1. law, govt and politics

NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
JOSEPH OETTINGER, III,
LAW DIVISION
Plaintiff,
BERGEN COUNTY
v.
DOCKET No. BER-L-8072-13
NANCI ARRAIAL, individually and in
her official capacity; CRAIG F.
MEYER, individually and in his
official capacity; RICHARD J. GUSS,
individually and in his official capacity;
DARYL A. WILLIAMS, individually
and in his official capacity; HECTOR I.
RODRIGUEZ, individually and in his
official capacity; E. RONALD
WRIGHT, J.M.C., individually and in
his official capacity; THE TOWNSHIP
OF BEDMINSTER; THE TOWNSHIP
OF FRANKLIN (Somerset Co.); THE
COUNTY OF SOMERSET, THE
STATE OF NEW JERSEY, AMY H.
WOLLOCK, individually,
CIVIL ACTION
OPINION
Defendants.
Argued: October 31, 2014
Decided: November 4, 2014
Honorable Peter E. Doyne, A.J.S.C.
Joseph Oettinger, Jr., Esq., appearing on behalf of the plaintiff, Joseph Oettinger,
III.
John A. Stone, Esq., appearing on behalf of the defendants, Hector I. Rodriguez, E.
Ronald Wright, J.M.C. and The Township of Franklin (DeCotiis, Fitzpatrick & Cole, LLP).
Introduction
Before the court is a motion to transfer venue that presents several intriguing issues
concerning venue law. The issues arise from the determination of whether a matter should
be venued in the vicinage where the defendant municipalities are located and the employees
thereof are employed. This motion was brought on behalf of three of the defendants, Hector
I. Rodriguez (“Prosecutor Rodriguez”), E. Ronald Wright, J.M.C. (“Judge Wright”) and
the Township of Franklin (“Franklin” when referenced individually and “Franklin
Defendants” when referenced collectively with Prosecutor Rodriguez and Judge Wright).
The matter is opposed by the plaintiff, Joseph Oettinger, III (“Joseph” or the “Plaintiff”).
Oral argument was requested and entertained on October 31, 2014.
Facts and Procedural Posture
The following uncontroverted facts have been presented primarily by way of a
certification of Plaintiff’s attorney, Joseph Oettinger, Jr., Esq. (“Oettinger Jr.”). On or
about November 4, 2009, Bedminster Detective Nanci Arraial (“Detective Arraial”), with
the assistance of Somerset County assistant prosecutor, Daryl A. Williams (“Prosecutor
Williams”), applied for a search warrant/communications data warrant No. YC by EMC—
SO-17-CDW-09 (“Warrant”). The Warrant was issued that same day by Judge Edward M.
Coleman, J.S.C. (“Judge Coleman”). In pertinent part, the Warrant provided for execution
“until completion of the forensic analysis by a qualified computer forensic analyst in a
recognized laboratory in the State of New Jersey.”1
1
Warrants of this type may be issued to seize computers and other devices when there is probable cause there
is evidence of a crime that will be found on a computer. Department of Law and Public Safety, Office of the
Attorney General, Computer Evidence Search & Seizure Manual 7–9 (2000), available at
http://www.state.nj.us/lps/dcj/pdfs/cmpmanfi.pdf. Forensic examiners may then be able to retrieve evidence
of the crime. Id. at 79.
2
The Warrant was executed on November 9, 2009 at Plaintiff’s dwelling located in
Westwood, New Jersey, by Bedminster Police Detective Craig F. Meyer (“Detective
Meyer”), Detective Arraial and members of the Somerset County Prosecutor’s Office. In
all, eighteen items were seized, which were itemized in a receipt issued by Detective Meyer
and signed by Detective Arraial. No evidence of the crimes set forth in the Warrant were
found in the seized property and the seized property was not contraband in and of itself.
By way of facsimile dated December 29, 2011, Judge Wright delivered an executed
order directing the seized property and any copies of data and photographic images
(“Derivatives”) taken from the property be returned to Plaintiff within ten days. Plaintiff’s
attorney promptly mailed a copy of said order to Detective Arraial and Bedminster
municipal prosecutor, Richard J. Guss, Esq. (“Prosecutor Guss”). Pursuant to Judge
Wright’s order, Detective Meyer returned the seized property to Plaintiff, however, he did
not return the Derivatives.
