RODSAN et al v. BOROUGH OF TENAFLY et al
Filing
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OPINION granting Defendants' motions for summary judgment (Doc. Nos. 25 and 26) and denying Plaintiffs' cross-motion for leave to file an amended complaint (Doc. No. 34). Signed by Magistrate Judge Michael A. Shipp on 6/30/11. (NR)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
PETER RODSAN, et al.,
:
:
Civil Action No. 10-1923 (MAS)
Plaintiffs,
:
:
v.
:
OPINION
:
BOROUGH OF TENAFLY, et al.,
:
:
Defendants.
:
____________________________________:
SHIPP, Michael A., United States Magistrate Judge
This matter comes before the Court by way of Defendants Borough of Tenafly (the
“Borough”) and Frank J. Mottola, Jr.‟s (“Mottola”) motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) or, in the alternative, for summary judgment
pursuant to Federal Rule of Civil Procedure 56(b) (“Rule 56(b)”). (Docket Entry Number (“Doc.
No.”) 26 (“Borough‟s Moving Br.”).) The Board of Adjustment of the Borough of Tenafly (the
“Board”) and Benny Lorenzo (“Lorenzo”) (the Borough, Mottola, Board and Lorenzo,
hereinafter, collectively referred to as “Defendants”) similarly filed a motion for summary
judgment. (Doc. No. 25 (“Bd.‟s Moving Br.”).) Plaintiffs Peter Rodsan, Marta Gena Rodsan
and Jacob Rodsan (“Jacob”) (collectively “Plaintiffs” or the “Rodsans”) oppose both motions for
summary judgment (Doc. No. 32. (“Pls.‟ Opp‟n Br.”); Doc. No. 33 (“Pls.‟ 2d Opp‟n Br.”)),
while simultaneously filing a cross-motion for leave to amend the Complaint. (Doc. No. 34
(“Pls.‟ Moving Br.”).) The Board and Lorenzo oppose Plaintiffs‟ cross-motion. (Doc. No. 38
(“Bd.‟s Opp‟n Br.”).)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court shall decide the motion on
the papers. As such, Plaintiffs‟ request for oral argument is denied. For the reasons set forth
below, and for other good cause shown, Defendants‟ motions for summary judgment are
GRANTED. Plaintiffs‟ cross-motion for leave to amend the Complaint is DENIED.
I.
BACKGROUND
Plaintiffs reside at 59 East Clinton Avenue in Tenafly, New Jersey, which is also known
as Lot 17, Block 1709 on the Borough‟s tax map. (Doc. No. 1 (“Compl.”) 2, ¶ 2.) Jacob Rodsan
is physically disabled and, as such, the Rodsans‟ procured several variances that were approved
by the Board, which permitted them to construct an addition and elevator to their house in order
to accommodate Jacob‟s disability. (Id. at 2, ¶¶ 4-5; Borough‟s Moving Br. 1; Pls.‟ Opp‟n Br.
1.) Mottola, the Borough‟s Zoning Official, however, denied the Rodsans‟ request to use their
detached garage as a pool cabana, asserting that it was an accessory use that violated the
Borough‟s Code. (Compl. 2, ¶¶ 6-9; Borough‟s Moving Br. 1; Pls.‟ Opp‟n Br. 1.) Plaintiffs
appealed Mottola‟s decision, while simultaneously filing for a variance, which the Board denied
after conducting several hearings. (Compl. 4, ¶¶ 2, 7-8.)
Plaintiffs subsequently filed a complaint in the Superior Court of New Jersey on
December 10, 2008 against all Defendants except Lorenzo, the Board‟s Chairman, alleging that
the Board‟s denial of Plaintiffs‟ request for a zoning variance was arbitrary and capricious, and
that Defendants had engaged in discriminatory behavior towards Plaintiffs in violation of state
and federal law. (Borough‟s Moving Br. 2, 4.) Specifically, the state Complaint included the
following allegations:
Defendants . . . cited Plaintiffs for numerous alleged [zoning code] violations as
part of a plan and scheme to harass and discriminate against the Plaintiffs. . . .
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The conduct of the Defendants has been undertaken in violation of State and
Federal law protecting the rights of handicapped individuals.
The Defendants have engaged in a course of deliberate, harassing and
discriminatory conduct against the Plaintiffs. . . .
The . . . conduct of the Borough of Tenafly, Defendant Zoning Board of
Adjustment and Mottola has been undertaken in violation of State Law, State and
Federal Constitutions . . . .
