Opinion
DOCKET NO. A-1748-12T4
11-05-2015
BRILANT SHERIFI and LULJETE SHERIFI, Plaintiffs, v. CITY OF ATLANTIC CITY, MICHAEL J. MAYER, and OWEN INGENITO, Defendants-Respondents, and SHORE SUPERMARKETS, INC. d/b/a ATLANTIC CITY IGA and JAMES RUSSO, Defendants. IN THE MATTER OF JERRY C. GOLDHAGEN, ESQ., Appellant.
Jerry C. Goldhagen, appellant pro se. George N. Polis argued the cause for respondent City of Atlantic City. Tracy L. Riley argued the cause for respondents Michael J. Mayer and Owen Ingenito (Law Offices of Riley and Riley, attorneys; Ms. Riley and Rachel M. Conte, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa, and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2520-07. Jerry C. Goldhagen, appellant pro se. George N. Polis argued the cause for respondent City of Atlantic City. Tracy L. Riley argued the cause for respondents Michael J. Mayer and Owen Ingenito (Law Offices of Riley and Riley, attorneys; Ms. Riley and Rachel M. Conte, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Jerry C. Goldhagen, Esq., appeals from the Law Division's order imposing counsel fees against him as attorney for his former clients, plaintiffs Brilant Sherifi and his wife Luljete Sherifi. The fees, totaling approximately fifty-thousand dollars, were awarded pursuant to Rule 1:4-8 as a sanction for pursuing frivolous litigation.
The court entered the order after a jury returned a verdict in plaintiff's favor against defendant Shore Supermarket, Inc. d/b/a Atlantic City IGA, awarding plaintiff two—hundred thousand dollars in damages. The jury found no liability, however, on the part of the store's manager, defendant James Russo, or defendants Michael J. Mayer and Owen Ingenito, officers in the Atlantic City Police Department (the officers), and the court had previously dismissed plaintiff's claims against defendant City of Atlantic City (City) at the close of plaintiff's case, pursuant to Rule 4:37-2(b). The court determined the claims filed against the City and its officers (collectively, the City defendants) were frivolous and sanctioned plaintiff and Goldhagen accordingly.
We use plaintiff, in the singular, to refer to Brilant Sherifi, as the trial court dismissed his wife's claim and that decision is not the subject of this appeal.
Plaintiffs appealed from that order, but the appeal was dismissed.
On appeal, Goldhagen alleges several errors by the trial court pertaining to both the process by which the court imposed sanctions and the court's underlying findings. With respect to the former, Goldhagen first argues the Law Division judge should have recused himself from deciding the City defendants' Rule 1:4-8 motion because he was previously employed by the City and demonstrated a "subjective bias" against Goldhagen and in favor of the City's attorneys. He also contends that the court failed to "strictly construe[]" Rule 1:4-8 and did not support its order with "specific findings of fact, conclusions of law or explanations," relying instead upon "mistakes of law and erroneous findings of fact," and that "the unjustified delay in moving to dismiss any claims bar[red] an award of fees during that time." He further argues that, regardless of the merits of the award of attorneys' fees, it cannot be sustained because it was entered "long after" the original judgment.
With respect to the findings underlying the court's imposition of sanctions, Goldhagen first contends the counsel fee award was not supported by the evidence. Specifically, he argues the court erred in finding the claims against the City defendants were frivolous and that the City and its officers satisfied the requirements for seeking Rule 1:4-8 attorneys' fees. Goldhagen maintains the action was not frivolous, relying upon the court's denial of the officers' Rule 4:37-2 motion and its denial of the City's earlier motion to dismiss plaintiff's claims. He also contends the court erred in dismissing the claims against the City at trial and argues that the dismissal does not mean those claims were frivolous. Further, Goldhagen alleges the court erred in concluding the doctrine of res ipsa loquitor did not apply to the alleged facts. Moreover, according to Goldhagen, the City defendants' attorneys are, in fact, liable to him for fees pursuant to Rule 1:4-8 and the frivolous litigation statute, N.J.S.A. 2A:15-59, and the court erred in concluding otherwise. Finally, Goldhagen contends his appeal of the court's award of fees cannot be limited to his one-half share of the amount awarded.
We have considered each of the arguments in light of our review of the record and the applicable legal principles. We find all of Goldhagen's arguments to be without merit and affirm.
I.