On January 26, 2012, Judge Wright supplemented the December 29, 2011 order by
directing Detective Arraial to provide Plaintiff’s attorney with certifications stating no
Derivatives or copies thereof were retained. Plaintiff’s counsel certifies Detective Arraial’s
obligation with regard thereto remains unfulfilled.
On February 28, 2013, Judge Wright executed an order memorializing the January
26, 2012 supplement to the December 29, 2011 order. The new order required compliance
within fifteen days at Plaintiff’s counsel’s office. The order was served upon Plaintiff’s
counsel, Franklin Prosecutor Rodriguez and Detective Arraial. Plaintiff’s counsel certifies
this order remains unfulfilled. On May 23, 2013, Plaintiff’s counsel alleges Judge Wright
failed or refused to enforce the order dated February 28, 2013.
3
On or about October 18, 2013, Plaintiff had a complaint filed on his behalf in
Bergen County against 7 defendants: Detective Arraial, individually and in her official
capacity; Detective Meyer, individually and in his official capacity; prosecutor Guss,
individually and in his official capacity; Prosecutor Williams, individually and in his
official capacity; Prosecutor Rodriguez, individually and in his official capacity; Judge
Wright, individually and in his official capacity; The Township of Bedminster; The
Township of Franklin (Somerset Co.); The County of Somerset; The State of New Jersey;
and Amy H. Wollock (“Wollock”), individually (the “Defendants” when referenced
collectively). Since that time, several motions have been filed and decided.2
On May 29, 2014, default was entered against the Franklin Defendants. Counsel
for the Franklin Defendants asserts his clients failed to respond to Plaintiff’s complaint due
to a coverage determination. Counsel further asserts upon learning of the coverage
determination, a consent order was filed, vacating the Franklin Defendants’ default and
permitting them until August 15, 2014, to file an answer. Pursuant to that order, an answer
was filed on behalf of the Franklin Defendants on July 25, 2014.
The instant motion was filed on behalf of the Franklin Defendants on October 8,
2014, and seeks transfer of venue to Somerset County. The Franklin Defendants included
a letter brief in support of the motion and the certification of their attorney, John A. Stone,
Esq. (“Stone”). Plaintiff’s counsel filed opposition on October 10, 2014. Included in
Plaintiff’s opposition was a letter brief and the certification of Oettinger Jr., counsel for
Plaintiff. Stone filed a reply on behalf of the Franklin Defendants on October 20, 2014.
Law
2
At oral argument, counsel for the Franklin Defendants advised the prior motions were all to dismiss elements
of the complaint prosecuted by various Defendants.
4
R. 4:3-3(a) provides a change of venue in a civil action may be granted in the
following circumstances:
(1) if the venue is not laid in accordance with R. 4:3-2; or (2)
if there is a substantial doubt that a fair and impartial trial
can be had in the county where venue is laid; or (3) for the
convenience of parties and witnesses in the interest of
justice[.]
[R. 4:3-3(a).]
Where venue was laid improperly, a motion for change “should be routinely
granted.” Pressler, Current N.J. Court Rules, comment on R. 4:3-3 (2014). In such an
instance, the burden is on the party opposing the motion to show “good cause for not
making a change” either because “a fair and impartial trial could not be had in the proper
county or [because] ‘the convenience of parties and witnesses in the interest of justice’
justifies trial in a county other than [the proper county].” Ibid. (quoting R. 4:3-3(a)(3)).
Where “the motion is made pursuant to R. 4:3-3(a)(2) or (3), the movant has the burden of
demonstrating good cause for the change.” Ibid.
R. 4:3-2(a) governs where venue may be laid; it provides, in pertinent part as
follows: “Venue shall be laid by the plaintiff in Superior Court actions as follows: . . . (2)
actions not affecting real property which are brought by or against municipal corporations,
counties, public agencies or officials, in the county in which the cause of action arose.” R.
4:3-2(a). For venue purposes, “a corporation shall be deemed to reside in the county in
which its registered office is located or in any county in which it is actually doing business.”
R. 4:3-2(b).
A review of the case law interpreting R. 4:3-2 indicates courts in New Jersey
generally defer to the plaintiff’s choice of venue in the event alternative venues exist. See
5
Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974) (finding “a plaintiff’s choice of
forum ordinarily will not be disturbed except upon a clear showing of real hardship or for
some other compelling reason.
