the
facts." 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J.
189, 192 (1988)). The Court directed judges to "'search[] the complaint in depth
and with liberality to ascertain whether the fundament of a cause of action may
be gleaned even from an obscure statement of claim" and grant "opportunity . . .
to amend if necessary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l
Park, 43 N.J. Super. 244, 252 (App. Div. 1957)); see also Pressler & Verniero,
Current N.J. Court Rules, cmt. 4.1.1 on R. 4:6-2(e) (2022) ("[A] complaint
should not be dismissed under this rule where a cause of action is suggested by
the facts and a theory of actionability may be articulated by amendment of the
complaint.").
The Court also emphasized that motions to dismiss under Rule 4:6-2(e)
"should be granted in only the rarest of instances" and generally without
prejudice. Printing Mart, 116 N.J. at 772; see also Smith v. SBC Commc'ns Inc.,
178 N.J. 265, 282 (2004). Nonetheless, dismissal with prejudice is appropriate
if the claim is barred by a statute of limitations or similar impediment. Printing
Mart, 116 N.J. at 772. We review de novo the trial court's grant of a motion to
dismiss under Rule 4:6-2(e) and "owe[] no deference to the trial court's legal
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conclusions." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman &
Stahl, P.C., 237 N.J. 91, 108 (2019).
Reconsideration is only available when "'either (1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or (2)
it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence.'" Fusco v. Bd. of Educ. of
Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)). We review a trial court's decision
on a motion for reconsideration under an abuse of discretion standard.
Cummings, 295 N.J. Super. at 389. "Thus, a trial court's reconsideration
decision will be left undisturbed unless it represents a clear abuse of discretion."
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382
(App. Div. 2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283
(1994)). A court abuses its discretion "'when a decision is "made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis."'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002)).
Here, we agree with the motion judge that the Giglio Directive did not
create a private cause of action for alleged violations. However, "indulgently
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read," Green, 215 N.J. at 460, we cannot ignore the fact that despite its numerous
references to Directive violations, ultimately, the complaint alleged defendants
had participated in a civil conspiracy, a cognizable claim in New Jersey.
[A] civil conspiracy is "a combination of two or more
persons acting in concert to commit an unlawful act, or
to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties
to inflict a wrong against or injury upon another, and an
overt act that results in damage."
[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177
(2005) (quoting Morgan v. Union Cnty. Bd. of Chosen
Freeholders, 268 N.J. Super. 337, 364 (App. Div.
1993)).]
To prevail on a civil conspiracy claim, a plaintiff must "establish that defendants
committed an unlawful act or a wrong against him that constitutes a tort entitling
him to a recovery." G.D. v. Kenny, 205 N.J. 275, 312 (2011).
In the complaint as pled, we cannot glean what tort plaintiff alleges
defendants committed against him. The complaint is vague regarding whether
plaintiff was terminated from the FBPD and does not suggest other cognizable
harms.3 Therefore, dismissal was appropriate. However, as the Court instructed
3
Although not clearly articulated in the complaint, plaintiff seems to allege
defendants aided his wrongful discharge from the FBPD. See Ballinger v. Del.
River Port Auth., 172 N.J. 586, 604-05 (2002) ("An employee who is wrongfully
discharged may maintain a cause of action in contract or tort or both." (quoting
Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980))).
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in Printing Mart, a Rule 4:6-2(e) dismissal should generally be without
prejudice, unless there is a clear legal impediment to the claim. 116 N.J. at 772.
On this record, we do not discern a clear legal impediment to the claim. Rather,
it appears the complaint was inartfully pleaded. Therefore, we affirm the
dismissal of the complaint but remand for the judge to enter a modified order
dismissing the complaint without prejudice.
Affirmed in part, reversed in part, and remanded for the entry of a
modified order dismissing the complaint without prejudice. We do not retain
jurisdiction.
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