SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2479-15T1

JOHN FALAT, JR., MICHAEL RUSSO

and DEBORAH TROUT,

Plaintiffs-Appellants,

v.

THE COUNTY OF HUNTERDON, THE OFFICE

OF THE HUNTERDON COUNTY PROSECUTOR;

GEORGE MELICK, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon;

WILLIAM MENNEN, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon; 

RONALD SWOREN, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon; 

MATTHEW HOLT, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon; 

ERIK PETERSON, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon; 

ROBERT WALTON, individually and

in his representative capacity

as a Hunterdon County Freeholder

and agent of the County of Hunterdon; 

GAETANO DESAPIO, individually and

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2479-15T1

in his representative capacity

as a Hunterdon County Counsel

and agent of the County of Hunterdon; 

KENNETH ROWE, individually and

in his representative capacity

as agent of the Office of the Hunterdon 

County Prosecutor; EDMUND DEFILLIPIS, 

individually and in his representative 

capacity as agent of the Office of

Hunterdon County Prosecutor; CYNTHIA

YARD, individually and in her

representative capacity as Hunterdon

County Administrator and agent of

the County of Hunterdon,

Defendants-Respondents,

and

J. PATRICK BARNES, individually and

in his representative capacity as the

Hunterdon County Prosecutor;

BENNETT BARLYN, individually and in

his representative capacity as agent

of the Office of the Hunterdon County

Prosecutor; WILLIAM MCGOVERN,

individually and in his representative

capacity as agent of the Office of

the Hunterdon County Prosecutor; and

DONNA SIMON, in her individual and

representative capacities,

Defendants.

_____________________________________________

Argued May 21, 2018 – Decided July 25, 2018

Before Judges Messano, Accurso, and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Sussex County, Docket No. 

L-0188-15.

Nina Rossi argued the cause for appellants 

(Law Offices of William J. Courtney, LLC, 
3 A-2479-15T1

attorneys; William J. Courtney, of counsel; 

Nina Rossi, on the briefs).

Thomas B. Hanrahan argued the cause for 

respondents County of Hunterdon, George 

Melick, William Mennen, Ronald Sworen, Matthew 

Holt, Erik Peterson, Robert Walton and Cynthia 

Yard (Hanrahan Pack, LLC, attorneys; Thomas 

B. Hanrahan, of counsel; Nicholas P. Milewski, 

on the brief).

Walter F. Kawalec, III, argued the cause for 

respondent Gaetano DeSapio, Esq. (Marshall 

Dennehey Warner Coleman & Goggin, attorneys; 

Howard B. Mankoff and Walter F. Kawalec, III, 

on the brief).

Eric L. Harrison argued the cause for 

respondents Kenneth Rowe and Edmund DeFillipis 

(Methfessel & Werbel, attorneys; Eric L. 

Harrison, of counsel and on the brief; 

Jennifer M. Herrmann, on the brief).

PER CURIAM

In November 2007, plaintiff Deborah Trout was elected Sheriff 

of Hunterdon County (the County), and she served in that office 

from January 1, 2008, until December 31, 2010. At the beginning 

of her term, Trout appointed plaintiff Michael Russo as 

Undersheriff and plaintiff John Falat, Jr., as an investigator in 

the Hunterdon County Sheriff's Office (HCSO). The HCSO previously 

employed both Trout and Russo, and both had previously filed and 
4 A-2479-15T1

settled litigation against the County.1

In 2010, a Hunterdon County grand jury indicted plaintiffs 

for official misconduct and other crimes and issued a presentment 

regarding operations at the HCSO. By the time the indictments and 

presentment were released publicly in May 2010, the Office of the 

Attorney General had superseded the Hunterdon County Prosecutor's 

Office (HCPO), and a deputy attorney general (DAG) succeeded County 

Prosecutor J. Patrick Barnes and was serving as acting prosecutor. 

In August, a different DAG who was handling the prosecution of the 

indictments moved to dismiss them without prejudice.

In her August 23, 2010 letter to the criminal trial judge, 

the DAG stated the State's motion was "based upon legal and factual 

deficiencies in the indictments," and "errors in the presentation 

of these matters to the grand jury [that] have resulted in 

defective indictments." The DAG also stated "incorrect 

instructions . . . tainted the entire deliberative process." 