(Id. at 4, quoting Doc. No. 26-4 (“Ritvo Cert.”) Ex. A (“State Compl.”) ¶¶ 10, 12-13.) The
Borough‟s and Mottola‟s answer and affirmative defenses to the state complaint expressly deny the
aforementioned allegations and set forth the following affirmative defenses: (1) Plaintiffs‟ failure
to state a cause of action upon which relief may be granted; (2) Plaintiffs‟ failure to comply with
the New Jersey Tort Claims Act notice requirements; and (3) immunity pursuant to New Jersey
law. (Doc. No. 26-3 (“McClure Cert.”) Ex. B (“Borough‟s Answers to State Compl.”) 1-3.)
Notably, Plaintiffs‟ state complaint demands judgment declaring, in part, that the denial of
Plaintiffs‟ variance application and the conduct of the Board, Borough and Mottola be declared
“arbitrary, capricious and unreasonable, in violation of State Law and Federal Law and the State‟s
and Federal Constitutions and should be set aside.” (State Compl. Wherefore Clause a.)
Significantly, counsel for Plaintiffs signed and dated a Stipulation of Dismissal of the
Borough and Mottola without prejudice, which was dated February 27, 2009, and sent to the
aforementioned parties on March 3, 2009. (Doc. No. 29 (“Piekarsky Cert.”) ¶ 2, Ex. A
(“Stip.”).) The Stipulation of Dismissal was never signed by Defendants or entered by the lower
court. (See id.) A case management conference was subsequently held on April 28, 2009,
resulting in entry of a case management order, which includes Plaintiffs‟ allegations concerning
violations of state and federal laws and the New Jersey and United States Constitutions in the
“Statement of Action” section. (McClure Cert. Ex. C (“Case Management Order”) ¶ 2;
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Piekarsky Cert. ¶ 4.) Counsel for the Borough and Mottola did not appear at the conference.
(Piekarsky Cert. ¶ 4.) Also, the Borough and Mottola did not submit a trial brief in preparation
for the trial proceedings. (Id. at ¶ 5.)
On September 11, 2009, a one-day bench trial was held, and, while the Borough and
Mottola were dismissed, judgment on the claims filed against the Board was reserved.
(Borough‟s Moving Br. 2, 5; Ritvo Cert. Ex. B (“N.J. Super. Opinion”) 2, Ex. C (“Order for
Judgment”) 1.) After a full trial, on October 27, 2009, the Superior Court entered an Order for
Judgment, confirming that all claims against the Borough and Mottola were dismissed at the time
of the hearing and dismissing all claims asserted against the Board with prejudice. (Borough‟s
Moving Br. 2; Order for Judgment 1-2.) Plaintiffs appealed the decision to the New Jersey
Appellate Division, which was denied on July 12, 2010. (Borough‟s Moving Br. 2-3; Ritvo Cert.
Ex. F. (“N.J. App. Div. Opinion”).) In describing the underlying action, the Appellate Division
noted that the lower court “dismissed plaintiff‟s complaint with prejudice and without costs.”
(N.J. App. Div. Opinion 7.) Similarly, on October 7, 2010, Plaintiffs‟ petition for certification to
the Supreme Court of New Jersey was denied. (Borough‟s Moving Br. 3; Ritvo Cert. Ex. G
(“Order on Pet. for Cert.”).)
After the New Jersey Supreme Court denied certification, on April 15, 2010, Plaintiffs filed
a Complaint in this Court, which alleges the following: (1) constructive seizure of Plaintiffs‟
property without compensation in violation of 42 U.S.C. § 1983; (2) violation of the equal
protection clause of the Fourteenth Amendment of the United States Constitution; (3) violation of
the due process clause of the Fourteenth Amendment of the United States Constitution; (4)
unlawful discrimination amounting to conspiracy to interfere with civil rights and equal protection
in violation of 42 U.S.C. § 1985; (5) neglecting to prevent violations of 42 U.S.C. § 1983; (6)
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seizure of property without just compensation in violation of the Fifth and Fourteenth Amendments
of the United States Constitution; (7) violation of procedural due process under the Constitution of
the State of New Jersey; (8) unlawful discrimination in violation of N.J. Stat. Ann. §§ 10:5-12.5.
(See generally Compl.) Additionally, Plaintiffs‟ proposed amended Complaint seeks to add a ninth
cause of action for selective enforcement in violation of 42 U.S.C. § 1983. (See Doc. No. 34-2
(“Proposed Amend. Compl.”); Pls.‟ Opp‟n Br. 2.)
II.
DISCUSSION
A.
