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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

J.G.,

Plaintiff,

v.

C.M.,

Defendant.

C.M.,

 

 Third-Party Plaintiff,

 v.

V.G., N.G., and Jane Doe,

 Third-Party Defendants.

No. 11-2887 (WJM)

OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Defendant C.M. brings this motion for summary judgment pursuant to Federal 

Rule of Civil Procedure 56. For the reasons set forth below, the motion is DENIED.

I. BACKGROUND

A. Allegations of Abuse

Plaintiff J.G. was born on January 28, 1988. (C.M.’s Undisputed Statement 

of Facts (“C.M.’s SOF”) at ¶ 1) J.G. alleges that his older cousin, C.M., sexually 

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abused him when J.G. was between the ages seven and eleven. (Id.) C.M. was born 

on November 23, 1979. (C.M.’s SOF at ¶ 4) For three summers, beginning the 

summer after J.G. finished first grade, J.G.’s mother sent J.G. to make overnight 

visits to the Maryland home of J.G.’s aunt, who is the mother of C.M. (Deposition 

of J.G. at 71:17-72:2; 89:7-13, 91:12-19, 94:17-20) During these summers, J.G. and 

C.M. engaged in contact that J.G. alleges was sexually abusive. (See C.M.’s SOF at 

¶ ¶ 11-20; Complaint at ¶ ¶ 5-19) The alleged sexual abuse occurred while J.G. and 

C.M. wrestled or “spooned” or when C.M. gave J.G. “wedgies.” (See Deposition of 

J.G. at 107:23-112:15, 121:18-19, 139:21-140:13)

At his deposition, J.G. described one particular incident in the second or third 

summer that stuck out in his mind. C.M. would place J.G. in a “choke lock” between 

C.M.’s legs, forcing J.G. to suck or bite C.M.’s thigh and groin area in order to be 

released. (Deposition of J.G. at 139:23-25, 141:1-17, Declaration of Andrew 

Macklin, Esq., (“Macklin Decl.”) Exhibit D) J.G. also recalled that on at least one 

occasion, C.M. placed his finger inside J.G.’s anus. (Deposition of J.G. at 144:24-

145:10) J.G. also recalled that C.M. had an erection once while wrestling with J.G. 

(Deposition of J.G. at 145:22-146:4)

J.G. admitted that, at first, he did not think of the contact as inappropriate. 

However, he elaborated, “There was a point where the – I guess the physical contact 

between us got to a point that I didn’t really like it and I’m not sure if that exact point 

was the second summer or the third summer, but it was during one of those two times 

at his house where things happened that I started not to like it, not to have fun with 

it.” (Deposition of J.G. at 133:18-24) J.G. noted, for example that C.M. would 

squeeze J.G.’s head or chest between his legs to the point where it was hard for J.G.

to breathe. (Deposition of J.G. at 134:10-12, 135:11-12) J.G. recalled times when 

C.M. asked J.G. to touch C.M.’s penis. (Deposition of J.G. at 147:1-2) When asked 

if C.M. masturbated in front of J.G., J.G. responded, “He touched himself 

sometimes.” (Deposition of J.G. at 146:24-25)

At his deposition, J.G. admitted that he engaged in similar kinds of horseplay 

with his friends, which he did not consider abusive. He stated that he felt the 

horseplay with C.M. was sexual abuse because C.M. was bigger, made J.G. feel 

submissive, and J.G. lacked control over himself in his encounters with C.M. 

(Deposition of J.G. at 275:5-276:25)

Beginning around 4th grade, J.G. began to experience “bad feelings” such as 

anxiety and fear of adult men. (Deposition of J.G. at 178:11-179:17) Plaintiff 

experienced gastrointestinal symptoms, difficulty breathing, and crying from these 

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feelings. (Deposition of J.G. at 179:10-24, 183:4-9) The feelings could be triggered 

for no apparent reason, but seeing something violent, or a sex abuse movie would 

make these feelings very hard to control. (Deposition of J.G. at 179:19-24) In the 

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th grade, he attempted to commit suicide because he wanted to escape the feelings. 

(Deposition of J.G. at 187:24-188:23)

J.G. attended Yale University. (C.M.’s SOF at ¶ 26) He joined a secret 

society called Berzelius. (Ibid.) While Berzelius was gathered in a “tomb,” another 

member gave his biography, which included a description of sexual abuse he 

suffered as a minor. (Id. at ¶ 27) J.G. was viscerally affected by the story of his 

classmate’s rape. (C.M.’s SOF at ¶ 28) That night, C.M. started thinking about the 

wrestling and inappropriate touching with C.M. (Deposition of J.G. at 274:17-4) 

Plaintiff reported to his expert, Dr. Mendell, that he called his mother that night. 

According to Dr. Mendell’s notes, J.G. told his mother about the rape of his 

classmate. (Dr. Mendell’s notes of J.G., pg. 1, Macklin Decl., Exhibit J) J.G. 

reported that his mother asked him, “Did it happen to you?” (Ibid.) J.G. reported 

that he told his mother, “yes” and that it was C.M. (Ibid.)

B. Procedural History

On May 19, 2011, J.G. filed the original one-count Complaint alleging sexual 

abuse in violation of N.J.S.A. 2A:61B-1. On July 7, 2011, C.M. filed a motion to 

dismiss on the grounds that New Jersey’s conflict of law principles directed the court 

to apply Maryland law, not New Jersey law, to this case. While C.M.’s motion to 

dismiss was still pending, Plaintiff filed an Amended Complaint on July 14, 2011. 

The Amended Complaint added causes of action for assault, battery, intentional 

infliction of emotional distress, and negligence torts under both New Jersey and 

Maryland law. The court agreed with the argument in C.M.’s pending motion that 

New Jersey’s conflict of law principles directed the court to apply Maryland law. 

The court therefore dismissed all the New Jersey causes of action in J.G.’s Amended 

Complaint, leaving J.G. with only his Maryland causes of action. 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the 

pleadings, the discovery [including, depositions, answers to interrogatories, and 

admissions on file] and disclosure materials on file, and any affidavits show that 

there is no genuine issue as to any material fact and that the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 

477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 

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(3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the 

non-moving party, and is material if it will affect the outcome of the trial under 

governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). The court considers all evidence and inferences drawn therefrom in the light 

most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d 

Cir. 2007).

III. DISCUSSION

A. Statute of Limitations

The core issue is whether J.G. has brought forth sufficient evidence from 

which a reasonable jury could conclude that C.M. committed “sexual abuse” under 

Maryland law. If the Plaintiff has failed to present evidence from which a rational 

jury could conclude that “sexual abuse” had occurred, the statute of limitations bars 

J.G.’s claims. The court finds that J.G. has presented evidence of sexual abuse.

Maryland law provides a general three-year statute of limitations from accrual 

of a cause of action unless otherwise specified. Md. Code Ann., Cts. & Jud. Proc. § 

5-101. The general three year statute applies to J.G.’s claims for battery, intentional 

infliction of emotional distress, and negligence. See Ford v. Douglas, 799 A.2d 488, 

450-51 (Md. Ct. Spec. App. 2002) (battery), Knickman v. Prince George’s County, 

187 F. Supp.2d 559, 563-64 (D.Md. 2002) (intentional infliction of emotional 

distress), Poole v. Coakley & Williams Const., Inc., 31 A.3d 212, 234-39 (Md. 2011) 

(negligence). Maryland has a one-year statute of limitations for assault. See Md. 

Code Ann., Cts. & Jud. Proc. § 5-105.

Maryland’s general rule is that the statutory period begins to run upon the 

occurrence of the alleged wrong, unless a specific legislative or judicial exception 

applies. See Jenkins v. Karlton, 620 A.2d 894, 896 (Md. 1993). In 2003, the 

Maryland legislature enacted a new rule expressly extending the statutory period to 

7 years in cases of sexual abuse a victim suffers as a minor. Doe v. Roe, 20 A.3d 

787, 788 (Md. 2011). The rule states, “An action for damages arising out of an 

alleged incident or incidents of sexual abuse that occurred while the victim was a 

minor shall be filed within 7 years of the date that the victim attained the age of 

majority.” Md. Code Ann., Cts. & Jud. Proc. § 5-117(b). J.G. attained the age of 

majority on January 28, 2006. He filed this Complaint in 2011. Therefore, if he was 

a victim of sexual abuse, he has filed timely; if not, the statute of limitations bars the 

Complaint.

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Section 5-117(a) provides that the definition of “sexual abuse” extending the 

statute of limitations to seven years is the definition found in § 5-701 of Maryland’s 

Family Law Article. Section 5-701 defines “sexual abuse” as any “act that involves 

sexual molestation or exploitation of a child by a parent or other person who has 

permanent or temporary care or custody or responsibility for supervision of a child,

or by any household or family member.” Md. Code Ann., Fam. Law § 5-701(x)(1). 

Section 5-701 goes on to specify that “sexual abuse” includes “sexual offense in any 

degree.” Md. Code Ann., Fam. Law § 5-701(x)(2). 

Under Maryland law, a third degree sexual offense includes “sexual contact” 

with a person under the age of 14 where the person performing the sexual contact is 

at least 4 years older than the victim. Md. Code. Ann, Crim. Law § 3-307. “Sexual 

contact,” as used in § 3-307, means “an intentional touching of the victim’s or actor’s 

genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse 

of either party.” Md. Code Ann., Crim. Law § 3-301.

In this case, there is evidence that sexual abuse meeting the definition of 

Section 5-701, or in the form of a third degree sexual offense occurred. The alleged 

abuse all took place before J.G. was 14, and C.M. was more than four years older 

than J.G. There is ample evidence of sexual contact. For example, J.G. remembered 

an incident where C.M. put his finger in J.G.’s anus. He recalled C.M. making him 

bite C.M.’s groin. J.G. recalled C.M. asking J.G. to touch C.M.’s penis. J.G. recalled 

being the victim of “wedgies.”

There is evidence that some of the sexual contact that occurred was for the 

purposes of sexual exploitation, gratification, or abuse. J.G. describes the sexual 

contact as exploitative due to C.M.’s power over J.G. The sexual contact was 

accompanied by acts that a rational jury could conclude were abusive, like choking 

J.G. The proximity of the sexual contact with non-sexual but abusive contact could 

lead a rational jury to believe that the underlying purpose of the sexual contact was 

exploitative. There was also evidence that C.M. was sexually gratified by the 

contact. J.G. once saw C.M. develop an erection during one of the suspect wrestling 

matches, and J.G. claims C.M. touched himself, possibly to masturbate, in front of 

J.G.

The Maryland law excludes from “sexual contact” an act that is a “common 

expression of familiar or friendly affection.” Md. Code Ann., Crim. Law § 3-301. 

C.M. characterizes his contact with J.G. as such friendly and familiar expressions of 

affection. C.M. argues that J.G. admitted to engaging in similar types of wrestling 

and “spooning” with his friends and that J.G. did not find this behavior sexually 

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abusive. The arguments are not convincing. C.M.’s acts at issue are ones a 

reasonable jury could conclude were not expressions of affection in and of 

themselves. These include giving J.G. wedgies, physically coercing J.G. to bite

C.M. around the groin, placing a finger in J.G.’s anus, and asking J.G. to touch 

C.M.’s penis. Moreover, the fact that these suspicious acts were performed by an 

older, bigger, and trusted family member against a younger victim, could lead a 

rational jury to conclude that C.M.’s acts crossed the line from expressions of 

familiar affection to sexual abuse.

Because there is sufficient evidence of “sexual abuse,” the seven year statute 

of limitations applies, and J.G.’s Complaint was timely filed. 

B. Sufficiency of Memory as Evidence

The direct evidence of abuse comes entirely from J.G.’s memory. C.M.

argues that J.G.’s memories of the sexual abuse are not sufficient as evidence from 

which a rational jury could find liability. C.M. relies on an argument that J.G. has 

made certain statements from which a rational jury could conclude that he has no 

actual memory of egregious sexual abuse. These include statements that appear in 

the notes of his treating psychologists and experts. The statements express 

uncertainty as to whether he might have been raped, uncertainty about the 

circumstances under which he was digitally penetrated, and the fuzziness of certain 

memories. (See C.M.’s Reply Brief at 1-3)

The blurry edges of J.G.’s memory do not warrant summary judgment. The 

deposition testimony contains ample evidence from which a rational jury could 

conclude that J.G. remembers instances of sexual abuse besides rape and digital 

penetration. These include being coerced to bite C.M.’s groin, being asked to touch 

C.M.’s penis, and being the victim of wedgies.

IV. CONCLUSION

Plaintiff has timely filed his Complaint and has produced sufficient evidence 

from which a reasonable jury could find in his favor. For these reasons, C.M.’s 

motion for summary judgment is denied.

/s/ William J. Martini

 _________________________________ 

 WILLIAM J. MARTINI, U.S.D.J.

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Date: April 23, 2014

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