Fairly read, the letter questioned both the sufficiency of the 

facts adduced before the grand jury and the legal theory supporting 

 

1 Because these appeals are from orders dismissing plaintiffs' 

complaint pursuant to Rule 4:6-2, and denying their motion for 

leave to file a second amended complaint, plaintiffs' version of 

the facts is treated "as uncontradicted[] accord[ed] . . . all

legitimate inferences" and "accept[ed] . . . as fact" for purposes 

of our review. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 

(2005).
5 A-2479-15T1

the charged crimes. The judge entered an order dismissing the 

indictments without prejudice the same day.

On August 2, 2012, plaintiffs filed a complaint naming the 

County and a number of public officials as defendants, including 

freeholders George Melick, William Mennen, Ronald Sworen, Matthew 

Holt, Erik Peterson, Robert Walton and County Administrator 

Cynthia Yard (collectively, the County Defendants), County Counsel 

Gaetano DeSapio, and Kenneth Rowe and Edmund DeFillipis, 

investigators with the HCPO (collectively, the HCPO Defendants).2 

The complaint was removed to federal court, where Judge Stanley 

R. Chesler granted defendants' motions to dismiss.

In his written opinion, Judge Chesler dismissed with 

prejudice several of the complaint's twenty counts. Judge Chesler 

dismissed the remaining counts without prejudice, noting the 

pleading "largely fail[ed] to connect . . . factual allegations 

to the specific counts . . . ." He permitted plaintiffs to file 

an amended complaint "that clearly spells out which individual 

plaintiffs are making what legal claims against whom and set forth 

specific factual allegations to support each of those claims."

Plaintiffs filed an amended complaint in federal court, and 

defendants again moved to dismiss. Judge Faith S. Hochberg's 

 

2 The complaint included other defendants who were not named in 

future iterations of the pleading or were otherwise dismissed.
6 A-2479-15T1

November 21, 2014 order dismissed plaintiffs' "federal claims" 

with prejudice and remanded "all remaining state law causes of 

action." In her written opinion that accompanied the order, Judge 

Hochberg noted that despite Judge Chesler's earlier order, 

"[p]laintiffs persist[ed] in reasserting some of the[] alreadydismissed claims." Judge Hochberg refused to "revive these causes 

of action," and summarized what remained extant for her 

consideration:

[T]he remaining counts include: (a) free 

speech claims under the First Amendment; (b) 

a conspiracy claim asserted pursuant to 42 

U.S.C. § 1985(3); (c) a malicious prosecution 

claim under the Fourth Amendment against the 

individual Defendants; and (d) state law 

claims under the New Jersey Constitution, a 

state law malicious prosecution claim, and a 

claim under [the New Jersey Law Against 

Discrimination (NJLAD)], hostile work 

environment, retaliation, and constructive 

discharge.

Judge Hochberg dismissed plaintiffs' First Amendment claims 

as untimely, specifically rejecting their assertion that the 

"continuing violation[s]" doctrine equitably tolled the two-year 

statute of limitations, and concluded any specific allegations 

within the statute of limitations were insufficiently pled or 

otherwise insufficient as a matter of law. The judge dismissed 

plaintiffs' 42 U.S.C. § 1985 conspiracy claims, finding there were 

no allegations of "class-based, invidiously discriminatory 
7 A-2479-15T1

animus," quoting Faylor v. Szupper, 411 F. App'x 525, 530 (3d Cir. 

2011), or "an illegal agreement" among defendants. Turning to 

plaintiffs' malicious prosecution claim, Judge Hochberg determined 

the complaint failed to allege "a lack of probable cause sufficient 

to overcome the effect of the . . . indictment . . . ," or that 

defendants "initiated the criminal proceeding." The judge 

declined to exercise supplemental jurisdiction over plaintiffs' 

state law claims and remanded them to the Law Division.

Defendants then renewed their motions to dismiss the amended 

complaint pursuant to Rule 4:6-2(e). In addition to filing 

opposition, plaintiffs cross-moved seeking leave to file a 

proposed 236-page second amended complaint (second amended 

complaint). The second amended complaint expanded some factual 

allegations, primarily by repeating the same facts in each count 

of the complaint, and abandoned counts in the prior complaint 

alleging federal claims and Trout's claim for "constructive 

discharge." After oral arguments, the entry of interim orders, a 

motion for reconsideration and further arguments, the Law Division 

judge entered a series of orders on January 7, 2016 that granted 

defendants' motions to dismiss the complaint with prejudice and 
8 A-2479-15T1

denied plaintiffs' motion for reconsideration and cross-motion to 

file the second amended complaint. This appeal followed.3

I.

A.

