Opinion
Civil Action No. 99-4484 (JBS).
September 28, 2000.
Clifford Van Syoc, Esq. James E. Burden, Esq., Cherry Hill, N.J., Attorneys for Plaintiff.
Louis Lessig, Esq., William Tambussi, Esq., Brown Connery LLP, Westmont, N.J., Attorneys for Defendants Theodore Dorn and Mario Iavicoli, Esq.
Patrick Galligan, Esq. Wilson Elser Moskowitz Edelman Dicker LLP Newark, N.J. Attorney for Defendants Alan Schmoll, Esq., Craig Bailey, Esq., and Capehart Scatchard PA.
John B. Kearney, Esq., Kearney Castillo PC, Haddon Heights, N.J. Attorney for Defendant Carol Curtis.
O P I N I O N
This action arises out of a series of disciplinary proceedings instituted by the Borough of Haddonfield Police against one of its police officers, plaintiff George Ames ("plaintiff"). Plaintiff alleges that these proceedings were improper and has filed suit in this Court under the New Jersey Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-2, et seq., and 42 U.S.C. § 1983. Plaintiff maintains that the disciplinary actions taken against him in retaliation for plaintiff in reporting criminal misconduct of the former Haddonfield Chief of Police.
Presently before the Court are three separate dispositive motions. The first is the motion of defendants Dorn and Iavicoli for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The second is the motion of defendant Carol Curtis to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., and the third is Curtis' motion for Rule 11 sanctions against plaintiff's counsel, Clifford Van Syoc, Esq. for filing frivolous claims against Curtis. For reasons discussed herein, the Court will grant Dorn and Iavicoli's summary judgment motion, and will dismiss plaintiff's complaint. The complaint being dismissed, the Court will in turn dismiss as moot Curtis' motion to dismiss, and will dismiss Curtis' motion for Rule 11 sanctions.
Defendants Schmoll, Bailey, and Capehart Scatchard PA (the "Capehart Defendants") have joined Dorn's motion.
BACKGROUND
On or about July 11, 1997, defendant Carol Curtis filed a complaint with the Haddonfield Police Department. (Compl. ¶ 17.) Curtis alleged that plaintiff engaged in criminal sexual contact/harassment with her while on duty by, among other things, repeatedly taking her for rides in his patrol car and requesting oral sex. (Id.)
Detective Ted Steussy was assigned to investigate Curtis's complaint, and generated a report based on his findings. (Id. ¶¶ 18-19 Ex. A.) Thereafter, the complaint was referred to the Camden County Prosecutor for review on July 25, 1997.
On July 30, 1997, the Special Prosecutions Section of Camden County's Prosecutor's Office informed Curtis by way of letter that the complaint would not be presented to the grand jury, and referred the entire matter back to the Haddonfield Police Department for the appropriate disciplinary action. (Dorn Ex. C.) The borough determined that Ames would be charged administratively. (Pl. Ex. A at 3.)
The Borough Solicitor prepared a Complaint for Administrative Charges pursuant to N.J.S.A. 40A:14-147, dated September 3, 1997. Ames denied the allegations therein and sought a hearing.
The Borough retained Alan Schmoll, Esq., to represent it and present the charges at the hearing. (Compl. ¶ 22; Findings of Hearing Officer Oren Thomas, Pl. Ex. A.) The ensuing hearings took place over the next four months, during which time plaintiff was represented by Barbara Paul, Esq., and was given the opportunity to be heard. (Ames Dep. at 62:7-13 and 67:6-19, Dorn Ex. B.)
During the course of the hearings, Chief Ostrander learned that Detective Steussy had removed language in his report indicating that Curtis's charges were "not sustained". (Compl. ¶ 23.) After being informed of this, the Borough Solicitor asked Chief Ostrander to submit in writing the language Steussy had deleted from his report. (Dorn Ex. D.) Steussy provided this information in a document dated December 9, 1997, stating that he had deleted the phrase "not sustained" pertaining to Curtis's charges pursuant to an order from his Captain, Robert Rusin. (Id.) The Borough Solicitor then provided the information provided to the Capehart defendants and Attorney Paul. (Dorn Ex. E.) Steussy testified during the disciplinary hearing that he did not believe Curtis's charges were supported by the evidence. (Dorn Ex. F.)