The choice of forum must be demonstrably
inappropriate.”); Doyley v. Schroeter, 191 N.J. Super. 120, 124-26 (Law Div. 1983)
(determining “the rule itself expresses a bias in favor of plaintiff’s choice. . . . Absent the
likelihood of substantial inconvenience or injustice, reason dictates that a change in venue
with its inevitable consequences be avoided.”).
However, venue requirements are not jurisdictional. State v. Middlesex County,
206 N.J. Super. 414, 420 (Ch. Div. 1985) (citing Doyley, supra, 191 N.J. Super. at 123).
“Rather, they are rules of practice designed to place litigation at a location convenient to
parties and witnesses.” Id. (citing Doyley, supra, 191 N.J. Super. at 126-28). Accordingly,
an action may be transferred from one venue to another where the convenience of the
parties and witnesses is not served by strict application of the venue rule. See R. 4:33(a)(3).
To be timely, “[a] motion for change of venue shall be made not later than 10 days
after the expiration of the time prescribed by R. 4:6-1 for the service of the last permissible
responsive pleading . . . .” R. 4:3-3(b). According to the applicable portion of R. 4:6-1,
“the defendant shall serve an answer . . . within 35 days after service of the summons and
complaint on that defendant. . . . A reply to an answer . . . shall be served within 20 days
after service of the answer.” R. 4:6-1(a). Any objections not made by that time “shall be
deemed waived except that if the moving party relies on [the fair and impartial trial ground]
the motion may be made at any time before trial.” R. 4:3-3(b).
Analysis
6
Before the court is a motion to transfer venue that raises an intriguing nuance in
venue law. An application of long standing standards has shaped this determination. This
is a lawsuit in which Plaintiff seeks damages from a litany of people and entities involved
with the issuance and execution of search warrant, and also involves Plaintiff’s counsel’s
subsequent attempts to recover the seized property.3
This motion hinges upon the determination of whether a municipality’s interest in
keeping its agents in proximity to their place of employment is sufficient to disturb a
Plaintiff’s choice of venue. Within that determination, the question presented is whether a
municipal employee, being sued in his official and individual capacity for actions taken as
a municipal employee, is to be taken into consideration for the purposes of determining
appropriate venue. See R. 4:3-3(a)(3) (allowing for change of venue “for the convenience
of parties.”) The third issue raised is whether compliance with the prescribed ten day period
to file this motion following the last responsive pleading should be determinative. Lastly,
for the purposes of determining proper venue pursuant to R. 4:3-2, is a consideration as to
where “the cause of action arose.”
At oral argument, and for the first time, Oettinger Jr. detailed the circumstances
leading up to the Warrant. Counsel provided an exhibit marked at his request as P1, which
was a four page printout of the amywollock.wordpress.com website entitled “Amy H.
Wollock, JD. Rutgers GSE” (“website”). Although the following case was not disclosed,
it provides a through factual background:
Plaintiff’s damages are not clearly set forth in the papers. “In the absence of damages, plaintiff would have
no cause of action against the defendants. Plaintiff suffered damages when the seizure of his property was
continued after no criminal evidence was found, and after completion of the forensic analysis, thereby
exceeding the specific terms and authority of the search warrant. . . . Plaintiff was further damaged when the
various orders [] were defied [and] . . . when [] Judge Wright failed or refused to enforce his own Amended
Order dated February 28, 2013.” (Pl. Brief at 7.).
3
7
Detective Nanci Arraial of the Bedminster Township Police
Department initiated an investigation in 2007 after Amy
Wollock, an associate dean at Rutgers University, contacted
her concerning a website, amywollock.com. Wollock told
Arraial she advised plaintiff, a master's degree student, that
he needed some additional humanities classes before she
would approve his certification to become a teacher in New
Jersey. Plaintiff threatened to sue Rutgers if he was not
approved for a teacher certification. Wollock told Arraial she
was afraid of plaintiff.
Amywollock.com was a self-described "web gripe site."