"Our review of the trial court's dismissal order[s] in this 

context is de novo." Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 

274, 287 (App. Div. 2014).4 Motions to dismiss for failure to 

state a claim "are judged by determining 'whether a cause of action 

is "suggested" by the facts.'" Nostrame v. Santiago, 213 N.J. 

109, 127 (2013) (quoting Printing Mart-Morristown v. Sharp 

Electronics Corp., 116 N.J. 739, 746 (1989)). Although we must 

review plaintiffs' 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," ibid. (quoting Printing 

Mart, 116 N.J. at 746), "[a] pleading should be dismissed if it 

states no basis for relief and discovery would not provide one." 

Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 

103, 113 (App. Div. 2011). "[T]he 'inquiry is limited to examining 

the legal sufficiency of the facts alleged on the face of the 

 

3 Plaintiffs' notice of appeal is limited to the January 7, 2016 

orders.

4 As a result, plaintiffs' arguments about the motion judge's 

obvious confusion regarding the various complaints is irrelevant.
9 A-2479-15T1

complaint.'" Nostrame, 213 N.J. at 127 (quoting Printing Mart, 

116 N.J. at 746).

"A motion to dismiss pursuant to Rule 4:6-2(e) ordinarily is 

granted without prejudice." Hoffman v. Hampshire Labs, Inc., 405 

N.J. Super. 105, 116 (App. Div. 2009). However, when the complaint 

fails to set forth "[t]he traditional articulation" of the elements 

of a cause of action, no additional facts could be pled, or further 

proceedings will amount only to "a mere fishing expedition," 

dismissal with prejudice is entirely appropriate. Nostrame, 213 

N.J. at 128.

B.

"[T]he granting of a motion to file an amended complaint 

always rests in the court's sound discretion." Notte v. Merchants 

Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One 

Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998)). 

"[T]h[e] Court has construed Rule 4:9-1 to 'require[] that motions 

for leave to amend be granted liberally,' even if the ultimate 

merits of the amendment are uncertain." Prime Accounting Dept. 

v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (quoting 

Kernan, 154 N.J. at 456. "One 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.'" Ibid. (quoting Notte, 185 N.J. at 501).
10 A-2479-15T1

II.

Applying these standards to plaintiffs' amended complaint, 

we affirm its dismissal with prejudice. We also affirm the order 

denying plaintiffs' motion for reconsideration and leave to file 

the second amended complaint.

A.

Trout and Russo alleged the County violated the New Jersey 

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. As we 

can best discern from the amended complaint, Trout alleged 

discrimination and disparate treatment based upon gender (Count 

One), and both plaintiffs alleged the County created a hostile 

work environment (Count Two) and retaliated against them for prior 

protected activity — the two previously settled lawsuits (Count 

Six). In Count Eight, plaintiffs alleged Yard and DeSapio aided 

and abetted the County in its discrimination and retaliation, and 

in Count Nine, plaintiffs alleged the County was vicariously liable 

under the doctrine of respondeat superior for actions of the 

individual County Defendants.5

 

5 In Count Seven, Trout alleged constructive discharge. As already 

noted, the proposed second amended complaint abandoned this claim, 

and Trout has not made any argument addressing the dismissal of 

this cause of action in her brief. An argument not briefed is 

deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 

525 n.4 (App. Div. 2008).
11 A-2479-15T1

Claims brought under the LAD are subject to a two-year statute 

of limitations. Vitale v. Schering-Plough Corp., 231 N.J. 234, 

249 (2017) (citing Montells v. Haynes, 133 N.J. 282, 291-92 

(1993)). "Discriminatory termination and other similar abrupt, 

singular adverse employment actions that are attributable to 

invidious discrimination . . . generally are immediately known 

injuries, whose two year statute of limitations period commences 

on the day they occur." Alexander v. Seton Hall Univ., 204 N.J. 

219, 228 (2010).

"Whether a cause of action is barred by a statute of 

limitations is a question of law . . . reviewed de novo." Catena 

v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016) (citing 

Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 

318, 325 (App. Div. 2006)). Plaintiffs filed their initial 

complaint on August 2, 2012. Therefore, any discrete 

discriminatory acts allegedly committed by defendants prior to 

August 2, 2010, were time-barred, and plaintiffs do not contend 

otherwise.

Plaintiffs seek the safe harbor of the continuing violation 

doctrine, "a judicially created . . . equitable exception" to the 

LAD statute of limitations. Bolinger v. Bell Atl., 330 N.J. Super. 

