Bardzell v. Gomperts

515 F.Supp.3d 256

The ESTATE OF Suzanne BARDZELL, Plaintiff,

v.Jessica GOMPERTS, in her official representative and individual capacity, Bergen County Prosecutors Office, ABC Corporations and Public Entities 1-5, and ABC Corporation or Entities, Directors, Officers, Servants, Agents and/or Employees, John/Jane Doe(s) 1-10, Defendants.

Civ. No. 20-4555 (KM) (ESK)

United States District Court, D. New Jersey.

Signed January 27, 2021

Lawrence H. Kleiner, Lawrence H. Kleiner, L.L.C., Closter, NJ, Eric V. Kleiner, Englewood Cliffs, NJ, for Plaintiff.

Michael Ralph Sarno, Office of the Attorney General for New Jersey Tort Litigation and Judiciary Section, Trenton, NJ, for Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff, the Estate of Suzanne Bardzell, brings this action against Defendants, the Bergen County Prosecutor's Office ("BCPO"), BCPO Assistant Prosecutor Jessica Gomperts ("AP Gomperts"), and unnamed others.¹ (Am. Compl. at 2). Defendants move to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. For the reasons provided herein, I will grant the motion.

I. Summary²

a. Procedural Background

This matter arises from the murder of Suzanne Bardzell by her ex-boyfriend, former New York Police Department ("NYPD") Officer Arthur Lomando. (Am. Compl. ¶¶37-43). Lomando was convicted of the murder in the first degree and now serves what is effectively a life term in New Jersey State Prison. (Am. Compl. ¶3). Plaintiff now asserts claims against the BCPO and AP Gomperts for violations of the Federal Civil Rights Act, 42 U.S.C. § 1983 (" Section 1983") and the New Jersey Civil Rights Act ("NJCRA"), N.J. Stat. Ann. §§ 10:6-1 to -23, claiming that Defendants bear responsibility for the murder's having occurred. (Am. Compl. ¶¶156-177).

Plaintiff originally filed a civil action (No. 2:17-cv-01877 (the "17-1877 Action")) on March 21, 2017 against the Midland Park Police Department ("MPP"), the Borough of Midland Park, and Lomando. (Am. Compl. ¶¶2-3). Plaintiff settled the claims involving the Police Department and the Borough in 2018. (Am. Compl. ¶2). The 17-1877 Action remains pending with respect to Lomando. (Am. Compl. ¶3) Lomando, however, is "indigent," "destitute," and "has no funds to pay any damages." (Id. )

Plaintiff alleges that at the time the 17-1877 Action was filed, "the entire case as far as Plaintiff and the Plaintiff's attorneys knew about or had knowledge of, Defendant BCPO and Defendant BCPO AP Gomperts had no involvement whatsoever with the death of the Plaintiff." (Am. Compl. ¶4). Indeed, the complaint filed in the 17-1877 Action alleged that the Midland Park Police never consulted with the BCPO or its prosecutors. (Am. Compl. ¶5; 17-1877 Action (DE 1 ¶60)). The complaint alleges that during discovery, on April 24, 2018, Plaintiff obtained confidential police reports demonstrating "that the Midland Park Police played only a ministerial and minor role in the matter." (Am. Compl. ¶8). Those documents indicated that the BCPO Defendants in this matter "had not only participated in the events that directly resulted in the death of Suzanne Bardzell," but "took complete and absolute jurisdiction and control of the actions local law enforcement would take." (Am. Compl. ¶9). Hence this action.

b. Factual Background

The facts alleged in the Amended Complaint are as follows.

Ms. Bardzell was a special education teacher and a divorced mother of two teenage children.³ (Am. Compl. ¶40, 43). After her divorce, Bardzell and Lomando dated for three years before becoming estranged. (Am. Compl. 43). Lomando, a former police officer, had "been terminated by the NYPD due to a mental illness." (Am. Compl. ¶42). He lived in Centereach, New York. (Am. Compl. ¶50).

Sometime prior to October 2015, Bardzell ended her relationship with Lomando. (Am. Compl. ¶ 51). However, the complaint alleges, "Lomando constantly stalked her in an obsessive, harassing, and disturbing fashion." (Id. ). On October 5, 2015, Lomando "burglarized" Bardzell's "residence by breaking in through the garage." (Am. Compl. ¶54). Lomando then held pair of scissors to Bardzell's throat. (Id. ). Lomando told Bardzell that he planned to kill her and then take his own life. Id. "Bardzell promis[ed] Lomando she would not report the incident to the police, and then placat[ed] him to avoid her demise." (Id. ). After Lomando left her residence, Bardzell called 911 and reported the incident to the MPP. (Am. Compl. ¶¶ 57, 58). The police reports state that Bardzell also informed the MPP about prior, unreported acts of domestic violence by Lomando. (Id. ). The MPP "ran an immediate search on Lomando" which indicated that New York Police agencies had "reported Lomando as a missing endangered person that escaped from [a] locked unit of a [New York] Forensic Mental Hospital Center/Facility after he became suicidal." (Am. Compl. ¶60)

