April 30th, 2014 Transcripts El Aemer El Mujaddid v. Lynn A. Wehling, City of Vineland, Cumberland County, et. al.,

Judge Millenky: Next, is the notice of motion to file umm a late tort claim, and that’s in the matter of El Mujaddid v. City of Vineland, it’s Docket L4550-13 we’ll take that next,

N.J. D.A.G. Kelly: Your honor I’m here on a different motion on the same case, should i take council seat, deal with that specific motion your honor,

Judge Millenky: umm your here on the motion to dismiss the complaints,

D.A.G. Kelly: Correct Yes,

Judge Millenky: umm, why don’t we handle this separately then we’ll move onto the next matter,  I’m gonna just try to keep things segmented, so that were talking about one thing at a time, this is the matter of El Mujaddid v. City of Vineland, Docket L-4550-13, this is a motion by the plaintiff, umm and he seeks to, if i understand the, framing of this matter, reopen the matter and have leave to file a late notice of tort claim, there other motions pending in this case, but were just dealing with this Motion for late filing of a tort claim, so counsel appearances on that matter,

Mr. Baker: Ahh Good Afternoon, umm, thank you, Theodore E. Baker, Cumberland County Counsel on behalf of the Cumberland County related Defendants,

Judge Millenky: Sir, El Mujaddid: Plaintiff El Aemer El Mujaddid Pro Se Litigant notice of appearance,

Judge Millenky: Thank you and, this is a matter that arises from as best I understand it an arrest that occurred on April 10th of 2000 and 10, and it seems to me the significant events would be the fact that this was ummm, something that resulted in an Indictment is that correct?, in the superior court then following that, a remand,

Mr. Baker: umm… yes that’s what i was going to say, it was remanded to the Vineland municipal court in October,

Judge Millenky: it was remanded to the Vineland municipal court September 24, 2012, and then there was a dismissal of all charges on June 20th 2013, the claims that Mr. Mujaddid brings against the…. Cumberland County defendants as oppose to the municipal court defendants and the Cumberland county defendants I think i can fairly frame as being those defendants who are related to the Cumberland county prosecutor or to the Vineland, let me change that again the Cumberland county umm, prosecutors office, correct sir,

Baker: Yes, Your honor part of the problem is that we don’t have a newly filed complaint that articulates exactly which ones, however i would fairly characterize the complaint thus far as i perceive it to include, claims against the Cumberland county prosecutor’s office, the Cumberland county, perhaps, and uh, the agents, servants or employees, of the Cumberland county prosecutor’s office, some of the names of whom do appear in the amended complaint,

Judge Millenky: okay, and, that amended complaint has been filed i believe it was filed  pursuant to leave of the court granted, so in this case the amended complaint is appropriately before the court, and the claims that are been identified by the plaintiff and Mr. Mujaddid you can correct me if I’m wrong, are the following: fraud, Willful Misconduct, Intentional and Gross Negligence, Negligence and intent to deceive, Breach of Duty, Intentional Infliction of Emotional Distress, Assault, Battery, False Imprisonment, Abuse of Process, Malicious Prosecution, Intentional Spoliation of evidence or negligent spoliation of evidence, fraudulent concealment, there appear to be some contract law claims as well,  umm, there may, all,  those would be that claims that in some way attach to the tort concept, there are certainly to appear to be constitutional claims that are alleged, in terms of the Fourth, the Eighth and the Fourteenth Amendment,

El Mujaddid: and the Thirteenth, for the Record

Judge Millenky: the Thirteenth Amendment as well, okay?…and so here were just talking about the tort claims and let me ask Mr. Baker first, Mr. Baker for purposes of triggering the notice of claim what is the operative date in your mind

Mr. Baker: ahh, your honor, i think the operative date, uhh is, it has to be, the date as to which the date, the search and seizure took place, that, that is the date on which, the plaintiff is alleging, that some of the uhh, breach of duties occur, Now, what we have not gotten to i think, is whether or not the dissinvolement of the Cumberland county prosecutor’s office, occurred later and it did, a little bit later than that, in September or October that year, when they remanded the case, but otherwise all of the operative acts occurred on April, and I’m, um, i am a little unclear, because I’ve see either the dates transposed or the dates different ummm, in various places, April 21, 2010, or April 10, 2010