Plaintiff's claim arose from events that occurred outside of a supermarket in August 2005, after he attempted to return an item he had purchased. The evidence established, and the jury found, that agents of the supermarket physically removed plaintiff from the store and assaulted him.
According to plaintiff's testimony at trial, after being escorted out of the supermarket by store security, he noticed two police officers walking towards him from the parking lot and saw one of them "pointing with something, with like a gun." He then felt "two instant punches or attacks[ — o]ne was the weapon that was used, the other one was a fist" — and experienced an "electrical shocking sensation from head to toe with incredible burning" from a "blow . . . near his eye." Plaintiff testified that he lost consciousness and fell to the ground, and that, when he regained consciousness, he was lying face-up and felt like "smoke was coming out of his body," and heard the officers and store security guards blaming each other for his injuries.
According to the officers, however, plaintiff was already injured when they arrived on scene. Mayer arrived first and, noticing that plaintiff's face was red and that he kept rubbing it, asked if he had been punched. Plaintiff denied being hit and explained to Mayer that he had fallen, though he said he was not pushed. Ingenito arrived approximately three minutes later, and described plaintiff as being visibly upset, flailing his arms and still rubbing his face. Both officers described plaintiff's behavior at the scene as uncontrollable and "crazy," and testified that plaintiff was talking about spaceships and aliens sent to abduct him, saying the government had implanted electrodes and tracking devices in him, and shouting "America is not going to get away with this." Though plaintiff initially declined medical attention, when he continued to rub his face and told the officers it was becoming numb, they offered again and he accepted.
Plaintiff did not tell Ingenito how he had been injured, and Ingenito did not file a report.
An ambulance transported plaintiff to the hospital, where it was determined he sustained multiple fractures of the bones surrounding his eye, known as a "tripod fracture." Though plaintiff told hospital staff, and later his examining physicians, that his injuries were the result of being struck by electricity, the experts determined the fractures were in fact caused by a blunt object, possibly a fist. As a result of the tripod fracture, plaintiff suffered continuing pain, headaches, dizziness, blurred vision, numbness, and hearing problems. The incident also exacerbated his various pre-existing personality disorders, impairing his ability to function and making him agitated and irritable. One psychiatrist opined that, as a result of the incident, plaintiff became somewhat catatonic and began suffering hallucinations and delusions.
A neurologist who testified stated plaintiff's injury must have been caused by a "reasonably large object," and an otolaryngologist (ENT) testified a fist was the most probable cause. The latter opined it was unlikely that a fall or projectile caused the injury. Both doctors testified that people who have suffered tripod fractures have described the sensation as similar to an electric shock.
On August 26, 2005, plaintiff filed a complaint against the officers with the City police department's internal affairs department. Sergeant Michael Russack investigated the complaint and took statements from plaintiff, Mayer, Ingenito, and Russo. Plaintiff alleged that one of the officers "aimed a stun gun or some other type of weapon at him and fired some type of projectile, which hit him in the face and knocked him to the ground." In their respective statements to internal affairs, however, Mayer and Ingenito each denied having a Taser at the time, or ever threatening or shooting plaintiff with one, and Russo said he did not see the officers assault plaintiff. In his investigation report, Russack determined plaintiff's assertions his injuries resulted from police firing a weapon were unfounded, and concluded the officers did not harm plaintiff, finding plaintiff had either been punched in the face or pushed or fell into something.
Plaintiff then filed this action, alleging negligence and intentional torts against both the supermarket defendants and the City defendants. Specifically, the complaint alleged the City was negligent in its training and supervision of the officers, and that it had a "de facto policy" of coercing and intimidating suspects by means of excessive force and unlawful arrest and detention. The officers were accused of, among other things, assault and battery. Plaintiff later amended the complaint to add a count alleging the doctrine of res ipsa loquitur applied to his claim.
On September 25, 2009, shortly after the City defendants answered plaintiff's amended complaint, the officers' attorney sent Goldhagen a letter accusing the complaint of being frivolous and demanding Goldhagen withdraw it, pursuant to Rule 1:4-8. Almost a year later, the City's attorneys sent a similar letter. Goldhagen refused both demands because discovery was ongoing, the supermarket defendants remained in the litigation, and there remained factual issues relevant to plaintiff's claims against the City.