The text on the website began, I have a gripe with Amy
Wollock (former Director of Teacher Education) of the
Rutgers University Graduate School of Education (GSE),
New Brunswick, NJ. Unfortunately, I was systematically
threatened and excluded from opportunities to file a formal
grievance against Amy Wollock while I was a student at
Rutgers, so this web site had become my only recourse.
The website had a photograph of Wollock, with a countdown
feature immediately below that stated, "Only 208 days until
the fun begins." The number of days was reduced on a daily
basis. The website did not explain what was meant by "the
fun." Plaintiff invited readers to return to the site to "tell your
own horror story" and promised not to publish names or
contact information unless requested to do so.
Through the use of grand jury subpoenas, Arraial learned
that amywollock.com was created using an email account,
[email protected], and that the registrant for that
account was listed as Amy Wollock. Arraial confirmed that
Wollock had not created the email account and, investigating
further, was able to ascertain, through the IP address, that the
plaintiff was the creator of the website.
Arraial filed a complaint against plaintiff alleging that
amywollock.com constituted harassment in violation of
N.J.S.A. 2C:33-4(a). Plaintiff was found guilty in
Bedminster Municipal Court and sentenced to probation in
February 2009, with the conditions that plaintiff have no
contact with Wollock and was prohibited from "using [his]
computer to make inquiries of any kind about" her. Plaintiff
appealed and was found not guilty by the Superior Court on
July 23, 2009.
However, on June 10, 2009, before plaintiff's conviction was
reversed,
Wollock
contacted
Arraial
regarding
amywollock.wordpress.com, a website she believed violated
the municipal court's order. The wording on the website
mirrored the nature and content of amywollock.com. In
8
addition, the website included hyperlinks to: a mapping
system that showed Wollock's home address with an aerial
map of her home; Wollock's email address, phone number,
and a background check on her; and other links to websites
that offered personal information such as the names of
several of Wollock's relatives, her previous addresses, date
of birth, average income, and average home value.
Through the use of grand jury subpoenas, Arraial obtained
subscriber information for the website and learned that
amywollock.wordpress.com was registered on June 30,
2007. Arraial also learned the subscriber's username
(amywollock), user email ([email protected]), and
IP address. None of these were created by Wollock. Through
the IP address, Arraial determined that the website and email
account were created and used on plaintiff's computer.
[J.O. v. Twp. of Bedminster, 433 N.J. Super. 199, 206-07
(App. Div. 2013)]4
Counsel for Plaintiff correctly posits the website contained a “click-thru
agreement,” whereby to view the content, the “visitors of the website are deemed to have
accessed [the] website from the local municipal domicile of the webmaster.” Following
Detective Arraial’s investigation, the Warrant was sought for the webmaster of the website,
which was determined to have been Plaintiff.5
A truncated version of the remaining relevant key facts are as follows. The Warrant
was applied for by a Somerset County municipality’s detective with the assistance of a
Somerset County prosecutor and issued by a Somerset municipal judge. The warrant was
executed at Plaintiff’s home in Bergen County on November 4, 2009. The property was
presumably removed to Somerset County that same day and remained there beyond the
date it was determined no evidence of a crime existed in the property, thereby exhausting
the reaches of the Warrant. Plaintiff’s counsel, who is also his father, caused the return of
4
The applicability of the entire controversy doctrine was not an issue presented and shall remain undecided
for the purposes of this motion.
5
At oral argument, it was unclear if Oettinger Jr. denied Plaintiff was the webmaster.
9
the seized property 2012, after no charges were brought against Plaintiff. Counsel further
sought to enforce Plaintiff’s rights against the involved Somerset County entities and
officials thereof. Specifically, Plaintiff’s counsel applied for and received an order
compelling the return of any Derivatives taken from the seized equipment or a certification
stating no Derivatives existed. It is asserted no Derivatives have been returned or
certifications executed.
Generally, “[a]bsent the likelihood of substantial inconvenience or injustice,” a
plaintiff’s choice of venue is favored and a change of venue should be avoided. Doyley,
supra, 191 N.J. Super. at 126. Venue requirements are not jurisdictional, consequently,
venue may be transferred from on venue to another where the convenience of the parities
and witnesses is not served by strict application of the venue rule. See R. 4:3-3; State v.