Judge Millenky: But certainly in April, 2010 Baker: that’s right your honor, , and the prosecutor’s office remands this to the Municipal court or ask the Superior Court to remand it on 9-24-2012,

Mr. Baker: They did, but i have not submitted that document to the court as yet, i just retrieved the actual promis gavel umm information with a certification which would come later, but yes it’s in that time frame,

Judge: so that’s two years later,

Baker: Yes, no, no, not two years later, that’s six months after April at the latest,  Judge: I had it was, it occurred in 2012…

El Mujaddid: Yes, for the record judge, that’s an issue of a conflict, i don’t know if Vineland’s counsel will further explain, but, ummm, according to the City of Vineland, they didn’t receive the matter until 2012, but the information I got from the Cumberland defendants was that the matter was sent to Vineland within six months, after the April 2010 arrest, so there is a clear conflict between those parties as well regarding when they actually received the matter, but municipal prosecution against me actually didn’t take effect, until 2012,

Judge Millenky: then the charges were dis..And that was September 2012,

El Mujaddid: Yes

Judge Millenky: and then the charges were ultimately dismissed in June 2013,

El Mujaddid: Yes.

Judge Millenky: so as to the tort claims here, and we’re not talking about the constitutional claims the court is satisfied that constitutional claims are not something that is umm contemplated as being within the meaning of the tort claims act, so with respect to these matters, as to the prosecutor’s office your position would be that at the very latest, the prosecutor’s, prosecutor, county prosecutor and its employees, agents and servants, acted within six months of the arrest, so somewhere, I guess October, or November of 2010,…

Mr. Baker: I would agree, that the latest time frame, the involvement of the prosecutor’s office ends as of about the end of October,

Judge Millenky: so you would say that 90 days after that at the very latest, Baker: that’s correct your honor Judge: would be the time for filing of a notice of tort claim and if there were exceptional circumstances up to one year, but the court certainly couldn’t go beyond one year and that in the final analysis would take us too October at the latest of 2011 without being more precise in terms of a date within the month, would that be your contemplated argument?

Mr. Baker: Yes, irrespective of the time frame during which the involvement of the prosecutor’s office occurred, at the latest for the benefit of the plaintiff in this motion, I’m saying November 1, 2010, so that the 90 days should of started around then, the year a, extraordinary filing period, a year thereafter, but beyond that i think it’s a jurisdictional question, as to whether it can even be granted as to those claims, the constitutional claims require no tort claim notice, I’m not challenging that,

Judge Millenky: thank you, alright, Mr. Mujaddid, the problem then arises as to the prosecutor’s office, from your perspective as to these tort claims, as to the authority of the court to extend beyond 90 days up to the possibility of a year within the meaning of the statute, and then i think that what the prosecutors, the prosecutor’s office is arguing is that beyond one year there is no authority on the part of the court at all, to allow a late notice of tort claim, so how would you address that?

El Mujaddid: ahh well First off umm, I don’t agree with the umm defense time in point of umm the tolling period, respectively, umm I did communicate with the defendants in regards to discovery and the defendants failed to provide that discovery infringing upon my due rights, umm additionally the equitable tolling doctrine and the spoliation and fraudulent concealment doctrine provide the court the equitable powers to extend the tolling period from the date and time of the point in question based on the fact that the defendants conduct is ongoing and it’s still ongoing uhh furthermore uh to add to the ongoing aspects

Judge Millenky: How is it ongoing?

El Mujaddid: It’s ongoing because I have submitted several OPRA request, pursuant to the OPRA Act and Common Law, and they continue to refuse to provide me with the particular discoverable materials that I need,

Judge Millenky: so whose refusing?

El Mujaddid: the, actually all of the defendant technically, but with respect to the current counsel the Cumberland county prosecutor’s office has declined to provide me with several discoverable materials that were requested from them prior to the municipal prosecutor, after the municipal prosecution, during the municipal prosecution, and once it was resolved now I’m seeking that information through this matter and OPRA and I have still been denied these materials, and that constitutes spoliation and fraudulent concealment,

Judge: Okay, I understand, sir, even if the time line was other than the umm county prosecutor would have it, in other words if in fact there was some dispute over time and the remand did not occur until sometime in 2012 , I think from your papers the remand would of occurred on or about at the latest 9-24th-12 September 24th, 2012, and that there if there is some miss communication or some other activity, nonetheless I think, from your own papers, that you would acknowledge that September 2012, was the last time that the ahh county prosecutor had any activity associated with this file,