The action was tried over the course of eleven days in June 2011. Prior to jury selection, the City moved to bar plaintiff from eliciting testimony regarding any municipal policy, practice, or custom that may have contributed to plaintiff's injuries, arguing he had failed to produce evidence of any such policy. The court denied the City's motion.
At the close of plaintiff's case, the court granted the City's motion for a directed verdict pursuant to Rule 4:37-2, based on the lack of evidence to support a finding of liability on the part of the City. However, the judge denied the officers' similar application, opting instead to "reserve whatever action [he] want[ed] to take in the future [until] after [he] hear[d] what the jury [would] do[]." Pursuant to Rule 2:5-1(b), the judge amplified this decision in a letter to this court. He explained that "the jury's verdict on [p]laintiff's claim against the two police officers . . . was never in doubt," and that "the only reason [he] did not grant [the] officers' motion[] . . . was the [p]laintiff's mental condition," noting that plaintiff "is a deeply disturbed person" and, moreover, that "[p]laintiff ha[d] been a resident of this country for a relatively short period of time" and was not a native English-speaker. He further clarified, saying:
In ruling on a later motion, the judge provided further explanation for this decision. He explained that he granted the City's motion for a directed verdict because it was clearly "never a player," but denied the officers' motion and "permitted plaintiff's claims [against them] to go to the jury because [he] was very confident [t]hat a sensible jury" would find in the officers' favor. Had it not, the court said it "would have entertained a motion for a judgment notwithstanding the verdict."
[He] believes that "justice must satisfy the appearance of justice" and resolved that . . . it was important for the jury to render a verdict dismissing [plaintiff's] claims against the police officers, rather than a judge issuing an [o]rder . . . [because he] knew [the jury's] verdict would have more credibility with [plaintiff] than an [o]rder dismissing his claim.
The jury returned a verdict in plaintiff's favor, finding that he was the victim of an assault and battery for which Shore Supermarket was entirely at fault, and awarding two-hundred thousand dollars in damages.
Plaintiff also moved for a new trial on the issue of damages, which the court denied. That denial is not before this court on appeal.
After the City defendants filed a motion for frivolous litigation sanctions, plaintiff responded with a motion requesting the trial judge recuse himself from considering the City defendants' motion. On November 4, 2011, the judge denied plaintiff's recusal motion and granted the City defendants' motion for sanctions, awarding fees of $22,264.25 and $27,680 to the City and the officers, respectively.
In denying plaintiff's recusal motion, the judge determined that neither his role as a "public person" nor his experience as an Atlantic City "historian" gave rise to any conflict of interest, and that he had not demonstrated any favoritism or bias throughout the trial, though he appreciated that, at times, his "patience wore thin" with all of the attorneys.
The judge next addressed the City defendants' Rule 1:4-8 motion and determined that sanctions were warranted because, had Goldhagen conducted even a "cursory investigation of the facts and a careful review of the law in advance of filing the complaint, he would have recognized that" plaintiff had no valid claim against the City or its officers. He found no support for plaintiff's "alternate theor[ies] of injury via Taser gun . . . [or] a beating by the police," and attributed much of the decision to continue pursuing the claims to plaintiff's mental illness. The judge also suggested that Goldhagen should have reconsidered and withdrawn the claims against the City defendants when he was first served with the Rule 1:4-8 letters demanding withdrawal of the complaint. Finally, the judge determined the City defendants properly served plaintiff with their notices and demands for withdrawal, and noted that plaintiff's counsel had a duty to inform his client that proceeding with frivolous claims could lead to sanctions under Rule 1:4-8, namely the award of attorneys' fees. The court entered an order memorializing its decision the same day.
On February 3, 2012, the court ordered that Goldhagen post bond for the full amount of the counsel fee award and that, if he failed to do so within twenty-one days, the full amount would become due immediately. On June 25, 2012, the court ordered that the fee award be divided equally between plaintiff and Goldhagen — who no longer represented plaintiff — and that a lien be placed on plaintiff's recovery in the amount of $24,972.12, representing half of the total award of $49,944.25. It further ordered that judgment be entered against Goldhagen for his half of the total obligation and that he post bond accordingly.
Following entry of this order, plaintiff and Goldhagen made several applications to the trial court, this court, and the Supreme Court, the outcomes of which are not relevant to this appeal.
The order also amended the court's February 3, 2012 order, which had miscalculated the total award.