Middlesex County, supra, 206 N.J. at 420. Past “decision[s] have indicated that the
convenience of public bodies and officials is to be heavily weighed when questions
regarding venue are at issue.” Fine v. Rutgers, 163 N.J. 464, 472 (2000) (citing Sinderbrand
v. Schuster, 170 N.J. Super. 506, 511 (Law. Div. 1979)). A plaintiff’s right “to choose his
own forum is required to yield to the venue Rule’s objective of minimizing inconveniences
to public entity defendants.” Ibid. The New Jersey Supreme Court, in Fine, determined the
purpose of R. 4:3-2 would be undermined if a public entity was forced to defend itself in
an employment action outside the county in which it is located. Id. at 473. In fact, the
court noted even an adjacent county “undermines the policies fostered by Rule 4:3-2.” Id.
at 472.
When applying the aforementioned principal to this matter, one must consider the
“convenience” to the public entity and its officials. Plaintiff’s counsel’s brief in opposition
10
asserts only one of the Franklin Defendants has an address in Somerset County, as
Prosecutor Rodriguez and Judge Wright reside in Middlesex County. The court
understands this assertion to convey Somerset is actually not a more convenient forum than
Bergen, as the public officials do not reside in Somerset. However, counsel for the Franklin
Defendants correctly asserts all of the Plaintiff’s allegations against the Franklin
Defendants, Detective Arrail, Detective Meyer, Prosecutor Guss and Prosecutor Williams
relate to the performance of their official duties as employees of Somerset County entities.
The question then presented is whether suing a public official in both his individual
and official capacity transforms the public official’s county of employment into a less
convenient or even a non-convenient venue. This issue is not novel and prior decisions are
illuminating. The New Jersey Supreme Court in Fine determined “the rational underlying
Rule 4:3-2 is that the public interest would be prejudiced if public officials were required
to defend lawsuits in distant venues.” Fine, supra, 163 N.J. at 472 (citing Sinderbrand v.
Schuster, 170 N.J. Super. 506, 511 (Law Div. 1979)). The relevant portion Sinderbrand
illustrates how this policy has been applied:
The public interest would not be well served if the duties of
public officials were disrupted or left unattended while they
were forced to defend actions brought against them in distant
counties which have little or no connection with the conduct
that forms the basis of the suit. This consideration would not
be furthered if R. 4:3-2(a)(2) could easily be circumvented
by suing a public official as an individual rather than as a
public official, although the conduct complained of was
performed in the defendant’s official capacity.”
[Sinderbrand, 170 N.J. Super. at 511.]
To allow the Plaintiff to avoid litigation in the county of both the entity and its
public officials, due to the public official being named in the lawsuit their official and
11
individual capacity and the private residences of the public officials is in a different county,
would undercut the purpose of the venue rule. See Fine, supra, 163 N.J. at 472 (finding
“the public interest would be prejudiced if public officials were required to defend lawsuits
in distant venues.”). Therefore, the location of Prosecutor Rodriguez’s and Judge Wright’s
individual residences is insignificant to this determination. To promote the purpose of the
venue rule, only the location of the public offices held by Prosecutor Rodriguez and Judge
Wright is considered.6
Oettinger Jr. also asserts his inconvenience of having to travel multiple times to
municipal court in Somerset to represent Plaintiff offsets any inconvenience venue in
Bergen County causes for Defendants. In making this assertion, Oettinger Jr. implies the
inconvenience of an attorney traveling to a distant venue in order to represent his client is
a consideration the venue rules contemplate. See R. 4:3-2; R. 4:3-3. However, the rules
only consider the convenience or inconvenience of a party and Oettinger Jr. is not a party.
See R. 4:3-2; R. 4:3-3
After Oettinger Jr. set forth the circumstances leading up to the Warrant at oral
argument, counsel asserted Wollock brought her harassment complaint in the incorrect
locale, as the website had a form of forum selection clause whereby visitors agreed to have
visited the website from the webmaster’s locale. Oettinger Jr. then posited Wollock should
have sought the Westwood police’s assistance as Plaintiff resided in Westwood.7 Again,
Plaintiff’s counsel misconstrues the venue rules. The issue presented is whether Plaintiff’s
action against Defendants should be venued in Somerset or Bergen. Whether a website’s
6
If this matter proceeds to trial, it would be scheduled during a work day and require any public officials,
defendant or witness, to travel to the venue.