Following the hearings, Hearings Officer Oren Thomas rendered in his opinion a report in which he recommended that the Curtis-related charges against Ames should be dropped. (Compl. ¶ 28.) The Borough reviewed the Thomas report, the transcripts of the hearing, and other evidence. After this evaluation, it issued a report entitled "Final Decision of Disciplinary Action" (the "Final Decision") on September 18, 1998, authored by Commissioners of Public Safety Theodore Dorn and concurred with by Commissioner Letitia Colombi and Mayor Eugene Kain. The Final Decision found the plaintiff guilty of certain charges notwithstanding the Hearings Officer's determination that all charges should be dropped. (Id. ¶ 29.) As a result of this report, plaintiff was in September 1998 demoted from Sergeant to Patrol Officer.
During the pendency of the Borough's review of the Hearings Officer's determinations concerning the Curtis complaint while Ames was still a Sergeant, plaintiff was the subject of a second set of administrative charges in 1998. In this set of charges, the Borough accused Ames of (a) conduct unbecoming an officer, (b) neglect of duty, (c) authorizing the improper use of police uniforms by two officers, (d) authorizing the unauthorized use of a police patrol car, (e) harassment, disrespect, and heckling of a patrolman, (f) failure to take proper action, failure to supervise, and failure to properly patrol the municipality. (Pl. Ex. C at 1.) Among the facts upon which the Borough based the new complaint was that on March 17, 1998, plaintiff delayed issuing parking summonses in an area where there was a history of parking problems. Ames also allegedly improperly permitted two on-duty uniformed police officers to drive Haddonfield patrol cars to a rally for a Haddon Heights police officer who had a dispute with his employer, Haddon Heights. Finally, the complaint alleges that on March 26, 1998, Ames told another police officer, patrolman Robert Shreves, that he should have his father repaint his shore house before he (Ames) takes it over and moves in, implying that he intended to sue Patrolman Shreves' father as a John Doe defendant in his suit over the Curtis complaint. (Admin. Compl. ¶¶ 3-5, Pl. Ex. C.)
Plaintiff was served with this second complaint on June 11, 1998, and was informed that he would receive a four-day suspension if he pleaded guilty. Ames rejected the offer, and elected to proceed with a hearing.
Thereafter, a hearing was held on the second complaint. (Transcript of Hearing, Pl. Ex. J.) J.J. Pierson was appointed to preside as the Hearing Officer, and plaintiff was represented by his present attorney, Clifford Van Syoc, Esq. (Id.) The Borough was represented by Craig Bailey, Esq. Evidence was presented during the hearings and Ames was given the opportunity to be heard. (Ames Dep. at 62:14-25; 63:1-16.)
Another administrative complaint was brought against Ames in September 1999. (Compl. for Admin. Charges dated September 16, 1999 ("Admin. Complaint III"), Pl. Ex. G.) In this complaint, Ames, was charged with possessing and/or creating and publishing racial, bigoted, biased, discriminatory, lewd material; and threatening of witnesses. The complaint alleged that it had been discovered that Ames kept at the police station a file entitled "humor" in which Ames kept documents containing such ethnically derogatory language as "niggers", "jungle bunnies", "saucerlips", and belittling jokes offensive to Italian-Americans, Polish-Americans, Jewish-Americans, Mexican-Americans, and women, among other groups. Ames was also accused of possessing pro-Nazi material in the form of photographs of a person wearing a Nazi Swastika armband and giving a Nazi Salute to two persons whose heads and hands extend from a flaming barbeque oven. (See Admin. Compl. III Exs. E F.) Ames was served with this complaint on September 17, 1999.
The record also shows that, in an incident which did not lead to disciplinary charges, Ames once showed up to a wedding anniversary party thrown by a police department co-worker dressed in a dark red robe with a conical hat that the party attendees understood to be a Ku Klux Klan uniform. (Report and Recommendation of Hearing Officer Steven P. Perskie at 3, Dorn Ex. G.)
In between the time Ames was served with the new charges, and the hearing thereupon, the Borough released its Final Decision on the Curtis Matter, in which it was determined that Ames had committed misconduct and would be demoted to Patrolman from his previous rank of Sergeant. Thus, at the time Ames participated in the hearing on the third administrative complaint on September 20, 1999, he already had been subjected to discipline and demoted.
At the September 20th preliminary Loudermill hearing on the third set of charges, Mr. Ames was given the opportunity to be heard, and was again represented by Mr. Van Syoc. The Borough was represented by Mr. Bailey. (Hrg. Trans., Pl. Ex. I.) Very little of substance took place, other than the Borough providing notice of the charges against Ames. Plaintiff's counsel stated repeatedly that there was no evidence of wrongdoing, that the charges were retaliatory, and that Ames intended to sue all individuals involved with disciplining him. At the conclusion of this hearing, Commissioner Dorn suspended Ames without pay pending further investigation into the allegations contained in the second administrative complaint.