In an exhibit to his case information statement filed with this court, Goldhagen advises that as part of a post-judgment agreement with plaintiffs, he is now solely responsible for payment of all of the fees owed to the City defendants.
In October 2012, Goldhagen filed a motion to stay collection of the fee award and to vacate the judgment entered against him. The officers filed a cross-motion claiming Goldhagen's motion was frivolous and seeking additional fees under Rule 1:4-8. On November 5, 2012, the judge entered a further order regarding counsel fees, in which the award against Goldhagen of $25,156.34 was deemed final and enforcement was stayed pending final disposition of any appeal. Goldhagen demanded the officers withdraw their motion seeking additional counsel fees, arguing the court's order rendered it frivolous, and, when they refused, filed his own Rule 1:4-8 motion seeking fees. On December 21, 2012, the court denied Goldhagen's motion.
This amount appears to represent Goldhagen's original obligation for half of the total award plus one day's interest.
Goldhagen filed his appeal from the Law Division's November 4, 2011, February 3, 2012, June 25, 2012, November 5, 2012, and December 21, 2012 orders.
II.
We turn our attention first to Goldhagen's procedural arguments regarding the Law Division's various orders and find them to be without any merit. We conclude that the court's November 4, 2011 oral decision, finding plaintiff's claims against the City defendants to be without support, and the related order imposing sanctions for frivolous litigation, complied with both Rule 1:4-8(d) (requiring that "[i]n the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed"), and Rule 1:7-4(a) (requiring a court, "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . , on every motion decided by a written order that is appealable as of right").
We similarly find meritless Goldhagen's argument that the counsel fee award is void because it was not included in the final judgment, as required by Rule 4:42-9(d) ("An allowance of fees made on the determination of a matter shall be included in the judgment or order stating the determination."), because Rule 1:4-8 imposes different requirements. Rule 1:4-8 requires "[a]n application for sanctions under this rule shall be by motion made separately from other applications," and "shall be filed with the court no later than 20 days following the entry of final judgment." R. 1:4-8(a)(1), (b)(2) (emphasis added). In this case, defendants filed their motion in July 2011, the same month the judgment was entered. Thus, the motion was timely and properly considered.
Goldhagen also contends the trial judge erred in denying plaintiff's motion for recusal based on the judge's former employment as the City's planning board attorney, which he failed to disclose, and bias against Goldhagen. He argues the conflict and hostility expressed by the judge require us to vacate the counsel fee award entered against him. We disagree.
We conclude that vacating the judge's order is unwarranted, as the judge's former employment did not give rise to any conflict, real or apparent, and he did not show the requisite hostility or bias against Goldhagen. Suffice it to say, we find no abuse of discretion in the judge's decision to deny recusal. See Panitch v. Panitch, 339 N.J. Super. 63, 67, 71 (App. Div. 2001) (stating recusal rests in the sound discretion of the trial court, and will be reversed only upon an abuse of that discretion); see also Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995) (citing Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)) ("The trial judge is in as good a position as any to evaluate a claim that an action has the appearance of impropriety."), certif. denied, 143 N.J. 326 (1996). We do not discern any facts cited by Goldhagen that would lead "a reasonable, fully informed person [to] have doubts about the judge's impartiality." DeNike v. Cupo, 196 N.J. 502, 517 (2008). Further, even if the judge lost his patience with one or more of the attorneys and spoke inappropriately, his "inappropriate comments do not, by themselves, necessarily equate to bias." Panitch, supra, 339 N.J. Super. at 68.
We next turn our attention to Goldhagen's substantive argument that pursuit of the claims against the City defendants was not frivolous. Goldhagen specifically argues that the court erred in sanctioning him with counsel fees because he had a reasonable good faith belief as to the merits of the claims against the City defendants. We disagree.
We review a trial court's imposition of frivolous litigation fees for an abuse of discretion. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Reversal is warranted when "the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid.
An award of fees against a party engaging in frivolous litigation is governed by N.J.S.A. 2A:15-59.1, which requires a judge to determine whether a pleading filed by a non-prevailing party was frivolous. N.J.S.A. 2A:15-59.1(a)(1). In order to award fees under the statute, the court must consider "the pleadings, discovery, or the evidence presented" and find that a claim or defense was either pursued "in bad faith, solely for the purpose of harassment, delay or malicious injury" or made with knowledge that it "was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b)(1), (2).