300, 306 (App. Div. 2000). The continuing violation doctrine does 

not allow the aggregation of individually actionable acts in order 
12 A-2479-15T1

to avoid the statute of limitations. Roa v. Roa, 200 N.J. 555, 

567 (2010).

If, however, a plaintiff alleges "a pattern or series of 

acts, any one of which may not be actionable as a discrete act, 

but when viewed cumulatively constitute a hostile work 

environment," the cause of action accrues "on the date on which 

the last act occurred." Shepherd v. Hunterdon Developmental Ctr., 

174 N.J. 1, 21 (2002) (citation omitted). As the Court explained:

[T]he continuing violation theory was 

developed to allow for the aggregation of 

acts, each of which, in itself, might not have 

alerted the employee of the existence of a 

claim, but which together show a pattern of 

discrimination. In those circumstances, the 

last act is said to sweep in otherwise 

untimely prior non-discrete acts.

What the doctrine does not permit is the 

aggregation of discrete discriminatory acts 

for the purpose of reviving an untimely act 

of discrimination that the victim knew or 

should have known was actionable. Each such 

discrete discriminatory act starts a new clock 

for filing charges alleging that act.

[Roa, 200 N.J. at 569 (citation omitted).] 

In the amended complaint, plaintiffs' specific post-August 

2, 2010 factual allegations are: Melick sent a letter to then 

Governor Chris Christie and other public officials questioning why 

the Attorney General had taken over the prosecution of the 

indictment; Mennen stated at a regular meeting of the freeholder 
13 A-2479-15T1

board in September 2010 that although the indictment was dismissed, 

the board should "administratively review" the allegations; 

DeSapio and the County Defendants disclosed unspecified "personal 

material relating to insurance programs . . . and [plaintiffs'] 

personal and family circumstance" without going into executive 

session; and on unspecified dates during the "term of Trout," the 

County Defendants refused to permit access to the "Sheriff's Trust 

Fund," interfered with her hiring decisions, would not permit 

other county departments to perform work at HCSO offices without 

Yard's approval and "scrutinized, questioned and delayed" 

contracts with the HCSO. Plaintiffs alleged this amounted to 

disparate treatment in violation of the LAD.

Added to this list in the second amended complaint was an 

allegation that in September 2010 the freeholders sought access 

to the criminal investigative file as part of their decision to 

administratively review the now dismissed criminal charges, and 

that they discussed plaintiffs' unemployment benefits at a July 

2011 public meeting later reported in a local newspaper.

However, there were no factual allegations connecting these 

otherwise gender-neutral actions to Trout's LAD claims. Indeed, 

the only direct allegation in either complaint regarding Trout's 

gender was that upon her election in 2007, Melick referred to her 

as a "b****." Not only were the allegations insufficient to 
14 A-2479-15T1

overcome the two-year statute of limitations via the continuous 

violation theory, they were insufficient to plead a cause of action 

under the LAD in the first instance. See Aguas v. State, 220 N.J. 

494, 509 (2015) (emphasis added) (holding in a gender-based LAD 

hostile work environment case, a female plaintiff must demonstrate 

that the complained-of conduct "(1) would not have occurred but 

for [her] gender; and it was (2) severe or pervasive enough to 

make a (3) reasonable woman believe that (4) the conditions of 

employment are altered and the working environment is hostile or 

abusive"). Russo did not attempt to allege an independent genderbased LAD claim, nor could he. Ibid. We affirm the dismissal 

with prejudice of Trout's and Russo's LAD claims in Counts One and 

Two of the amended complaint.6

 

6 It is unnecessary to address in detail an alternative argument 

advanced by the County Defendants that supported dismissal of 

Trout's LAD claim, specifically that Trout was not an employee of 

the County, and, therefore, she could not assert a viable LAD 

claim against the County. See N.J.S.A. 10:5-12(a) (prohibiting 

discriminatory practices by an "employer"); Thomas v. County of 

Camden, 386 N.J. Super. 582, 594 (App. Div. 2006) (citation 

omitted) ("Clearly, the LAD was intended to prohibit 

discrimination in the context of an employer/employee 

relationship.").

In Communications Workers of America v. Treffinger, 291 N.J. 

Super. 336, 350-51 (Law Div. 1996), the court described the 

statutory powers provided by the Legislature to the Sheriff, a 

constitutional officer, regarding personnel decisions, and 

concluded, "the Sheriff, not the County, is the exclusive employer

(footnote continued next page)
15 A-2479-15T1

Read in the most indulgent light, the allegations in Count 

Six of the amended complaint were that Trout's prior lawsuit, 

making claims under the LAD and the Conscientious Employee 

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and Russo's prior 

CEPA suit brought resulted in retaliatory conduct by the County 

Defendants' against both. See N.J.S.A. 10:5-12(d); N.J.S.A. 

34:19-3.

The LAD recognizes a cause of action for retaliation. 

N.J.S.A. 10:5-12(d). "When the claim arises from alleged 

retaliation, the elements of the cause of action are that the 

employee 'engaged in a protected activity known to the [employer,]' 

the employee was 'subjected to an adverse employment decision[,]' 

and there is a causal link between the protected activity and the 

adverse employment action." Battaglia v. United Parcel Serv., 

Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco 

Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)); see also Royster 

v. N.J. State Police, 439 N.J. Super. 554, 576 (App. Div. 2015) 

(defining CEPA retaliation claim as having the same elements).

 

(footnote continued)

and/or hiring authority for his office." Id. at 351. Moreover, 

the traditional analyses utilized to consider whether an employeremployee relationship exists between the Sheriff and the County

weigh heavily in favor of concluding the County is not the employer 

of the Sheriff. See, e.g., Thomas, 386 N.J. Super. at 595-99.
16 A-2479-15T1

The amended complaint and second amended complaint alleged 

that after Trout's 2007 election, the County Defendants' and 

DeSapio's words and conduct created a hostile work environment 

equivalent to adverse employment action for purposes of the LAD's 

anti-retaliation provision. The alleged "protected activity" was 

a lawsuit Trout filed nearly a decade earlier, in 1998. In Young 

v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005), 

we held that in an LAD retaliatory discharge case where timing 

alone was not "unusually suggestive," a plaintiff must set forth 

other evidence to establish causality. As to Trout, both the 

amended and second amended complaint lack facts alleging any nexus 

between the 1998 lawsuit and subsequent conduct, save a single 

comment attributed to Melick made in 2007 that the County 

Defendants would "not . . . make it easy" for Trout because "[t]he 

b**** sued us." More importantly, as already noted, the postAugust 2010 conduct alleged in both the amended and second amended 

complaint independently failed to establish incidents of LAD 

retaliation and are insufficient to qualify as retaliatory conduct 

under the continuing violation doctrine.

Russo's prior lawsuit against the County was filed in 1995, 

twelve years before Trout's election and seventeen years before 

he filed this lawsuit. He fails to cite any case law supporting 

the proposition that the filing of a prior CEPA lawsuit is 
17 A-2479-15T1

"protected activity" that can trigger another CEPA violation.7 We 

need not address this point because the amended complaint and 

second amended complaint are devoid of allegations the County 

Defendants took adverse employment action against Russo 

personally.

Moreover, CEPA contains a one-year statute of limitations. 

N.J.S.A. 34:19-5. Allegations of post-August 2, 2011 retaliatory 

conduct taken against Russo personally are non-existent in both 

pleadings. As a result, the retaliation claims of both Trout and 

Russo in Count Six of the amended complaint were properly dismissed 

and are not salvaged by the allegations in the second amended 

complaint.

B.

Plaintiffs Trout and Russo argue that although Judge Hochberg 

dismissed with prejudice their federal causes of action under the 

United States Constitution, § 1983 and § 1985, the Law Division 

judge erred by dismissing Count Four (Conspiracy in Violation of 

the New Jersey Constitution), and Count Five (Violation of the New 

Jersey Constitution and the New Jersey Civil Rights Act, N.J.S.A. 

10:6-1 to -2 (the NJCRA)), of the amended complaint. As we can 

 

7 We are aware of no reported case that addresses the issue, 

although some of our unpublished decisions have reached differing 

results.
18 A-2479-15T1

best discern, plaintiffs contend that "[a]lthough the NJCRA may, 

at times, be interpreted as analogous to . . . [§] 1983, that is 

certainly not always the case." Plaintiffs argue the amended 

complaint and second amended complaint alleged violations of New 

Jersey's Constitution and statutes, claims specifically preserved 

and remanded by Judge Hochberg.