On September 21, 1999, plaintiff filed the instant complaint in this Court, suing virtually everyone who had taken part in disciplining him in connection with the Curtis incident and in connection with the incident involving his possession of racially inflammatory documents. Plaintiff's Count I claims that the defendants' actions violated his rights under 42 U.S.C. § 1983. Plaintiff's Count II alleges that his dismissal was in retaliation for his 1991 decision to report a ticket fixing scandal involving former Haddonfield Chief of Police James Sanville, and thus defendants' efforts to discipline him contravened the New Jersey Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1. Count III alleges loss of consortium by plaintiff's wife Elizabeth Ames against the defendants as a consequence of their actions. Coincident with filing the present complaint, plaintiffs applied to this Court for an Order restraining the Haddonfield disciplinary board from taking further action against Ames, and requested an injunction forcing Haddonfield to rescind its decision to suspend Ames without pay.
Plaintiff's Count IV is directed at defendant Mario Iavicoli, Esq., and seeks to disqualify Iavicoli as counsel for the Borough of Haddonfield in this matter. Separate counsel has now been retained for Haddonfield, and this issue is now moot. Accordingly, Count IV will be dismissed.
Before this Court had the opportunity to hear argument on plaintiff's application for restraints, Haddonfield Chief of Police Richard Tsonis filed a fourth set of charges against plaintiff. This complaint, dated November 1, 1999, was served on Ames on November 3, 1999, and apparently was redundant of the third complaint concerning Ames' possession of racist documents. The third and fourth complaints thus eventually were consolidated.
On November 8, 1999, this Court denied plaintiffs' application for injunctive restraints, finding that doing so would violate the doctrine articulated by the Supreme Court in Younger v. Harris and its progeny that federal courts should not intervene in pending state level criminal or administrative proceedings. See e.g., Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982).
Around this same period, Haddonfield pressed forward with its charges against Ames concerning his supervisory misconduct and his possession of racist and inflammatory documents. Testimony was taken concerning these matters on October 15, October 27, November 3, November 10, November 17, and November 23, 1999. At the conclusion of the evidence, Hearings Officer Steven P. Perskie concluded that plaintiff should be given a 60 day suspension without pay, thus disposing of all remaining administrative charges. (Perskie Report, Dorn Ex. G.) Apparently, Ames is still employed by Haddonfield as a patrolman.
Defendant Carol Curtis filed her motion for sanctions on December 15, 1999 and her motion to dismiss on January 20, 2000. Defendants Dorn Iavicoli submitted their motion for summary judgment on May 19, 2000, in which the Capehart defendants joined on or around June 13, 2000.
Significantly, Ames sued the defendants for violation of CEPA in state court before he filed his § 1983-based suit in this Court. The facts alleged in support of plaintiff's CEPA claims asserted in both suits are substantively identical. (Compare State Ct. Compl., Dorn Supp. Ex. A,with Compl. Count II.) During the pendency of the motions in this case, the plaintiff's CEPA claim was ruled upon by the Honorable Samuel Supnick, J.S.C., Camden Superior Court, Law Division. In an oral opinion dated June 13, 2000, Judge Supnick granted the motion of defendants Dorn and Iavicoli for motion summary judgment against Ames' CEPA charge, and consequently dismissed plaintiff's complaint with prejudice. Judge Supnick found that plaintiff had failed to create a triable issue as to whether there was a causal connection between administrative charges against Ames in 1997 and Ames' 1991 "whistle blowing" act implicating the former Haddonfield Chief of Police in a ticket fixing scandal. (Oral Opinion at 9:16-23, Dorn Supp. Ex. B; Order of Judge Supnick DismissingAmes v. Borough of Haddonfield, Docket No. L-1301-98 (June, 14, 2000, N.J. Super. Ct., Law Div., Camden Co.), Dorn Supp. Ex. C.)
On July 6, 2000, defendants Dorn and Iavicoli submitted a supplemental brief concerning the effect of Judge Supnick's opinion on this case. Arguing that Judge Supnick's Order should estop plaintiff from asserting a CEPA claim in this case, Dorn now has added as grounds for dismissing Count II the doctrines of res judicata and collateral estoppel. Plaintiff's counsel never responded to this submission despite repeated phone calls from Dorn's Attorney Louis Lessig, Esq., to plaintiff's counsel to advise him of the impending supplemental submission. (Lessig Supp. Cert. ¶¶ 4-5.) Plaintiff thus appears to have conceded that Judge Supnick's Order mandates dismissal of Count II.
— DISCUSSION
A. Summary Judgment Standard
Under the Federal Rules of Civil Procedure, a court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. denied, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Plaintiff's § 1983 Claims
Ames contends that he was not afforded due process of law in connection with the administrative charges brought against him by Haddonfield, and that this conduct violated his rights in contravention of 42 U.S.C. § 1983. Dorn and Iavicoli now move for summary judgment against Ames' § 1983 claims, contending that plaintiff was afforded all process due him by virtue of advance notice of charges, and full hearings thereupon.
Plaintiff has alleged that, in committing the above-described violations, defendants acted under color of state law to deprive him of his Eighth Amendment right to be free of cruel and unusual punishment, and thus violated 42 U.S.C. § 1983. The statute invoked, 42 U.S.C. § 1983, is a powerful legislative "sword" providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government. Since its enactment, § 1983 has become Congress's primary means of protecting United States citizens from illegal state action. Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 1.1 (4th ed. 1997).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, to properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, there is no dispute as to whether Ames had a property interest in his employment with Haddonfield. The sole issue under § 1983 then is whether the procedures employed leading up to Ames' demotion and suspension were constitutionally adequate.
1. Procedural Due Process
In Cleveland Bd. of Educ. v. Loudermill, the Supreme Court held that when threatened with dismissal, a public employee with a property interest in his job is entitled to a "pretermination opportunity to respond, coupled with post-termination administrative (or judicial) procedures." 470 U.S. 532, 547-48. The Court stated that the employee has a right to a "something less" than a full evidentiary hearing prior to adverse administrative action. Id. at 545. The adequacy of any hearing is assessed in light of "two essential requirements of due process, . . . notice and an opportunity to respond." Id. at 546. Notice is sufficient if it informs the employee of the general nature of the charges and the evidence against him, and does so in a manner which is timely under the particular circumstances. Gniotek v. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986). A precise disclosure is not required to satisfy the demands of due process. Austin v. Neal, 933 F. Supp. 444, 450 (E.D.Pa. 1996).
In this case, there is no evidence to support plaintiff's claim that he was denied procedural due process. Prior to the imposition of discipline, plaintiff was afforded ample notice of the charges against him, given an opportunity to refute the charges, and an opportunity to review and respond to the evidence presented by Haddonfield. (See Ames Dep. at 61:16-24; 62:7-13 19-25; 63:1-16; 66:8-14 23-25; 67:1-5 17-25 and 68:1 10-25.)
Four separate disciplinary actions were brought against Ames. The first set of charges involved Ames' improper relationship with defendant Carol Curtis. The second set involved Ames' supervisory failures such as allowing patrolmen to take a patrol vehicle to a rally for a policeman in an employment dispute with a neighboring borough. The third and fourth sets (which were later consolidated) concerned Ames' possession of racially and ethnically inflammatory material in a file at work. On each occasion, Ames first received general notice of the charges against him, thus satisfying the requirement that he be given timely notice of the charges. He later received full hearings on the disciplinary charges, at which time he was given a summary of the evidence against him, and an opportunity to review the evidence, and a chance to respond to or refute the evidence. Plaintiff received a total of sixteen days of hearings before three different neutral hearings officers, raised objections at the hearings, examined and/or cross-examined witnesses, and introduced his own documents into evidence.
In sum, the record in this case is replete with evidence that Ames has received all the pre-discipline process due him under Loudermill, and was provided ample opportunity to contest the charges against him. Plaintiff's failure to adduce evidence to the contrary is fatal to his procedural due process claim.
2. Substantive Due Process
Plaintiff also asserts that defendants' actions violated his substantive due process rights. In order to state a valid claim of deprivation of substantive due process rights, a plaintiff must show that he was deliberately and arbitrarily or capriciously deprived of a "fundamental" right for which substantive due process is ordinarily afforded. The Supreme Court has hinted but not held that government employment is not so "fundamental" as to trigger the protections of substantive due process. Harrah Independent School Dist. v. Martin, 440 U.S. 194, 198 (1979). Even assuming for the sake of argument that plaintiff had a fundamental right to employment, however, he has failed to create a triable issue of whether he has been denied substantive due process.
Government officials can only violate the substantive due process clause when their conduct "amounts to an abuse of official power that shocks the conscience". Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc). This "shocks the conscience" test means that substantive due process claims are reserved for truly egregious and extraordinary cases. Austin, 933 F. Supp. at 451.
A review of the plaintiff's complaint reveals a dearth of allegations that "shock the conscience". Even read in the most generous light, the complaint's sole possible claim of deprivation of substantive due process arises from plaintiff's contention of wrongful discipline in connection with the Carol Curtis matter. Plaintiff alleges that the hearings officer in the matter found the charges unsubstantiated, and yet the decision to exonerate Ames was overruled by zealous officials who wanted him fired. The sole evidence offered in support of this theory was that, notwithstanding the hearing officer's decision to acquit, Haddonfield demoted him from the rank of Sergeant to patrolman based on unsupported conclusions contained in the "Final Decision of Disciplinary Action" authored by Dorn and others.