Rule 1:4-8 supplements the statute, with each assigning different responsibility for frivolous litigation. McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011); Ferolito v. Park Hill Ass'n., 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009). While the frivolous litigation statute applies only to parties, Rule 1:4-8 is directed to the conduct of attorneys. ASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 414 N.J. Super. 351, 363 (App. Div.), certif. denied, 205 N.J. 96 (2010).
Rule 1:4-8 provides that, by signing a pleading, the attorney attests to its accuracy and legitimacy — specifically,
that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the factual allegations have evidentiary support or, as to specifically identified
allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.
[R. 1:4-8(a).]
"The nature of conduct warranting sanction under Rule 1:4-8 has been strictly construed, and 'the term "frivolous" should be given a restrictive interpretation' to avoid limiting access to the court system." First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432-33 (App. Div. 2007)(citation omitted) (quoting McKeown Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561-62 (1993)). Therefore, imposing sanctions in the form of attorneys' fees "is not warranted where the [attorney] has a reasonable good faith belief in the merits of [the] action." J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. 1999). The Rule does, however, impose a continuing duty on the attorney who filed an action to amend or withdraw allegations if, upon further investigation and discovery, they have no evidentiary support. LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009).
Frivolousness is interpreted similarly under Rule 1:4-8 and the frivolous litigation statute. See DeBrango v. Summit Bancorp., 328 N.J. Super. 219, 226-27 (App. Div. 2000). Neither is intended to vitiate the general rule that each litigant should bear his or her own litigation costs, even when the litigation is of marginal merit. Venner v. Allstate, 306 N.J. Super. 106, 113 (App. Div. 1997). --------
Applying these standards, we find that there was no legal or factual support for Goldhagen to have continued to pursue the claims against the City defendants once he received a demand for their withdrawal. As alluded to earlier, and found by the trial court, there were absolutely no facts to support plaintiff's claim that the officers caused his injuries. In fact, pre-trial discovery indicated the officers did nothing more than provide assistance and help plaintiff obtain medical care. Further, deposition testimony and the internal affairs report both established that members of the City police department did not carry Tasers or stun guns in August 2005, as plaintiff claimed, and were in fact prohibited from doing so. Moreover, the testimony of medical experts supported the conclusion that plaintiff's injuries were not caused by the officers' use of such weapons, but rather were the result of being forcibly punched in the eye, an event that, according to plaintiff's version of being beaten by the supermarket's security guards, occurred before the police even arrived at the scene. Goldhagen even conceded in his summation the evidence overwhelmingly supported the conclusion that the supermarket security guards, and not the officers, were responsible for plaintiff's injuries.
Similarly, to the extent plaintiff sought to hold the City liable for the officers' alleged acts, there was no legal support for that claim. See, e.g., Stomel v. City of Camden, 192 N.J. 137, 145 (2007) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-94, 98 S. Ct. 2018, 2035-38, 56 L. Ed. 2d 611, 635-38 (1978) holding that "municipalit[ies] generally cannot be held liable in a [42 U.S.C.A.] § 1983 action for the acts of [their] employees under the principle doctrine of respondeat superior"). Although a municipality generally is not liable for the conduct of its employees in an action brought under 42 U.S.C.A. § 1983, an exception is made when an official policy, practice, or custom is the cause of the constitutional deprivation. Ibid.
Where the claim is based on a municipality's "failure to train" its police officers, liability can be established "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Bayer v. Twp. of Union, 414 N.J. Super. 238, 270-71 (App. Div. 2010) (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412, 426 (1989)). To establish a claim based on this theory, a plaintiff must show that the training was inadequate, that the inadequate training represented a municipal policy, that the inadequacy was likely to result in the violation of constitutional rights, and that the municipal policymakers were deliberately indifferent to the need for different training. City of Canton, supra, 489 U.S. at 390, 109 S. Ct. at 1205, 103 L. Ed. 2d at 427-28.
Here, Goldhagen could not prove any improper custom or policy or establish any inadequate training. While Goldhagen argued the City had a policy whereby its officers were instructed to, in effect, let stores handle unruly customers until police intervention was absolutely necessary, the City defendants denied the policy's existence and Goldhagen could not produce any evidence to the contrary. He should have known the claims were unsupported by both law and fact, and were therefore frivolous. Belfer v. Merling, 322 N.J. Super. 124, 144 (App. Div.), certif. denied, 162 N.J. 196 (1999); see also Gooch v. Choice Entertaining Corp., 355 N.J. Super. 14, 19-20 (App. Div. 2002) (holding that where there was no legal basis for the defamation claim filed, because the statements were privileged and immune from liability, which the attorney should have known, attorneys' fees were warranted under Rule 1:4-8).
