Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 1 of 7 PageID: 1391 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

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1 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 1 of 7 PageID: 1391 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY THOMAS J. HUNT and BARBARA HUNT, v. Plaintiffs, BOROUGH OF WILDWOOD CREST, MAYOR CARL GROON, CHIEF OF POLICE THOMAS DEPAUL, DR. GARY M. GLASS, individually and in their official capacities, Jointly, Severally, and in the Alternative, and Independently, and BOROUGH OF WILDWOOD CREST, HONORABLE JOSEPH E. IRENAS CIVIL ACTION NO (JEI/AMD) DENYING WITHOUT PREJUDICE ALL PENDING MOTIONS (Dkt. Nos. 13,14, 23, and 39) and DISMISSING WITHOUT PREJUDICE PLAINTIFFS AMENDED COMPLAINT Defendants. APPEARANCES: THE DOUGLASS LAW FIRM, L.L.C. Michelle J. Douglass, Esq Tilton Road, Suite 6 Northfield, NJ Counsel for Plaintiffs BARKER, SCOTT, GELFAN & JAMES Todd J. Gelfand, Esq. 210 New Road, Suite 12 Linwood, NJ Counsel for Defendants Borough of Wildwood Crest, Mayor Carl Groon, and Chief of Police Thomas DePaul Irenas, Senior District Judge: This matter having appeared before the Court upon a motion to stay (Dkt. No. 14) and a partial motion to dismiss (Dkt. No. 13) brought by Defendants Borough of Wildwood Crest, Thomas 1

2 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 2 of 7 PageID: 1392 Depaul, and Mayor Carl Groon; and motions for partial dismissal and partial summary judgment brought by Defendant Gary M. Glass (Dkt. Nos. 23 and 39); the Court having considered the submissions of the parties; and it appearing that: (1) Plaintiff Thomas J. Hunt, a former member of the Wildwood Crest Police Department, alleges he was unlawfully discharged in retaliation for conduct undertaken during his role as lead contract negotiator for the Police Benevolent Association Local 59. (Compl ) He and his wife, Plaintiff Barbara Hunt, claim the Borough of Wildwood, its Mayor, Carl Groon, Chief of Police, Thomas DePaul, and Dr. Gary M. Glass violated their constitutional rights and are liable under New Jersey statutory and tort law. 1 (2) This protracted litigation has a complicated procedural history involving the New Jersey Civil Service Commission, New Jersey Superior Court, and the District of New Jersey. (3) Following his removal from the police department in April of 2012, (Compl. 103, 104) T. Hunt appealed his Final Notice of Disciplinary Action on May 7, (Dkt. No. 14, Exh. 11 (Letter of Michelle J. Douglass dated April 12, 2012)) 1 The Court has subject matter jurisdiction over Plaintiffs claims pursuant to 28 U.S.C in light of their 1983 claim, and supplemental jurisdiction pursuant to 28 U.S.C over their state law claims. 2

3 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 3 of 7 PageID: 1393 (4) Four days later, on May 11, 2012, the Hunts filed a civil complaint in Superior Court, Law Division, Cape May County, (Dkt. No. 14, Ex. 27), and proceeded to litigate T. Hunt s dismissal in both forums simultaneously. (Defs. Br. 18; 29-30) At some point thereafter, Defendants moved to dismiss Plaintiffs complaint in Superior Court while the Administrative Law Judge scheduled administrative hearings for September and October. 2 (Defs. Br ; 29-30). On August 24, 2012, the Superior Court granted-in-part Defendants motion to dismiss. (Dkt. No. 14, Ex. 27) (5) On September 10, 2012, T. Hunt s appeal in the Office of Administrative Law began and continued October 1, 17, 18, and 22. (Defs. Br. at 20) (6) On October 29, 2012, with nine more days of administrative hearings scheduled, T. Hunt s counsel served Chief Administrative Law Judge Sanders and Administrative Law Judge Stein with a notice that all pending appeals in the Office of Administrative Law were being withdrawn. (Dkt. No. 14, Ex. 22) Counsel for the Borough of Wildwood Crest filed a letter brief in opposition to T. Hunt s request to withdraw. (Defs. Br. 24) 2 The date on which Defendants moved to dismiss was not reported to the Court. The Office of Administrative Law scheduled the September and October hearings on July 5, (Defs. Br. 18) 3