El Mujaddid: Ahh well, I couldn’t actually agree with that because during the actual municipal prosecution, upon my discovery request to judge Kasper, Judge Kasper provided a court order to the municipal prosecution, excuse me to the municipal prosecutor, to provide me that discoverable material, she did not comply with the order, umm, additionally, it was…

Judge Millenky: that would appear to be municipal though municipal court question,

El Mujaddid: yes, yes, just bear with me for a second the, the, the relevance is, is that the municipal prosecutor asserted that she could not provide me with the materials because of the Cumberland Defendants,

El Mujaddid: so…

Judge Millenky: so when was that,

El Mujaddid: this was umm, May 2012, No 2013 excuse me, May 2013, yea,

Judge Millenky: So that in May 2013, you’re saying that the municipal prosecutor told you that they could not provide you with the discovery because it was in possession of the Cumberland defendants.

El Mujaddid: Cumberland defendants

Judge Millenky: Okay so that’s May of…. 

El Mujaddid: 2013, …yeah, May of 2013, yea,

Judge Millenky: Okay and so then, you were on notice then sir at that point let’s just assume that your timeline correctly describes the events, umm….you were on notice in may of 2013 of the failure of the Cumberland county prosecutor’s office its agents and servants to properly turnover discovery, and so if they were failing to do so, there could of been let’s assume, two courses of action that you might of follow, one is to make an applicable to the court to compel that, or two let’s assume and there may be other issues involved,  but for purposes of our discussion, lets assume its a possibility, to file a claim that sounds in tort against the prosecutor’s office, in which case you would of had to then operate from this may 2013 window, and file a notice of late tort claim or excuse me, a notice of claim in 90 days, which even if we were ending at the end of may would take you to august of 2013, and then the only mat…. way in which you could file a later claim, would be and that’s pursuant to NJSA 59:8-8 would be pursuant to 59:8-9 which provides that, there could be an extension, of that period allowing for the filing within 1 year ummm,……and you’d have to show sufficient reasons constituting extraordinary circumstances, for the fi…..the failure to file, and so certainly for example if you were incarcerated at that time, one might think that some of your resources were limited, were you incarcerated at the time sir,

El Mujaddid: Not at that time, but directly after the incident going back to April, Judge: and when and how long were you, El Mujaddid: April 2010, Judge: for how long were you incarcerated

El Mujaddid: ummmm 1 months Judge: Okay, so you were out in may of 2011, so you certainly had been out for a substantial period of time by 2013 so that you had access to resources and could address Matters,

El Mujaddid: Yea…. Right…

Judge Milleky: Okay anything else that you want to tell me sir,


El Mujaddid: Yes, in my motion it was noted that umm, in regards to the tolling period when it comes to discovery, and umm failure to comply with ministerial duties, which is, which is, pretty much umm, the basis of some of this misconduct that’s relevant, is that umm, it states as far as the case law a duty to preserve evidence, is a question of law to be determined by the court,  said duty independent from an order to preserve evidence arises when there is pending or probable litigation, knowledge by the party of existence or likelihood of litigation, forseeability or harm to the other party in other words discarding the evidence would be prejudicial, the evidence is relevant to the litigation, the spoilers level of intent whether negligent or intentional does not affect the liability rather it is a factor to be considered when determining the appropriate remedy, the New Jersey Supreme Court held that if spoliation of evidence is discovered during the course of litigation, the offended party can receive adverse inference, the jury charge in this case in chief, and still assert a separate cause of action for fraudulent concealment, it further goes on to umm suggest that the spoliation extends, allows the court to extend the tolling period, umm from what I understand from what the case law is stating, and we have a situation here, where the defendant refused to provide this evidence, and, and it’s spoliation

Judge Millenky: Okay, Sir, i understand the argument and if them,  I think that what these cases focus upon is amongst other things, the issue of when the person who may be deemed the victim of spoliation, or active concealment  learns of that event and that becomes a triggering time one is thinking in terms of discovery and then in terms of knowledge that there has been some tort committed as to them, Sir I’m going to assume for purposes of this argument, but for no other purpose that the timeline that you describe is correct that in may of 2013 you in fact learned, i don’t think i have a certification to this effect, I’ll accept the timeline for purposes of the analysis, umm learned that there was an inability on the part of the municipal prosecutor, to turn over all relevant documents to you, because the Cumberland county prosecutors retained certain relevant the documents and refused to part with them, sir at that juncture the courts evaluation would be as follows, and is as follows, that you had notice at that juncture of a failure to comply with what you might frame as certain obligations, and that in turn the failure to give to you relevant documentation constituted some sort of fraudulent activity, I recognize that there are all sorts of arguments that the relief for this type of activity is one that is available within the criminal side of the system, not civil but let’s assume that your correct here and that is civilly redress able at that juncture if it was you would as i mentioned before have had to file a notice of tort claim within 90 days because by then you certainly learned of what someone might frame as active some concealment contrary to your interest, if that was the case the court would look to see that a notice of claim had been filed within that 90 day period, it was not, the court would then and does now, examine whether or not in your moving papers you’ve described sufficient reasons constituting extraordinary reasons for the failure to file that notice within the time period that’s Prescribed by NJSA 59:8-8, the courts evaluation, is sir that you have not, while you have described the detrimental effect for you of the non disclosure of documents which you believe exist, and which may well exist I certainly don’t know you haven’t described the reasons why there would be extraordinary circumstances describing why you couldn’t have acted within the 90 day period…

El Mujaddid: Well….

Judge  Millenky: and so sir, I’ve read your papers and I understand what you’re saying and so sir, with respect to the ability of this Court to extend discovery that ability does run for up to a one year period but there has to be a description of an extraordinary circumstance and here there is not an extraordinary circumstance one has to though our court rules and comments to them described that the rule is certainly one that is very strict, someone must file a notice of tort claim in order to have redress within the meaning of the tort claim act, that is the analysis, that the court brings to this situation, the court does not find an extraordinary circumstance for the failure to file the notice of claim and for that reason sir the motion to file a late notice of tort claim is denied with respect to your constitutional claims those claims survive

El Mujaddid: Okay so, just for the record umm in Mcdade v. Sesin, which i noted on page 8  of the motion where it says sufficient reasons constituting extraordinary circumstances umm it was listed that umm owyler v township of chathem holding that unawareness of the extent of an injury cannot constitute the extraordinary circumstance which was a similar situation here it also notes that brant v. Virginia that gross negligence that amounts to constructive fraud is sufficient to establish and equitable estoppel claim and we have a situation of gross negligence because as I noted when it came to the initiation of the prosecution there were summonses that were issued to me without the compliance of the court rules and that is gross negligence, because the court rule specifically state, that after a CDR, after a Judge finds probable cause on a CDR, that is when a summons is suppose to be issued, not prior to the judge actually finding probable cause, so we have an issue of gross negligence starting from 2010,

Judge Millenky: sir I think the case law that your referring to is really describing some circumstances where were examining the events at the moment where the ability to file the tort claim is triggered and that from your description and certainly the county of Cumberland doesn’t concede this but from your description is may and the fact that you may not have been aware of the obligation to file the late notice of tort claim doesn’t alter the obligation to know the law and to comply with it and to find an exception only where there’s an extraordinary circumstances, so sir you’ve made the record i understand it the court finds that the argument that you advance doesn’t alter the decision of the court as I say your constitutional claims survive

Mr. Baker: Your honor if i can i add one thing to the record that I think would be helpful notwithstanding that Mr. uh El Mujaddid umm claims and things should be held in abeyance, one thing i do want the record to reflect is that uh he has had various pleadings going back and forth and notices uh although we didn’t know what this was about we received some correspondence in May or June i believe it was in June 2013 and attached to some of his papers in this very matter, exhibit i don’t know which one he has it marked at is my June 26th 2013 letter to him, giving him a tort claim form and telling him that if you want to pursue a claim under the tort claims act, here’s the form that was not sent back,

Mr. El Mujaddid: he did, but you know I understand what you’re saying and he’s saying, but the issue is I mean, the case law is quite clear gross negligence extends the tolling period and I’m talking about from 2010 and the incidents that occurred in 2013 Judge: okay, sir i understand the argument, i don’t perceive that, that gross negligence is something that extends the tolling period beyond the one year period in any event if you’re going back to umm the uh 2010 events which is when you assert gross negligence, but in any event that is not the negligence that is at issue here, it seems to me what your now complaining of is the failure to turn over certain documentation, okay and that’s really is where your complaint lies as to the prosecutor’s office now, so for that reason the motion to dis,, to umm have additional time to file a late notice of tort claim is denied, as particularly the case where a form was supplied to you, and so certainly you were on notice of the obligations to act in that regard if you so chose, and there would be no reason then to equitably equitably even toll the statute because sir you were aware of the need to act, in any event that would conclude the matter, having to do with the filing of the late notice, next

Mr. Baker: uh that’s the only matter I’m involved in Your honor.

Judge Millenky: Your free to go sir, and uhh …Mr. Mujaddid if I could ask you to stay where you are, and uh, we need to take just five minutes okay and then we will be right back on the record

Judge Millenky: …We’re going to give you some company, Next again in El Mujaddid v. City of Vineland Docket L4550-13 there are four motions that we’ve grouped together a motion to dismiss the plaintiffs complaint, or alternatively for a more definite statement, a summary judgment motion and a motion to dismiss the complaint umm by the state of new jersey for the state defendants, now can you give me that other one that said we had postponed.. Who represents the Superior Court, do you?

DAG Kelly: I do your honor,

Judge Millenky: so you have the Superior Court, and, ok that solves the problem i was expecting your colleague perhaps

DAG Kelly: oh ok..Understood, Judge Millenky: that clarifies things, okay this is then El Mujaddid v. the City of Vineland, appearances please,

DAG Kelly: Good morning Your Honor Daniel Kelly, Deputy Attorney General for the State of New Jersey Office of the Attorney General here on behalf of the Cumberland County Criminal Division and Rose Marie Gallagher the Criminal Division Manager

Judge Millenky: Sir again appearances for the record

El Mujaddid: Pro Se Litigant El Aemer El Mujaddid noting appearance for the record

Judge Millenky: With respect to the motions to dismiss the complaint…so it hasn’t we didn’t get it anywhere, clerk: there’s no record of it.. Counsel you can be seated sir please, in this matter it’s the same situation that i reconsidered to your colleague you apparently got or at least i think you did a response, did you from the plaintiff,

DAG Kelly: yes i did i received an opposition and essentially a cross motion for default in this case in response to our motion to dismiss we filed a reply letter brief, which received and we received a sir reply letter brief to that as well…

Judge Millenky: Mr. Mujaddid

El Mujaddid: Yes I don’t have anything I mean I’m aware something must exist because you sent a reply, umm but i don’t have anything from you sir in response to motion to dismiss the complaint, you apparently prepared something,

El Mujaddid: yeah i have them right here, they were received the motion to deny the defendant motion to dismiss and to enter order of default was filed April 11th, 2014, the motion for summary judgment was filed March 25th 2014, and then a letter, reply to the defendants, a letter was filed April 7th, 2014,

DAG Kelly: I do not believe I have the march, 25th motion for summary judgment that’s new to me, Judge: When did you file a motion for summary judgment,

El Mujaddid: Umm March 25th, 2014,

Judge Millenky: So Mr. Kelly, the Brief in support of plaintiffs Motion For Summary Judgment is something that we do have and maybe this was, did you get this, DAG Kelly: that is not something that i received as is it to the superior court defendants,

El Mujaddid: no I don’t believe i provided a copy because i didn’t receive a notice of appearance until April so i had no knowledge that he was representing the defendant until April

Judge Millenky: So looking again at the brief in support of the motion for summary judgment and it does appear to be Vineland defendants, am i correct sir? El Mujaddid: Yes Judge: and i don’t have anything that is in opposition to the motion on the part of the superior court defendants or related defendants that’s opposition from you, but i understand that you filed some,

DAG Kelly: I have a copy of it,

Judge Millenky: I obviously hadn’t read it,

DAG Kelly: I have a copy from April 10th 2014, umm…

Judge: can i just see that let me,

DAG Kelly: Yes, your honor Judge: have my clerk look at it, see if we got this, we have allot of things going on,

DAG Kelly: your honor I’m giving you the reply I received after that, two different a..Pleadings

Judge Millenky: Sir, Mr. Mujaddid did you send this,  I mean it’s addressed to the civil division here in Camden county but did u mistakenly perhaps send this to uhh Burlington county,

El Mujaddid: No it was filed in the Superior Court Clerk’s Office in Trenton Judge: I mean I’m looking this, I don’t recall seeing it, you can see that i was just checking with my clerk to see if she had seen it, perhaps we got it into an incorrect file, but we don’t have this material,