While plaintiff may not agree with Dorn's conclusion that Ames acted improperly in connection with the Carol Curtis incident, the decision by Haddonfield to overrule the hearings officer is not unprecedented, nor does it shock the conscience. Dorn, as the duly appointed head of Haddonfield's police force was the sole authority empowered to make a disciplinary decision, not the hearings officer. Under the authority vested in him as Public Safety Director of Haddonfield, Dorn acted in accordance with N.J.S.A. 40A:14-118 when imposing discipline on Ames.
Having reviewed the transcript of the proceedings before the hearings officer, Dorn concluded that the transcripts showed that Ames had repeated illicit contacts with Carol Curtis, an unemployed and eccentric Haddonfield resident described by her own daughter as obsessive compulsive, and that Ames had taken advantage of Curtis' loneliness and craving for affection by repeatedly requesting oral sex in his squad car while on duty. Dorn also found that Ames had taken Carol Curtis' 31-year-old daughter, Jennifer Curtis, for a ride in his squad car on the pretense wanting to talk about her mother's emotional problems, but instead of addressing Carol Curtis' problems, thrice asked Ms. Curtis if she was "turned on" by men in uniform.
Dorn found that the transcripts clearly showed Ames was guilty of multiple, repetitive violations over a period of many months, and that his conduct was unbecoming of a police officer. Dorn concluded that Ames conduct towards Curtis showed that he was unfit for a leadership position in the police department. However, rather than terminate Ames, an action which would have been well within his authority, Dorn merely demoted Ames from Sergeant to patrolman.
Under these circumstances, Dorn's decision to demote Ames, even if this determination conflicted with the findings of the hearings officer, was not an abuse of power. The basis for Dorn's decision to demote Ames is laid out in painstaking detail in a 42 page report that details Ames' relationship and contact with Curtis. Based on the elaborate and well-reasoned grounds for discipline contained in Dorn's report, the Court finds that Dorn's decision to discipline Ames was entirely appropriate, and was certainly not so irregular as to "shock the conscience".
Ames has come forward with no evidence to counter Dorn's detailed report, and thus Ames' claim of deprivation of substantive due process is premised solely on his suspicion that Dorn's decision to discipline him was made in bad faith and in retaliation for "being a thorn in the side of the administration" when he reported a ticket fixing scandal seven years earlier. Again, plaintiff has failed to adduce any evidence contrary to Chief Dorn's findings, much less has he pointed to evidence from which any reasonable factfinder could conclude that the substantive result is so contrary to the facts and the law as to shock the conscience.
Plaintiff's allegations of retaliation seem especially weak considering that he was promoted twice in the years following the ticket fixing incident. ( See Final Decision at 41, Pl. Ex. B.)
3. Plaintiff's Request for Extension of Discovery
Rather than coming forward with evidence in support of his conspiracy and due process theories as required by the Federal Rules of Civil Procedure, Ames generally asserts that "the facts in plaintiff's Complaint . . . and the plaintiff's answers to interrogatories, constitute material issues of fact which preclude this Court from granting summary judgment." (Pl. Br. in Opp'n to Dorn Mot. at 4-5.)
It is well-settled that the non-moving party in a summary judgment motion has the burden of coming forward with evidence that would support a jury verdict in his favor. Thus, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52 (1986). General denials, and mere allegations in the pleadings are not sufficient to prevent summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Having failed to adduce evidence supporting his theory that the defendants disciplined Ames in bad faith, plaintiff generally asserts that Dorn's motion for summary judgment should be denied because additional discovery is required to develop plaintiff's claims. (Pl. Br. in Opp'n to Dorn Mot. at 5.)
Where the party opposing summary judgment asserts that the motion should be denied because additional discovery is necessary to establish the claims at issue, that request must be properly supported pursuant to Rule 56(f), Fed.R.Civ.P. The Third Circuit has established that in order to justify a continuance under Rule 56(f), the party must demonstrate (1) what particular information is sought, (2) how the additional discovery will likely create a genuine issue of material fact and preclude summary judgment, and (3) why the information was not previously obtained.Contractors Assoc. v. City of Philadelphia, 945 F.2d 1260, 1266 (3d Cir. 1991).
An opposing party's request for additional discovery may be denied when the party has not been diligent in conducting discovery, or when the affidavit does not demonstrate what facts remain to be discovered and how those facts would affect the summary judgment analysis. C.B. Trucking Inc. v. Waste Management, Inc., 137 F.3d 41, 44-45 (1st Cir. 1998). A simple lack of diligence in conducting discovery will not suffice to warrant relief under Rule 56(f). Id.