The Amended Complaint alleges that after receiving Bardzell's October 5 report, the MPP contacted BCPO and AP Gomperts "for instruction and orders as to how to proceed." (AM. Compl. ¶61). However, Defendants "took no action against Lomando to hold him for [New York] police or law enforcement authorities" as a "suicidal endangered mental hospital escapee." (Am. Compl. ¶63). Defendants did not "seek to civilly commit" Lomando; nor did they seek a court order "to maintain the involuntary commitment until Lomando was not a danger to himself or to anyone else." (Am. Compl. ¶65). Instead, Defendants "instructed, directed, and ordered [the] MPP to release Lomando from police custody." (Id. ). After ordering Lomando's release, Defendants "took no action ... to proactively instruct, order or direct" officers to check on Bardzell's welfare or regularly surveil her. (Am. Compl. ¶66). Defendants also failed to "order or direct that Lomando be treated as a person of interest or as a potentially dangerous person to [the] health, security and welfare of Ms. Bardzell, her children and society at large." (Am. Compl. ¶67).

The Amended Complaint alleges that AP Gomperts "instruct[ed] [the] MPP to inform Bardzell that basically there was no case, as it was her word against Lomando's word." (Am. Compl. ¶73). Thus, Defendants "ordered no investigation at all." The "MPP did not attempt to further detain or apprehend Lomando," "did no neighborhood canvassing to determine if witnesses existed," "did not secure the home as a crime scene," and did not secure "DNA evidence, fingerprint evidence and other forensic evidence." (Am. Compl. ¶¶74-75). AP Gomperts's alleged action, or inaction, allegedly caused the MPP's failure to include a second-degree burglary charge in its report form pursuant to the Prevention of Domestic Violence Act ("PDVA"): "MPP's PDVA report form acknowledged the third degree terroristic threat element of the [domestic violence] ("DV") oral Complaint made by Bardzell and the Disorderly Persons charge of harassment but the burglary crime was inexplicably not noted on the DV form." (Am. Compl. ¶76).

According to the Amended Complaint, "Defendant Gomperts’ actions and orders required MPP to refuse to act to Order a Temporary Restraining Order [("TRO")] or Order of Protection to secure Ms. Bardzell more protection." (Am. Compl. ¶77). However, "Defendant Gomperts begrudgingly gave the Plaintiff the option to seek her own TRO as a private citizen" and informed Bardzell that "she could file a citizen's complaint but only as to a [third] degree case." (Am. Compl. ¶81). Thus, "no charges were issued under the PDVA" and "[t]he criminal charges only preliminarily proceeded under the third degree[,] having no real effect and nominal bail provisions." (Am. Compl. ¶84). Bardzell then obtained "her own TRO ... from Municipal Court Judge Brady" on October 5, 2015. (Am. Compl. ¶87).

On October 6, 2016, the Teaneck Police Department ("TPD") filed criminal charges against Lomando for violating the TRO after Lomando "called Bardzell's employer" and "verbally denigrated Bardzell" to her supervisor. (Am. Compl. ¶89). That same day, "Bardzell signed citizen complaints against Lomando at the MPP, but she was not permitted to exceed filing any second degree charges regarding the [October 5] home invasion." (Am. Compl. ¶90). Plaintiff alleges that "[b]ecause Defendant Gomperts did not allow for the filing of police officer signed and issued complaints, the court process was slowed[,] allowing only for a first appearance of the case in Municipal Court that was slated for [October 27, 2015]." (Am. Compl. ¶91.)

On October 7, 2015, Bardzell requested that the MPP perform a welfare check on her children after "she could not reach them and feared Lomando [was] in or near the family's house." (Am. Compl. ¶95). The next day, "Lomando was charged with contempt and harassment." (Am. Compl. ¶96). The MPP then filed a disorderly persons complaint in municipal court, without consulting the BCPO or AP Gomperts, alleging that "Lomando used Bardzell's personal email account to make travel reservations." (Am. Compl. ¶96).

On October 9, 2015, Bardzell reported to the TPD that "Lomando was in violation of the TRO by sending inappropriate sexually explicit photos and information via email to the assistant principal" of Bardzell's school. (Am. Compl. ¶98). On the same date, the MPP "fully briefed Defendant BCPO AP Gomperts" as to the events that had occurred through October 9. The Amended Complaint alleges that Defendant Gomperts nevertheless ordered the MPP not to sign any criminal complaints against Lomando. (Am. Compl. ¶99).

On October 10, 2015, the TPD arrested Lomando, who then "posted a nominal bail immediately by way of bondsman and was free." (Am. Compl. ¶100). Plaintiff alleges that the BCPO Defendants were aware of the TPD domestic violence reports and TPD charges against Lomando for violating the TRO. (Am. Compl. ¶101). Also on October 10, Bardzell contacted the MPP to report "that Lomando was...