DAG Kelly: Your honor I believe Mr. Mujaddid said it was filed in Trenton, Judge: Is that what you just said,

El Mujaddid: yeah i believe that it was filed with the Superior Court Clerk’s Office,

Judge Millenky: okay Sir you have to file materials here in, in Camden otherwise were not going to get them and you’ve done that in other matters,

El Mujaddid: well i didn’t know that because Judge: Okay so were going to follow the same procedure i hate to keep dragging people down here, umm I guess we’ll just do the same date, the 23rd

DAG Kelly: your honor if it helps matters at all for the 23rd of course did you want to make copies of these now for your own chambers,

Judge: is that all there is Mr. Mujaddid, just those two documents,

DAG Kelly: these are the two I received, that hopefully void or would devoid any delays in mailing or anything like that,

El Mujaddid: umm yes these two and then there was uh this April 5th letter, I mean I can…if she would make a copy,

Judge Millenky: and Mr. Kelly did you receive that, DAG Kelly: the April 5th, letter do you mind if i see that, is it related to this motion to dismiss,

El Mujaddid: its related to this docket generally DAG Kelly: it’s not, is it in response to the motions to dismiss by these defendant do you know

El Mujaddid: umm, not, not the court defendants,

Judge Millenky: Let’s do this Mr. Mujaddid with respect to the documents that you intend to file with this court, and by that i mean, superior court of new jersey in Camden county in particularly the matters that are pending before me, they have to be filed in Camden county, otherwise i don’t receive them,

El Mujaddid: okay,

Judge Millenky: umm here’s what I’m gonna ask you to do, I’m gonna ask you to file those papers with me, because there has to be a record also within our system of the filing, umm, I’m gonna ask them that you file them here, with the superior court, they’ll get up to me within a day once there filed downstairs, umm you need to file them, today is the 30th, umm its Wednesday, can you file them by next Monday,

El Mujaddid: yes, Judge: okay ah that will provide adequate time, all papers that you intend to file in anything that is ongoing in Camden county, remember your matters were transferred from Burlington here, have to be filed in Camden county, I’m gonna continue it to the 23rd, okay, umm I’m not going to take the copies only because i wanna be certain that I’ve got filed documents that there entered into the computer system, and that i know, that there is opposition properly filed otherwise were going to create a  level of sort of informality, that will generate the non filing of papers and filing is critical 

DAG Kelly: and I would also ask that we also receive a copy of anything that’s filed just to make sure it’s the same thing, ….

Judge Millenky: okay so Mr. Mujaddid by next Wednesday

El Mujaddid: right …okay, Judge: and sir we do have the letter from April 5th, and that was filed, so I think your methodology has been a little inconsistent, some matters.. Some materials filed here,

El Mujaddid: some made it some didn’t,  Judge: well i can’t tell from looking at it how the original correspondence was addressed it might of gone to Trenton and found its way here but not everything does you have to file here in Camden county, okay?

El Mujaddid: okay alright, Judge: alright so I’m going to continue these matters to the 23rd, i apologize for the delays and dragging people down i know it gets umm tiresome

DAG Kelly: thank you, your honor may i be excused Judge: absolutely 

Judge Millenky: and then there’s also a motion to dismiss and in the alternative for a more definite statement by the attorneys for the defendant city of Vineland municipal court umm administrators, municipal court judge, Inez Accosta, and umm Donna Buckman, lets deal with that next,  this is of course again E l Mujaddid v. City of Vineland against its Docket L4550-13 and this is Vineland’s motion to dismiss or in the alternative for a more definite statement and there is a cross motion as well by Mujaddid for summary judgment, appearances,

El Mujaddid: pro se litigant El Mujaddid noting appearance for the record,

Mr. Leinhasuer: Brian Lienhauser Your Honor, the McMain Law Group on behalf of the City of Vineland and its employee defendants Judge:  okay and you are the initial moving party in this and you outline, the essential I think inability to decipher exactly what claims are being made, and you propose to either dismiss those claims or to allow for a more definite statement, pursuant to the rule if you would elaborate on that I’d be happy to hear you