We find no abuse of discretion in the court's awarding fees against Goldhagen for maintaining the baseless claims against the City defendants. The factual allegations against the City defendants had no evidentiary support when the demand letters were first sent, and still had no evidentiary support at trial, and the legal claims against the City were not "warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." R. 1:4-8(a)(2). Goldhagen was therefore obligated to withdraw the unsupported claims when the City defendants demanded he do so, and by breaching this obligation, he exposed himself to Rule 1:4-8 sanctions.
III.
We are equally satisfied that the City defendants complied with the notice and demand requirements of Rule 1:4-8. We disagree with Goldhagen's contention that the City defendants' pretrial notice and demand letters for withdrawal of the claims against them lacked the specificity required by the Rule.
A party seeking sanctions under Rule 1:4-8 must serve a written notice and demand to the attorney against whom sanctions are sought. R. 1:4-8(b)(1). The notice and demand must:
(i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28 days of service of the written demand.
[Ibid.]
The Rule's "safe harbor" provision is designed to give those engaged in frivolous litigation prompt warning of the risk of sanctions and the opportunity to take remedial action. Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 72 (2007). While a court has the opportunity to determine the practicality of requiring strict adherence to the Rule's requirements, the public policy concern of deterring frivolous litigation "militate[s] in favor of requiring that . . . the Rule's procedural requirements [be met] to the fullest extent possible." Ibid.
In the notice and demand letter of August 26, 2010, the City's attorney stated:
At this point, it should be obvious to you that your client suffered from psychiatric disorders prior to the August 22, 2005 incident. On that date he told hospital staff and the ambulance driver that the government planted a tracking device in his stomach. He talked about aliens and spaceships and police shooting him with beams from far away. Alternatively, he claimed that his injuries resulted from an assault by security guards and that he was lying on the ground when the police arrived. Your client's claims have no basis in law or in fact and no legal theory can support your client's complaint as to the City of Atlantic City — (there is no policy or custom of the City that is being implicated in your client's claims). Your client's claims and legal contentions are not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
In the notice and demand letter of September 25, 2009, the officers' attorney stated:
On September 22, 2009, you took the depositions of Officer Mayer and Officer Ingenito. [They] informed you that they never touched [plaintiff] . . . . More importantly, you were advised that the Atlantic City police department, like all New Jersey law enforcement, are not equipped with any type of "ta[s]er weapon." Such weapons are prohibited in New Jersey by all persons, including law enforcement. Thus, there is nothing in the record that Officer Mayer or Officer Ingenito had any type of "remote beam" which caused [plaintiff's] injuries.
In light of the foregoing, the allegations against Officer Mayer and Officer Ingenito are clearly frivolous.
We agree with the trial judge that the letters "sufficed." See Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001) (citing R. 1:4-8(b)(1)) (stating the notice and demand must be sufficiently specific and detailed to provide an opportunity for the opposing party to withdraw the offending pleadings), certif. denied, 171 N.J. 338 (2002). The City's notice informed Goldhagen that the claim against it was the product of plaintiff's psychological disorders and lacked any factual or legal basis. The officers' notice similarly informed Goldhagen that there was no evidence the officers had a Taser-type weapon, that New Jersey law enforcement did not carry these weapons, and that neither officer struck plaintiff with any such weapon.
We conclude the notices met the requirements of Rule 1:4-8, thereby entitling the City defendants to an award of fees when Goldhagen continued to pursue the baseless claims — claims that were dismissed by the court and rejected by the jury for the same reasons offered in the notices. Cf. Ferolito, supra, 408 N.J. Super. at 410 (holding that the "defendants' failure to serve notice and demand relevant to the issue on which they prevailed . . . precluded an award of fees and costs").
IV.
As to Goldhagen's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that we disagree with Goldhagen's contention that a court's decision to deny a motion to dismiss made pursuant to Rule 4:37-2 prevents a prevailing party from seeking Rule 1:4-8 counsel fees, and with his argument that this action involved the application of res ipsa loquitur.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION