SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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MARCO ROVELO , Plaintiff

- Appellant,

v. TOWNSHIP OF NORTH BERGEN and ROBERT DOWD, Defendants

- Respondents.

_____________________________

Argued July 13, 2021

– Decided August 3, 2021 Before Judges Hoffman and Currier. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

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- 19. Patrick P. Toscano, Jr. argued the cause for appellant (The Toscano Law Firm , attorneys; Patrick P. Toscano, Jr., on the briefs).
Drew D. Krause argued the cause for respondent Township of North Bergen (Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; Drew D. Krause, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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- 19 Michele L. DeLuca argue d the cause for respondent Robert Dowd (Potters & Della Pietra, LLP, attorneys; Gary Potters and Michele L. DeLuca, on the brief).
P ER CURIAM Plaintiff Marco Rovelo, a lieutenant with the North Bergen Police Department (NBPD), appeals from the Law Divi sion order dismissing plaintiff' s complaint against defendants Township of North Bergen (North Bergen) and NBPD Police Chief Robert Dow d for failure to state a claim, pursuant to Rule
4:6

- 2(e). We reverse and remand.
I. Plaintiff claims defendants violated his constitutional and civil rights by failing to promote him to the rank of ca ptain. T he NBPD hired plaintiff in 2000, after the N AACP sued North Bergen for failing to hire minority police officers. In May 2016, plaintiff, a lieutenant at the time, took the New Jersey Civil Service promotional examination. Plaintiff claims his results on the examination earned him the top spot on t he NBPD’s promotional list. Defendants dispute this claim, asserting plaintiff was always ranked as second in line for promotion. In February 2018, plaintiff' s handling of an attempted murder investigation led to an Internal Affairs investigation into his conduct. After3 A

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finding plaintiff committed violations of NBPD guidelines and the New Jersey Civil Service Rules and Regulations, Internal Affairs brought seven administrative charges against plaintiff. To resolve these disciplinary issues, plaintif f entered into a settlement agreement, in lieu of a departmental hearing, the terms of which were memorialized in a Release and Settlement Agreement (the Settlement Agreement) on August 22, 2018. As part of the Settlement Agreement, plaintiff acknowledged that he was guilty of the charges set forth in the Final Notice of Disciplinary Action, voluntarily relinquished his right to a departmental hearing, and received a fifteen

- day suspension. The Settlem ent Agreement also contained a " com plete release" wher eby plaintiff gave up any and all claims and rights that he "has or may have" again st North Bergen, or any of its " officials,
officers , representatives or employees." After executing the Settlement Agr eement, plaintiff expected to receive a
pr omotion to t he rank of captain. He believed there was a captain position vacant, and he was first in line for promotion. Defendants disagree and contend that no vacant captain position existed at the time. This dispute arose because a captain in the NBPD faced term ination due to an on going disciplinary action, which was delay ed due to a lengthy di scovery process and the captain' s change4 A

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in counsel. Ultimately, the charges against the captain were not sustained and the captain was not terminated. Plaintiff alleges Chief Dowd knowingly manipulated the process to enable the captain, allegedly a close friend of Chief Dowd, to retire instead of being terminat ed. By the time of the captain's retirement, plaintiff' s promotional eligibility had expired. After his eligibility expired, plaintiff voluntarily opted not to take the next promotional examination. Plaintiff claims shortly after his eligibility period expired, Chief Dowd made it known that he planned on p romoting four lieutenants and adding new positions. Furthermore, plaintiff a lleges that Chief Dowd " made it widely known within the NBPD" that he disliked plaintiff. Plaintiff also a sserts Chief Dowd runs the NBPD in a "quasi

- tyrannical fashion" and abus es the Internal Affairs and promotional processes to render preferential treatment to select officers. Moreover, plaintiff claims North Bergen has permitted and promoted Chief Dowd' s illegal activities for years, while "allowing vacancies to illogically r emain unfilled. " On June 7, 2019, plaintiff filed a complaint against defendants, asserting his civil rights were violated when he was not promoted to captain. After defendants moved to dismiss the complaint for failure to state a claim , pursuant5 A

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to Ru le 4:6

- 2(e), plaintiff voluntarily dismissed his complaint on September 13, 2019. On September 17, 2019, plaintiff filed a new complaint against defendants, alleging violations under the New Jersey Civil Rights Act (NJCRA) and the New Jersey constitutio n. Again, defendants moved to dismiss the complaint for failure to state a claim , pursuant to Rule 4:6

- 2(e). In April 2020, the motion judge granted defendant' s motion, conclud ing that plaintiff " failed to state a claim for which relief can be granted. " Additionally , the court dismissed plaintiff' s complaint wi th prejudice,
determin ing that plaintiff' s complaint " cannot be remedied by amendment. " On appeal, plaintiff argues the trial court improperly dismissed his complaint with prejudice without allow ing him the opportunity to cure any deficiencies through amendment. We agree.
II. Rule 4:6

- 2(e) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted[.]" This r ule tests "the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart

Morristown v. Sharp Elec. Cor p. , 116 N.J. 739, 746 (1989). On a motion to dismiss, a plaintiff need not prove the case, but need only "'make allegations6 A

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which, if proven, would constitute a valid cause of action.'" Kieffer v. High Point Ins. Co. , 422 N.J. Super. 38, 43 (App. Div. 20 11) (quoting Leon v. Rite Aid Corp. , 340 N.J. Super. 462, 472 (App. Div. 2001)). On such a motion, plaintiff is entitled to "every reasonable inference of fact." Printing Mart , 116 N.J. at 746 (citing Indep. Dairy Workers Union v. Milk Drivers Local 680 , 23 N.J. 85, 89 (1956)). A reviewing court must "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if

neces sary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem. Park , 43 N.J. Super. 244, 252 (App. Div. 1957)). This review should be "at once painstaking and undertaken with a generous and hospitable approach." Ibid. A motion to dismiss should only be gran ted in "'the rarest of instances.'" Kieffer , 422 N.J. Super. at 43 (quoting Printing Mart , 116 N.J. at 771

- 72). Only where "'even a generous reading of the allegations does not reveal a legal basis for recovery' " should the motion be granted. Ibid. (quot ing Edwards v. Prudential Prop. & Cas.
Co. , 357 N.J. Super. 196, 202 (App. Div. 2003)). Plaintiff’s complaint alleged civil rights and constitutional violations. To survive a motion to dismiss, plaintiff’s complaint must contain allegations7 A

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which, if pro ven, would constitute a valid civil rights or constitutional cause of action. See Kieffer , 422 N.J. Super. at 43. As the motion judge recognized, a plain tiff alleging NJCRA violations

" must prove that (1) ' the Con stitution or laws of this State' confer red on them a substantive right; (2) the [public official] deprived them of that right; and (3)
th e [public official] was acting 'under the color of the law' when he did so." Tumpson v. Farina , 218 N.J. 450, 473 (2014). Here, the motion court determine d that plaintiff failed to state a claim upon which relief can be granted; in addition, the court dismissed plaintiff' s complaint with prejudice, concluding the complaint " cannot be remedied by amendment. " While we find no basis to disturb the court's determination that plaintiff 's complaint failed to state a claim upon which relief can be granted , we disagree with the decision to dismiss with prejudice. Based upon our review, the motion court did not "search the co mplaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned " from the factual allegations in plaintiff's complaint. Printing Mart , 116 N.J. at 746

. As previously noted, m otions to dismiss " should be granted only in rare instances an d ordinarily without prejudice." Smith v. SBC Communications,
Inc ., 178 N .J. 265, 282 (2004). This case does not present the rare instance8 A

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warranting a dismissal with prejudice. T he motion court's opinion failed to convince us that plaintiff' s complaint cannot potentially be remedied by amendment. Plaintiff should have the opportunity to attempt to cure the deficiencies in his complaint. Rather than dismissing plaintiff's complaint with prejudice , the court should have granted plaintiff leave to amend hi s pleading. Accordingly, we vacate the dismissal of plaintiff's complaint , and remand to permit plaintiff the opportunity to amend his pleading. Any arguments not specifically addressed lack sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Reversed and remanded

. We do not retain jurisdiction.