7
In making this argument, Plaintiff’s counsel apparently concedes Plaintiff was the webmaster as the Plaintiff
resided in Westwood and Westwood was the proper locale.
12
terms control where a “victim” of the website can seek police assistance in a different
action is not a question before this court. Further, Oettinger Jr. failed to present a case or
rule which suggests on a motion to change venue, a court may consider whether a victim
sought the correct municipality’s assistance in a related, but prior action.8
Plaintiff further asserts motions have been filed and decided in Bergen and pursuant
to Doyley v. Schroeter, 191 N.J. Super. 120 (Law Div. 1983), the case requires venue
remain in Bergen.9 While judicial efficiency may be a factor considered when determining
whether convenience to public officials and entities should disturb a party’s choice of
venue, it is not determinative.10 Nevertheless, the clear and overwhelming factor affecting
convenience in this matter is the three municipal entities are located in Somerset and six
public officials employed by those entities are named defendants. Most potential witnesses
from or associated with the defendant entities will also be located in Somerset. Given the
sheer number of officials from Somerset County entities involved, Plaintiff’s choice of
venue must “yield to the venue Rule’s objective of minimizing inconveniences to public
Candidly, Oettinger Jr.’s assertion that both the victim and police are bound to abide by the terms and
conditions of a website such as the one created about Wollock, is not founded in any law of which this court
is aware. Even if Oettinger Jr.’s argument was founded in law, it still makes a logical misstep. It was the
investigation following Wollock’s complaint that determined Plaintiff was the webmaster. Wollock did not
know who was responsible for creating the website attacking her character, the creator or author failed to pen
his name to the website. As such, it is unclear how Wollock could have proceeded pursuant to Oettinger Jr.’s
logic.
9
Oettinger Jr. further requested the unanimity required by the federal rule for removal to state court,
necessitating all similarly situated parties join in the motion for the motion to be granted, be adopted in
applying New Jersey’s venue law. As Plaintiff conceded there is no published or unpublished New Jersey
opinion adopting the same, this court declines to apply federal removal law to New Jersey change venue
rules. It is not for this court to make new law or revise current court rules. That judicial function is appropriate
for the appellate division or the Supreme Court.
10
It may also be relevant that separate and apart from this motion, since the Franklin Defendants have filed
an answer, there have been no additional actions taken by the Franklin Defendants or Plaintiff.
8
13
entity defendants.” Fine, supra, 163 N.J. at 472.11 As such, the Franklin Defendants’
motion to change venue is granted.
Nevertheless, Plaintiff correctly posits the Franklin Defendants’ motion to change
venue was made after the time prescribed by R. 4:3-3(b).12 However, any rule of the court
may be relaxed in the interests of justice. R. 1:1.2(a). Given the circumstances detailed
above, the public interest is served by transferring the matter to Somerset. As such, the ten
day time period prescribed by is relaxed in the interests of justice. Therefore, a transfer of
venue to Somerset County is granted.
In view of the aforesaid conclusion, the court need not and does not reach the final
novel issue presented, determining “the county in which the cause of action arose.” R. 4:32. Whether the cause of action arose at the moment of seizure in Bergen, at the point
retention of the property in Somerset was no longer permitted by the terms of the Warrant
or at some point after Judge Wright issued an order compelling return of the property, is
not determined for the purposes of this motion.
The motion to transfer venue to Somerset County is granted.
The motion was opposed.
As heretofore noted, Plaintiff’s damages are not readily discernable. It appears Plaintiff shall allege he lost
the ability to use some computer equipment for a period of time. The question why Plaintiff did not attempt
to mitigate his damages and replace the seized property, which would have resulted in readily apparent
damages for the cost of cover, need not be decided herein. At oral argument, Oettinger Jr. advised
Plaintiff was seeking $1500 for the cost of the computer equipment and damages for the loss access to
Plaintiff’s email contacts and work stored on the equipment.
12
Plaintiff asserts the ten day period after the last responsive pleading expired December 22, 2013. As the
Franklin Defendants assert they experienced a coverage question, Plaintiff entered into a consent order
extending the time period to file an answer until August 15, 2014. It appears the same may have extended
the period to file a change of venue. Nevertheless, the time period to file a motion to change venue was not
met.
11
14