Here, plaintiff never moved to extend discovery, has not explained his failure to do so, and has failed to demonstrate how postponing the Court's decision would help him to defeat the present summary judgment motion.
U.S. Magistrate Judge Robert B. Kugler issued the final scheduling Order in this case on January 26, 2000. This Order set discovery cutoff for June 30, 2000 and dispositive motions as due before March 31, 2000. Defendants Dorn and Iavicoli gave notice of the present summary judgment motion on April 7, 2000, and briefing was completed on May 19, 2000. Thus, even after briefing was completed on the present motion, plaintiff had over a month to file a motion to extend discovery pursuant to Rule 56(f). Plaintiff never did so. A review of the Magistrate Judge's file in this case shows that plaintiff never applied to the Magistrate Judge for an Order extending time for discovery. Indeed, the only references to any need for extension of discovery is buried deep within plaintiff's brief in opposition to Dorn's motion, and in a one-paragraph generalized request for such extension at the end of a certification by plaintiff's counsel James E. Burden, Esq.
Plaintiff's counsel's vague certification is not in itself enough to warrant extension of discovery. Mr. Burden states only that "additional discovery is needed to resolve the issues raised by defendant's motions. Specifically, the defendants' motive, state of mind, and rationale for the specific acts identified in the Verified Complaint". Thus, even assuming for the sake of argument that this single paragraph within counsel's certification could serve as a request for Rule 56(f) relief, plaintiff's broad assertion that additional discovery is required with respect toall allegations and as to the state of mind to all defendants does not suffice to show good cause for extending discovery under Rule 56(f). Plaintiff nowhere addresses what information is sought, how the additional discovery will likely create material issues of fact, and why plaintiff has not previously obtained this information, all as required byContractors Assoc., supra.
It is rudimentary that, as in all civil cases, a plaintiff asserting a § 1983 claim carries the ultimate burden of proof. Because plaintiff has come forward with no evidence in support of his theory of the case, it is manifest that plaintiff has not met his burden of proffering evidence from which a reasonable fact-finder could conclude that his federal civil rights were violated. Accordingly, the Court will grant the motion for summary judgment of defendants Dorn and Iavicoli as to plaintiff's § 1983 claims in Count I, and that Count will be dismissed.
C. Plaintiff's CEPA Claim
As noted above, the New Jersey Superior Court has granted summary judgment against plaintiff's CEPA claims in his state court complaint. Defendants Dorn and Iavicoli argue that because his now-dismissed CEPA claims are substantively identical to Count II of the complaint filed in this Court, Judge Supnick's order bars mandates dismissal of plaintiff's Count II under the doctrines of res judicata. For reasons now discussed, the Court finds that plaintiff's CEPA claims must be dismissed under the doctrines of res judicata and Rooker-Feldman, and will dismiss plaintiff's Count II.
1. Res Judicata
In determining whether claims in the instant matter are barred by res judicata, this Court looks to the well-settled rule recited in Paramount Aviation Corporation v. Augusta, 178 F.3d 132, 135-36 (3d Cir. 1997), that "federal courts should apply the general rule that the preclusive effect of a judgment is determined by the preclusion law of the issuing court. . . ." Because the instant case involves application in federal court of a previous decision of a state court, this Court must look to both federal and New Jersey preclusion doctrines. The two are nearly identical. See Sutton v. Sutton, 71 F. Supp.2d 383 (D.N.J. 1999).
Under federal law, res judicata prohibits a party from reopening and relitigating issues that were or could have been decided in a previous case involving the same parties arising out of the same transaction. There are three elements to claim preclusion: "(1) a final judgment on the merits in a prior suit involving (2) the same claim and (3) the same parties or their privies." EEOC v. United States Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990). See also Federated Dep't Stores v. Moitie, 452 U.S. 394, 398 (1981). Res judicata precludes claims that were determined in the earlier action as well as ones that could have been determined. Angel v. Bullington, 330 U.S. 183, 192-93 (1947).
New Jersey courts apply essentially the same analysis for res judicata: "(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one." Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398, 412 (1991) (quoting Moitie, 452 U.S. at 398, as consistent with New Jersey law). A cause of action "that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding."Velasquez v. Franz, 123 N.J. 498, 505 (1991).