Defendants’ Motion for 12(b)(6) Dismissal or, in the Alternative, for
Summary Judgment
Defendants seek the dismissal of Plaintiffs‟ Complaint in its entirety pursuant to Rule
12(b)(6). In the alternative, Defendants seek an award of summary judgment pursuant to Rule
56(b).
1.
Relevant Legal Standards
a.
Rule 12(b)(6) Dismissal Standard
As a defense, a party may move to dismiss a complaint by asserting the non-moving
party‟s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
However, when a responsive pleading is required, such as an answer to a complaint, any motion
asserting such a defense must be made prior to filing an answer or other response. See id.
Moreover, if, in deciding a Rule 12(b)(6) motion to dismiss, a court is inclined to review and
consider evidence beyond the initial pleadings, the motion is converted into a summary judgment
motion and the Federal Rule of Civil Procedure 56(c) legal standard applies.
Based on the aforementioned, the Court finds that Defendants‟ motion to dismiss pursuant
to Rule 12(b)(6) is untimely and/or must be converted into a summary judgment motion.
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b.
Summary Judgment Standard
Summary judgment is appropriate where “there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An
issue is genuine if there is sufficient evidentiary support such that “a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material if it has the ability to “affect the outcome of the suit under governing law.”
Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Disputes over irrelevant or
unnecessary facts will not preclude a court from granting summary judgment.
The party moving for summary judgment has the initial burden of proving an absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). If the nonmoving party bears the burden of proof at trial, the movant may discharge its burden by pointing
to an absence of evidence necessary to support the non-movant‟s claim. Id. at 325.
Alternatively, a moving party may submit affirmative evidence that negates a material element of
the non-moving party‟s claim. Id. If the movant brings such affirmative evidence, or makes a
showing that the non-movant lacks evidence essential to its claim, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed. R.
Civ. P. 56(e); Celotex, 477 U.S. at 324. The burden of persuasion, however, rests ultimately on
the non-moving party to establish each element necessary to succeed on the claims on which it
bears the burden of proof at trial. Celotex, 477 U.S. at 322.
To decide whether a genuine issue of material fact exists, the Court must consider all
facts, drawing all reasonable inferences in a light most favorable to the non-moving party.
Kaucher, 455 F.3d at 423. However, on a motion for summary judgment, “the judge's function
is not . . . to weigh the evidence and determine the truth of the matter but to determine whether
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there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Absent a genuine issue for trial,
summary judgment as a matter of law is proper.
c.
Full Faith and Credit Statute
Under the federal Full Faith and Credit Statute, 28 U.S.C. Section 1738, records and/or
judicial proceedings in any state court, if properly authenticated, “shall have the same full faith
and credit in every court within the United States . . . as they have by law or usage in the courts
of such State . . . from which they are taken.” Accordingly, when considering the preclusive
effect that a state judgment may have on a federal matter, the court must consider the Full Faith
and Credit Statute and the rulings of the relevant state court. Dowdell v. Univ. of Med. &
Dentistry of N.J., 94 F. Supp. 2d 527, 533 (D.N.J. 2000). More specifically, when assessing the
effect that a state judgment has on a federal proceeding, “[f]ederal courts may not employ their
own rules . . . in determining the effect of state judgments, but must accept the rules chosen by
the State from which the judgment is taken.” Id. (omitting quotation and citation). Here, in
order to consider the preclusive effect of the underlying state court judgment, if any, the Court
must consider and assess the applicable New Jersey law.
Significantly, pursuant to New Jersey law, a claim is considered to have been litigated if
it was properly raised in the pleadings or other court filings. Velasquez v. Franz, 123 N.J. 498,
506-07 (1991) (“claims that are actually litigated and determined before trial also are barred from
being relitigated,” even if the judgment does not “pass directly on the substance of a claim.”
(internal citation omitted)). Further, “[a] dismissal with prejudice „constitutes an adjudication
on the merits as fully and completely as if the order had been entered after a trial.‟” Dowdell, 94
F. Supp. 2d at 533 (citation omitted). Also, whether a claim is precluded is premised upon the
judgment and not “the underlying rationale of the decision . . . .” Id.
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Finally, it is important to note that when considering whether a claim is precluded
pursuant to the Full Faith and Credit Statute, this Court has held that the same rules applied to
general civil claims are also applicable to Section 1983 civil rights claims. Heir v. Del. River
Port Auth., 218 F. Supp. 2d 627, 632 (D.N.J. 2002) (where a full condemnation award was
granted in a state proceeding and was not appealed, finding that any Fifth Amendment takings
claim in federal court was precluded under New Jersey‟s entire controversy doctrine); Rhodes v.