"[O]ur State Civil Rights Act is modeled off of the analogous 

Federal Civil Rights Act, 42 U.S.C. § 1983, and is intended to 

provide what Section 1983 does not: a remedy for the violation of 

substantive rights found in our State Constitution and laws." Harz 

v. Borough of Spring Lake, ___ N.J. ___, ___ (2018) (slip op. at 

17) (quoting Tumpson v. Farina, 218 N.J. 450, 474 (2014)). The 

NJCRA "is a means of vindicating substantive rights and is not a 

source of rights itself." Gormley v. Wood-El, 218 N.J. 72, 98 

(2014). "The statute of limitations for claims under the NJCRA 

is two years[,]" Lapolla v. Cty. of Union, 449 N.J. Super. 288, 

298 (App. Div. 2017) (citing N.J.S.A. 2A:14-2(a)), the same statute 

of limitations that applied to plaintiffs' federal civil rights 

claims. Freeman v. State, 347 N.J. Super. 11, 21-22 (App. Div. 

2002).

Plaintiffs seemingly argue without any legal support that the 

continuing violation theory salvages their NJCRA claims. Notably, 

Judge Hochberg rejected the argument as it pertained to plaintiffs' 
19 A-2479-15T1

federal civil rights claims. In Freeman, we rejected claims of 

equitable tolling and application of the discovery rule to salvage 

the plaintiffs' claims of federal civil rights violations under 

admittedly different factual circumstances. Id. at 28-32.

In any event, in the absence of controlling precedent to the 

contrary, Trout's and Russo's NJCRA claims are limited to 

allegations that post-date August 2, 2010. We have already 

synopsized above what those allegations are. They are inadequate 

to state a cause of action under any of the provisions of the New 

Jersey Constitution, cited only parenthetically in Count Four of 

the amended complaint, or the NJCRA, cited in Count Five of the 

amended complaint.

Count Three of the second amended complaint is 119 pages long 

and lists the specific state statutory and constitutional 

provisions that defendants allegedly violated. It too is timebarred, except for conduct that occurred after August 2, 2010. 

The allegations in the second amended complaint of post-August 

2010 conduct are inadequate to state a cause of action under the 

NJCRA.

Falat asserted no claim whatsoever for relief in Counts Four 

and Five of the amended complaint, yet he is included in Count 

Three of the second amended complaint. Having never been asserted 
20 A-2479-15T1

before July 2015, Falat's claims under the NJCRA are certainly 

time-barred.

C.

The one exception to this limitations analysis is plaintiffs' 

claim for malicious prosecution, asserted under the common law 

(Count Eleven of the amended complaint and Count Seven in the 

second amended complaint), or, as to Trout and Russo, under the 

NJCRA (Counts Four and Five of the amended complaint and Count 

Three of the second amended complaint). This is so because the 

State dismissed the indictments against plaintiffs on August 23, 

2010, i.e., within two years of the filing of plaintiffs' initial 

complaint.

In Camiolo v. State Farm Fire and Casualty Company, 334 F.3d 

345, 362-63 (3d Cir. 2003) (citation omitted), the Third Circuit 

explained the elements of malicious prosecution for purposes of § 

1983:

[A] plaintiff must show that: (1) the 

defendant initiated a criminal proceeding; (2) 

the criminal proceeding ended in plaintiff's 

favor; (3) the proceeding was initiated 

without probable cause; (4) the defendants 

acted maliciously or for a purpose other than 

bringing the plaintiff to justice; and (5) the 

plaintiff suffered deprivation of liberty 

consistent with the concept of seizure as a 

consequence of a legal proceeding.
21 A-2479-15T1

"[F]iling criminal charges without probable cause . . . is a 

constitutional violation actionable under section 1983." Kirk v. 

Newark, 109 N.J. 173, 185 (1988).

Plaintiffs concede, however, that "[m]alicious prosecution 

under New Jersey law has developed through case law, [and] it is 

not a constitutional claim as it is under federal law." As a 

result, Trout's and Russo's NJCRA claims in the amended complaint 

were properly dismissed and could not be legally salvaged by the 

second amended complaint.

Plaintiffs alleged all defendants committed the common law 

tort of malicious prosecution (Count Eleven of the amended 

complaint; Count Seven of the second amended complaint). Our 

Supreme Court has explained:

In order to establish a claim for malicious 

prosecution, plaintiff must prove (1) that the 

criminal action was instituted by the 

defendant against the plaintiff, (2) that it 

was actuated by malice, (3) that there was an 

absence of probable cause for the proceeding, 

and (4) that it was terminated favorably to 

the plaintiff.

[Helmy v. City of Jersey City, 178 N.J. 183, 

190 (2003) (citing Lind v. Schmid, 67 N.J. 

255, 262 (1975); JEM Marketing, LLC v. 