2. The Rooker-Feldman Doctrine
Under 28 U.S.C. § 1257, final judgments or decrees entered by the highest court of a state may only be reviewed by the United States Supreme Court via a writ of certiorari. Under the Rooker-Feldman doctrine, gleaned from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), lower federal courts cannot "sit in direct review of the decisions of a state tribunal." Whiteford v. Reed, 155 F.3d 671, 673 (3d Cir. 1998) (quoting Gulla v. North Strabane Township, 146 F.3d 168, 170 (3d Cir. 1998)). If the relief sought in a federal action (not before the Supreme Court) would "effectively reverse the state decision or void its ruling . . . the district court has no subject matter jurisdiction to hear the suit." Whiteford, 155 F.3d at 674 (quoting FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)). The doctrine applies to the decisions of lower state courts as equally as it does to higher state courts, Whiteford, 155 F.3d at 674, so long as the state adjudicative action reached the merits of a plaintiff's claims.Gulla, 146 F.3d at 172-73.
3. Analysis
As explained above, the Rooker-Feldman doctrine bars this Court's review of adjudicative actions by state courts. See Whiteford, 155 F.3d 671. Here, that doctrine bars further consideration of plaintiff's CEPA claims as the merits of those claims have been ruled on by the Superior Court. The Superior Court's decision was an adjudicative one, entering summary judgment based on a lack of supporting evidence. Any review of that decisions must be handled through the appellate procedures of the New Jersey state courts and, if necessary, through an application for a writ of certiorari with the U.S. Supreme Court. Though the Supreme Court would have appellate jurisdiction pursuant to 28 U.S.C. § 1257, this district court does not.
Moreover, the claims in this case are barred by res judicata. In the Law Division action, plaintiff put the same facts — an alleged conspiracy to oust him from his job in retaliation for purported "whistleblowing activity" — at issue. The defendants in this case were named as defendants in that case, and in state court the plaintiff challenged the legitimacy of the same series of disciplinary actions. The Law Division reached a final judgment on the merits of that case, dismissing plaintiff's complaint in its entirety upon a motion for summary judgment. Thus, because the Law Division action involved the same CEPA claim as the instant suit, and resulted in a final judgment on the merits, its decisions dismissing the case act as res judicata upon plaintiff's current CEPA claims against all defendants. See Watkins, 124 N.J. at 412.
D. Defendant Curtis' Motions to Dismiss and for Rule 11 Sanctions
Because the Court has determined as a matter of law that plaintiff's CEPA and § 1983 claims must be dismissed, it follows that the complaint must be dismissed in its entirety. Plaintiff's claims against Curtis and other non-state actors are premised entirely on the theory that they violated CEPA by conspiring or acting in concert to have him disciplined or terminated. As stated above, the Superior Court has held as a matter of law that there was no violation of CEPA. Of course, without an underlying CEPA violation, the defendants cannot be held to have conspired to violate that act. Accordingly, defendant Curtis, along with all other defendants, will be dismissed from this case. The effect of this decision, which is reached pursuant to Rule 56, Fed.R.Civ.P., moots Curtis' motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., and the motion to dismiss will itself thus be dismissed, as moot.
The Court likewise finds that plaintiff's Count III, which is a loss of consortium claim by Mrs. Ames on account of defendants' violation of CEPA, also must be dismissed because the Superior Court found as a matter of law that no such violation occurred.
The Court next turns to consider Curtis' application to this court, pursuant to Fed.R.Civ.P. 11, for an award of costs and attorney's fees against plaintiff's counsel, Clifford Van Syoc. Curtis contends that a sanction of fees and costs is appropriate in this instance because plaintiff's counsel could not possibly have had a good faith basis for naming Curtis as a defendant. Curtis argues that the claims against her are obviously time-barred and frivolous.
Curtis' motion for Rule 11 sanctions is properly before this court, as it was forwarded to plaintiff's counsel more than twenty-one days prior to filing, as required by Rule 11(c)(1)(A). Plaintiff's counsel, upon receipt of this motion, did not elect to withdraw the complaint.
Rule 11 imposes obligations on the attorney signing each and every "pleading, written motion, or other paper," that: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and] (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[.] Fed.R.Civ.P. 11(b)(2) (3). See also Watson v. City of Salem, 934 F. Supp. 643 (D.N.J. 1995).
The signer of a pleading, motion or other document has an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing. See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 542-43 (1991). As the Third Circuit has stated, an attorney must "Stop, Think, Investigate and Research" before filing papers either to initiate a suit or to conduct the litigation.See Watson, 934 F. Supp. at 662.
However, sanctions are warranted "only in the `exceptional circumstance' where a claim or motion is patently unmeritorious or frivolous." Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 289 (3d Cir. 1991). Thus, this court must determine whether a competent attorney who conducted a reasonable investigation into the facts and law pertinent to the case could have determined that the allegations presented against Curtis were well grounded in law and fact.