Mr. Leinhauser: Yes your honor, uhh initially uhh, you know, the voluminous complaint that we had received we excepted service of that in order to facilitate at least progress in the matter, and before, uhh, it appears to the city of Vineland defendants that what Mr. Mujaddid is seeking are documents related to a criminal prosecution uhh that no longer exist uhh and he alleges all matter a violation of his rights related to not receiving documents related to a criminal prosecution that has since been dismissed I think… Judge: But he, He certainly alleges that as a result of documents not being turned over, his period of incarceration might have been lengthier he didn’t 

Mr. Lienhauser: not at the hands of the city of Vineland, Judge: well, well, you know, I don’t know enough about that, umm,  information, having to do with some of the arrest issues, he claims to have not been provided to him, he asserts that other information was delayed in its provision and you know i think that i just heard that moving forward from 2010 to 2013 he suggest that he again asked for information from the city of Vineland, the city of Vineland says we can’t supply it to you somebody else has it, but he still finds himself in 2010 the subject of a prosecution, and finds that to the extent that he wants to pursue some remedies he is deprived of access to information so if that’s the case and the court now can’t find, figure out the cause of that,

Mr. Leinhasuer: if that is the case your honor, if that’s the allegation and you know i heard Mr. Mujaddids prior uhh argument uhh articulating with a little more clarity , his, his difficulties in the matter, if that is the case, uhh then i would ask for a more, since the time we filed our papers there has been an amended complaint with permission of the court filed, after the summary judgment was filed, an amended complaint was filed, I’m happy too, i mean… the amended complaint does set forth, with a little more clarity the allegations at least with regard to the parties and who they are, uhh some of the parties in the initial complaints were identified only by offices they held and not by name uhh which is again in addition to other things improper but now that there is an amended complaint filed i think it’s incumbent upon us at this point to respond to that filing with the court if, and whether the court wants to deny without prejudice our motion to dismiss,

Judge Millenky: so you would either answer, have you answered the amended complaint,

Leinhasuer: not yet because..

Judge Millenky: and I as best I can figure out your motion to dismiss is in response to the original complaint but not in response to the Amendment complaint correct?

Mr. Leinhasuer: Correct

Judge Millenky: Alright, I …Mr. Mujaddid, just to give you a sense of where I’m headed and you’ll then tell me that if there is anything you want to say to address this, because there an amended complaint filed and you properly filed that the court gave you leave to file an amended complaint, were faced with what i think is a procedural issue, the motion to dismiss here, derives from the original complaint, not the amended complaint, the amended complaint indeed flushes out a little bit more, there may be some assertion that there’s still some confusion as to claims, but there certainly allot more information in it, and it seems to me that to the extent that the, the moving party here that is the defendant, Vineland defendants, that is if i can group them together need to answer that complaint or file a motion which ever they choose to do under the rules, they should have an option to do so, what I’m goanna do then, or I’m inclined to do, but I’m goanna hear from ya, if you have any a points that you wanna to make on this, what I’m inclined to do is, to dismiss, excuse me to deny the motion for dismissal of the umm, complaint and grant them and deny it without prejudice to the right of the defendant who are the Vineland related defendants to either file an answer to the amended complaint or otherwise plead, do you wanna be heard on that,

El Mujaddid: umm, yes uhh im fine with that, i think that uhh, i was very specific in the amended complaint, so i will wait for their answer, Judge: Okay, so what we will do then is deny the motion to dismiss the complaint or for a more definite statement in light of the filing of the amendment, the plaintiff, excuse me the defendants who are the Vineland related defendants shall have leave to file an answer or to otherwise plead, and giving some of the procedural issue here, uhh counsel how much time do you need to do that??,

Mr. Leinhasuer: 21 days your honor,

Judge Millenky: okay three weeks, that’s more than reasonable, umm okay, so, three weeks from today, that’s, so the 21st of May, How does that fall?, Why don’t we just make it the end  of the week that you’ll file an answer or otherwise plead by may 23rd,…..so the dismissal, the denial of the dismissal is without prejudice,

Mr. Lienhauser: if i may your honor the, the issue pending, there’s an issue pending with then with regard to Mr. Mujaddid’s summary judgment motion which was filed,

Judge Millenky: Counsel I’m goanna deem that or Mr. Mujaddid, I call you both counsel, Mr. Mujaddid and Counsel, I deem that to be something that’s premature in light of the filing of the amended complaint there can’t possibly be the development of a response on the part of the plaintiff, at this preliminary stage, I’m goanna deny that without prejudice as well…okay,

Mr. Leinhasuer: Okay thank you honor,

Judge Millenky: Next