Cellular Telecomm. Indus. Ass'n, 308 N.J. 

Super. 160, 172 (App. Div. 1998)).]

"Since a suit for malicious prosecution must await a favorable 

termination of the criminal proceeding, the statute of limitations 
22 A-2479-15T1

does not begin until such termination." Muller Fuel Oil Co. v. 

Ins. Co. of N. Am., 95 N.J. Super. 564, 577 (App. Div. 1967). The 

dismissal of plaintiffs' indictments were favorable outcomes that 

did not occur until August 23, 2010, i.e., within two years of the 

filing of the amended complaint. The malicious prosecution count 

was therefore timely. We turn our attention to the other elements 

of the tort, the absence of any of which would be fatal to 

plaintiffs' claim. LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) 

(citations omitted).

Plaintiffs contend the amended complaint fairly sets forth a 

pattern of words and deeds by which the County, County Defendants 

and DeSapio initiated the criminal investigation resulting in the 

indictments. They allege that as to the HCPO defendants, Rowe was 

intimately involved in both the investigation and grand jury 

presentation, and DeFillipis assisted in arresting Falat prior to 

the return of the indictment.

The County and County Defendants argue the pleadings fail to 

allege facts sufficient to demonstrate as a matter of law that 

they initiated the criminal proceedings, and also contend the 

HCPO's independent investigation and presentation to the grand 

jury were "intervening and independent acts of law enforcement 

authorities" that "insulate" them. Seidel v. Greenberg, 108 N.J. 

Super. 248, 264 (Ch. Div. 1969). DeSapio contends that the 
23 A-2479-15T1

complaint only alleged he provided information as requested to the 

HCPO and that even if true, those allegations are insufficient as 

a matter of law to prove he initiated the criminal proceedings.

The HCPO defendants argue plaintiffs failed to plead 

sufficient facts demonstrating they initiated the criminal 

proceedings and acted with malice and without probable cause. They 

also contend plaintiffs failed to comply with the Tort Claims Act 

(TCA), N.J.S.A. 59:1-1 to 12-3, by providing timely notice of 

their claim.

In her written decision, Judge Hochberg reviewed the factual 

allegations in plaintiffs' amended complaint supporting their 

claim that the County Defendants or DeSapio "initiated" criminal 

proceedings that led to the indictments and concluded they were 

insufficient as a matter of law. We agree with her analysis.

Plaintiffs need not allege one of the County Defendants or 

DeSapio actually signed a criminal complaint against them, but the 

first element of the tort fails "when [a] defendant merely approves 

or silently acquiesces in the acts of another." Epperson v. WalMart Stores, Inc., 373 N.J. Super. 522, 531 (App. Div. 2004). 

However, a plaintiff may successfully establish the first element 

"by proof that defendant took 'some active part in instigating or 

encouraging the prosecution' or 'advis[ing] or assist[ing] another 

person to begin the proceeding, [or by] ratif[ying] it when it is 
24 A-2479-15T1

begun in defendant's behalf, or [by] tak[ing] any active part in 

directing or aiding the conduct of the case.'" Ibid. (quoting 

Prosser and Keeton, The Law of Torts § 119 at 872 (5th ed., 1984)); 

see also Seidel, 108 N.J. Super. at 257 (the tort requires 

"affirmative action by way of advice, encouragement, pressure, 

etc., in the institution, or causing the institution, of the 

prosecution or in affirmatively encouraging its continuance after 

it has been instituted"). The defendant in the malicious 

prosecution case must be "the proximate and efficient cause of 

maliciously putting the law in motion." Seidel, 108 N.J. Super. 

at 258 (quoting 54 C.J.S. Malicious Prosecution § 14 at 966); see 

also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 399 

(2009) (noting prosecutor's "separate, independent determination 

of whether to submit the case to the grand jury and, if so, what 

witnesses would be called before it" was independent of alleged 

tortfeasors' conduct).

Plaintiffs do not allege the information provided by DeSapio 

and the County Defendants to the HCPO was false. Beyond general 

claims of interference with Trout's and Russo's operation of the 

HCSO, the amended complaint specifically alleged only that DeSapio 

and the County Defendants corresponded with the HCPO regarding 

their complaints, provided an "illegally taken" email from Russo's 

computer and leaked information to the local newspaper. The second 
25 A-2479-15T1

amended complaint added little else regarding how DeSapio and the 

County Defendants initiated the criminal charges, a required 

element of the tort of malicious prosecution.