As a preliminary matter, the Court finds that plaintiff's CEPA conspiracy claim against Curtis was timely filed. The first administrative complaint, which was the only complaint concerning Curtis' allegations of harassment, involved events transpiring between 1995-97. Curtis testified in the hearings on her complaint, and a final decision was reached on her claims on September 18, 1998, a Friday. Thus, to the extent that plaintiff alleges in Count II that Curtis is liable under CEPA for maliciously conspiring to have him disciplined, the one-year CEPA statute of limitations began to run from the time that plaintiff was served with a copy of the Final Decision regarding the extent to which he would be disciplined based on Curtis' allegations. See Keenan v. Bell Communications, 289 N.J. Super. 531, 540-41 (App.Div. 1996) (CEPA claim accrues on date of actual adverse employment action). The record is unclear as to exactly when plaintiff was served with a copy of the Final Decision on the Curtis matter, but as the Final Decision was dated Friday, September 18, 1998, it seems reasonable that plaintiff received a copy of the decision at the earliest on the following Monday, September 21, 1998. Because plaintiff filed the present complaint in this Court exactly one year later, on September 21, 1999, his CEPA claims against Curtis were filed on the last day before the limitations period had run.
Turning to consider whether plaintiff's CEPA conspiracy claims against Curtis were frivolous, the Court finds that a competent attorney who had conducted a reasonable investigation into the facts of this case could have believed that the claims against Curtis were well grounded. Plaintiff's counsel contends that he included Curtis as a defendant because he had a good faith basis for alleging that she played a willing part in the retaliatory conspiracy against Mr. Ames. (Pl. Br. in Opp'n to Curtis Mot. at 9.)
As plaintiff's counsel points out, CEPA prohibits not just direct retaliation by an employer, but also acts done indirectly helping an employer to retaliate. See N.J.S.A. 34:19-2. Thus, in theory, it did not contravene precedent to assert a CEPA conspiracy claim against Curtis. While plaintiff's conspiracy theory seems weak at best, the Court cannot determine whether there was ever any reasonable factual basis upon which Mr. Van Syoc hurled plaintiff's allegations against Ms. Curtis. Without the benefit of a fully developed record on the extent of Curtis' involvement with the disciplinary hearings, it is difficult to ascertain what a reasonable attorney would or would not have included in the complaint as far as claims against Curtis. There have been no depositions of any defendants in this case. Ms. Curtis has not been questioned in connection with this litigation, and only one deposition has been taken overall, that of Mr. Ames by Mr. Tambussi. Thus, in deciding the present motion, the Court has only the conflicting briefs of Mr. Van Syoc, who contends that he had a good faith basis for including Ms. Curtis, and that of Ms. Curtis' attorneys, who contends that Mr. Van Syoc did not have such a basis. Without more evidence, the Court is unable to determine whether a reasonable attorney would have thought that Curtis was a viable defendant in this matter. Accordingly, the Court will dismiss Curtis' motion for sanctions under Rule 11 without reaching the merits. It would serve little constructive purpose to perpetuate this lawsuit, which has now been dismissed, for the sake of reopening discovery to determine whether Curtis can meet her burden upon this Rule 11 motion which is so fact-sensitive.
CONCLUSION
For the reasons discussed in today's Opinion, the Court finds will grant the motion for summary judgment of defendants Dorn and Iavicoli against plaintiff's Count I (§ 1983 claims), and will dismiss plaintiff's Count II (CEPA claims) under the doctrines of res judicata andRooker-Feldman. The Court will also dismiss as moot defendant Carol Curtis' motion to dismiss and will dismiss her motion for Rule 11 sanctions. The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court on the motion of Defendants Dorn and Iavicoli for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and defendant Carol Curtis' motions to dismiss pursuant to Rule 12(b)(6) and for Rule 11 sanctions, and the Court having considered the parties submissions, and the Court having heard the parties' oral argument on the plaintiff's motion for temporary injunctive restraints on November 8, 1999, and for the reasons discussed in the Opinion of today's date;
IT IS this day of September, 2000 ORDERED AS FOLLOWS:
1. The motion of defendants Dorn and Iavicoli for summary judgment [Docket entry No. 29-1] is GRANTED ; and
2. Plaintiff's complaint is hereby DISMISSED WITH PREJUDICE ; and
3. Defendant Carol Curtis' motion to dismiss [Docket Entry No. 20-1] is hereby DISMISSED AS MOOT ;
4. Defendant Carol Curtis' motion for Sanctions pursuant to Rule 11, Fed.R.Civ.P. [Docket Entry No. 15-1] is hereby DISMISSED .