4 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 4 of 7 PageID: 1394 (7) On November 5, 2012, Plaintiffs moved to withdraw their Superior Court action in order to file the remaining claims in the District of New Jersey. (Defs. Br. 31) (8) On November 8, 2012, with both actions officially pending in their respective forums, Plaintiffs filed the instant action. (Dkt. No. 1) (9) On January 2, 2013, Judge Gibson of the Superior Court granted Plaintiff s motion to withdraw, order[ing] that Plaintiffs be and is hereby permitted to voluntarily dismiss the complaint... in order to file their action in Federal Court. (Dkt. No. 14, Ex. 29) (10) On January 9, 2013, the Civil Service Commission accepted T. Hunt s withdrawal of his appeal. (Defs. Br. 27) On or about February 22, 2013, the Borough filed an appeal with the Superior Court of New Jersey, Appellate Division, challenging the Civil Service Commission s acceptance of the withdrawal. (Dkt. No. 14, Ex. 26) The Borough s appeal remains pending and oral argument has not yet been held. 3 (Dkt. No. 43 (Dec. 9, 2013 Letter of T. Gelfand to the Court at 1)) (11) The question presented to the Court is whether the parties may actively litigate Plaintiffs claims in the instant 3 There was a recent Appellate Division motion by the municipality to supplement the Appellate Division record with transcripts of the OAL hearing. (Dkt. No. 43 (Dec. 9, 2013 Letter of T. Gelfand to the Court at 1)) 4

5 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 5 of 7 PageID: 1395 forum while the Superior Court, Appellate Division adjudicates the Borough s ongoing appeal. The Court holds that they may not. (12) Last year the New Jersey Supreme Court handed down an opinion that directs the Court s resolution of this question. See Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012). Therein, a public employee challenged his termination in the Office of Administrative Law. Following full discovery practice and the commencement of an evidential proceeding, the employer moved for partial summary decision, which was granted. Id. at 71. After the case s dismissal, the employee filed a complaint against the employer in Superior Court, Law Division, alleging retaliatory conduct violative of New Jersey s Conscientious Employee Protection Act. Id. at 72. The employer moved for summary judgment on estoppel principles, which the Law Division denied; the Appellate Division affirmed. Id. The New Jersey Supreme Court, however, reversed the Appellate Division s affirmance. Id. The Court held: No efficient and respected system of justice can permit the spectacle, and resulting disrepute, of inconsistent litigated matters involving the same transactional set of facts, notwithstanding that the forums embrace judicial and quasi-judicial proceedings. The public will neither understand nor appreciate the confounding wastefulness of such a result; and such disrespect of the legislatively created forum for supervision over, and resolution of, public employee discipline in this state should not be permitted. Rather, if an employee and employer engage the system of public employee discipline 5

6 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 6 of 7 PageID: 1396 established by law and the employee raises a claim that employer retaliation at least partially motivated the decision to bring the charge or the level of discipline sought, then both the employee and employer must live with the outcome, including its potential preclusive effect on related employment-discrimination litigation as a matter of the equitable application of estoppel principles. Id. at (13) The Winters court s reasoning controls the instant dispute. If a public employee engages the state s administrative remedy to challenge employment discipline, a court must respect the state s final resolution of that matter. The Borough s pending appeal indicates that T. Hunt s administrative proceeding is still ongoing. If the Superior Court, Appellate Division determines that the Borough is entitled to continue to litigate T. Hunt s appeal until final judgment in the Office of Administrative Law, this Court would have to respect both the appellate court s determination as well as the OAL s judgment. (14) Furthermore, if the OAL subsequently resolves T. Hunt s administrative appeal, Plaintiffs suit would not be able to proceed as currently framed. Consequently, the Court dismisses Plaintiffs Amended Complaint without prejudice and with leave to refile following either (i) the Appellate Division s affirmance of T. Hunt s withdrawal of his administrative appeal; or (ii) final determination of T. Hunt s administrative appeal by the OAL. 6

7 Case 1:12-cv JEI-AMD Document 46 Filed 12/20/13 Page 7 of 7 PageID: 1397 Accordingly, IT IS on this 20th day of December, 2013, ORDERED THAT: All pending motions (Dkt. Nos. 13, 14, 23, and 39) are DENIED WITHOUT PREJUDICE. Plaintiffs Amended Complaint (Dkt. No. 35) is DISMISSED WIHTOUT PREJUDICE with leave to re-file pending resolution of the parties ongoing state litigation. /s/ Joseph E. Irenas Joseph E. Irenas, S.U.S.D.J. 7