More importantly, whatever information was supplied, 

plaintiffs do not dispute — in fact they highlight — the actions 

of the prosecutor and the HCPO defendants that led to their 

ultimate arrest or prosecution. In Myrick v. Resorts International 

Casino & Hotel, 319 N.J. Super. 556, 559-60 (App. Div. 1999), the 

plaintiff alleged the defendant casino, her employer, initiated a 

malicious prosecution by reporting her innocent mistaken cashing 

of another employee's paycheck to the Division of Gaming 

Enforcement (DGE), which in turn caused the plaintiff's arrest on 

criminal charges. Ultimately, those charges were administratively 

dismissed. Id. at 562.

In affirming the motion judge's grant of summary judgment, 

we concluded the casino "did not institute the prosecution of the 

defendant." Id. at 563. We cited MacLaughlin v. Lehigh Valley 

R.R. Co., 93 N.J.L. 263 (Sup. Ct. 1919), which "held that a company 

reporting suspected criminal activity to the authorities cannot 

be liable for malicious prosecution when the authorities decide 

to prosecute the suspected criminals." Id. at 263-64. Although 

the casino called the DGE to investigate the bank's inquiry 

regarding the check, we concluded it "did not 'put the [criminal] 
26 A-2479-15T1

proceedings in motion.'" Id. at 564-65 (quoting Lind, 67 N.J. at 

263).

We applied a similar analysis to the plaintiff's claims 

against the bank that notified the casino. Id. at 566-67. We 

reasoned, "the casino defendants cannot be considered to have put 

the law in motion. Certainly, then, the bank defendants, who are 

one step removed from the casino defendants, could not be 

considered to have done so either." Id. at 567. Here, the 

allegations in the amended complaint and the second amended 

complaint fail to state a cause of action against the County 

Defendants and DeSapio for common law malicious prosecution.

In her written decision dismissing plaintiffs' federal § 1983 

cause of action premised on malicious prosecution, Judge Hochberg 

concluded the indictments "were prima facie evidence of probable 

cause to prosecute," and the "presumption of [grand jury 

regularity] will only be overcome by evidence that the presentment 

was procured by fraud perjury or other corrupt means." (Citations 

omitted). She concluded the amended complaint, which never 

asserted the evidence provided to the grand jury was false, and 

only stated in conclusory terms there was a lack of probable cause 

supporting the indictments, was insufficient under federal 

pleading standards.
27 A-2479-15T1

Our Court has said, "[a]lthough a grand jury indictment is 

prima facie evidence of probable cause to prosecute, when the 

facts underlying it are disputed, the issue must be resolved by 

the jury." Helmy, 178 N.J. at 191 (citing Zalewski v. Gallagher, 

150 N.J. Super. 360, 367-68 (App. Div. 1977). However,

[t]he fact of a favorable termination sheds 

no light on the existence of probable cause 

at the time of the initial complaint; the 

burden remains on the plaintiff to demonstrate 

by independent proof that the criminal 

complaint was filed without probable cause.

[Campione v. Adamar of New Jersey, Inc., 302 

N.J. Super. 99, 120-21, (App. Div. 1997) 

(citation omitted), aff'd as mod., 155 N.J. 

245 (1998).]

"Particularly, '[t]he plaintiff must establish a negative, namely, 

that probable cause did not exist.'" Brunson, 199 N.J. at 394 

(quoting Lind, 67 N.J. at 263). Additionally, a plaintiff must 

demonstrate the defendant's actions were actuated by malice, i.e., 

the "intentional doing of a wrongful act without just cause or 

excuse." Id. at 395 (citations omitted).

Here, the malicious prosecution count in the amended 

complaint asserted few facts regarding the specific activities of 

the HCPO Defendants that demonstrated a lack of probable cause or 

that their actions were actuated by malice. Most of the 

allegations were regarding the County Defendants and DeSapio.
28 A-2479-15T1

As noted, the amended complaint and the second amended 

complaint stated in conclusory language that there was no probable 

cause supporting the indictments. The DAG's August 23, 2010 letter 

that led to the dismissal never used the phrase "lack of probable 

cause," and most of the letter addressed the faulty legal theories 

underpinning the indictment. The second amended complaint alleged 

several additional facts regarding the HCPO Defendants' specific 

conduct, but it never asserted that Rowe or DeFillipis acted 

without just cause or excuse.

As a result, we conclude that the common law malicious 

prosecution counts in the amended and second amended complaints 

were properly dismissed.

Affirmed.