Twp. of Saddle Brook, 980 F. Supp. 777, 781 (D.N.J. 1997) (precluding plaintiffs‟ federal
counterclaim of civil rights violations under the entire controversy doctrine, because the state
court proceedings dealt with the constitutionality of a city ordinance and plaintiffs, although
having had a fair opportunity to raise such a counterclaim, failed to assert same).
d.
Res Judicata/Claim Preclusion/Issue Preclusion
The res judicata doctrine “contemplates that when a controversy between parties is once
fairly litigated and determined it is no longer open to relitigation.” Culver v. Ins. Co. of N. Am.,
115 N.J. 451, 460 (1989) (quotation and citation omitted). “Where the second action is no more
than a repetition of the first, the first lawsuit stands as a barrier to the second. The rule precludes
parties from relitigating substantially the same cause of action.” Id. (quotation and citation
omitted). Stated differently, res judicata is “the general notion that a prior lawsuit has a
preclusive effect in a future action between the parties who litigated the prior case . . . .” Peduto
v. City of N. Wildwood, 696 F. Supp. 1004, 1006 (D.N.J. 1988) (finding that the doctrines of res
judicata and preclusion barred plaintiffs‟ federal takings and due process claims, because the
state court decided constitutional issues related to the sewer moratorium and construction ban in
dispute and relitigation of same would be contrary to law); see Ward v. Vill. of Ridgewood, 531
F. Supp. 470, 475 (D.N.J. 1982) (where a party claimed a deprivation of property rights resulting
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from the denial of an application to develop his property, holding, “the first judgment precludes
the assertion of a § 1983 claim in a later suit . . . .”).
Importantly, much like the Full Faith and Credit Statute, a court examining a preclusion
issue must apply the preclusion law of the jurisdiction from which the original claim was heard.
Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 135 (3d Cir. 1999); Tancrel v. Mayor of
Twp. of Bloomfield, 583 F. Supp. 1548, 1551 (D.N.J. 1984) (“The question, then, is whether
plaintiff could have raised his federal claims in the state action, and whether state claim
preclusion doctrines would now bar him from raising those claims in the state court.”). The
doctrine of claim preclusion disallows a second court from considering claims or matters that
should have been litigated in an underlying action, while also serving to prohibit the second
court‟s consideration of “matters stemming from the same claim[s] that have been litigated.”
Peduto, 696 F. Supp. at 1007 (citation omitted). Issue preclusion, “refers to the effect of a
judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also
is referred to as direct or collateral estoppel.” Id. (citation omitted). Notably, issue preclusion and
collateral estoppel fall under the umbrella of res judicata. Dowdell, 94 F. Supp. 2d at 535 n.7.
Indeed, collateral estoppel, or “[i]ssue preclusion requires a similar, yet less demanding, analysis
than res judicata or claim preclusion.” First Union Nat. Bank v. Penn Salem Marina, Inc., 190
N.J. 342, 352 (2007). Under issue preclusion, “the relitigation of issues actually adjudicated, and
essential to the judgment in a prior litigation between the same parties” is barred. Peduto, 696 F.
Supp. at 1007.
Regarding claim preclusion, New Jersey imposes a three-prong test to determine the
applicability of the doctrine:
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(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.
Sutton v. Sutton, 71 F. Supp. 2d 383, 390 (D.N.J. 1999) (quotation and citation omitted) (barring
a plaintiff‟s federal claims regarding an estate, because although reframed as federal questions,
they could and should have been brought in the state proceedings, which dealt with plaintiff‟s
initial complaint against the settlement and accounting of the same estate); see also Dowdell, 94
F. Supp. 2d at 536; Peduto, 696 F. Supp. at 1004-08.
With regard to whether an action involves the same parties or persons in privity with the
same parties in the prior action, the word “privity” requires demonstration that the relationship
between a named party and another person or entity is “close enough” to include the latter for
preclusion purposes. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 338 (N.J. 1996) (quoting
Bruszewski v. United States, 181 F.2d 419, 423 (3d Cir. 1950) (Goodrich, J., concurring)). “A
relationship is usually considered „close enough‟ only when the party is a virtual representative
of the non-party, or when the non-party actually controls the litigation.” Id. (quoting Collins v.
E.I. DuPont de Nemours & Co., 34 F.3d 172, 176 (3d Cir. 1994) (applying New Jersey law)).
Further, the determination of whether a subsequent suit is based on the same overall
transaction that was the basis for a prior proceeding, “turn[s] on the essential similarity of the
underlying events giving rise to the various legal claims.” Dowdell, 94 F. Supp. 2d at 536
(quoting Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999)). Specifically, it requires a
determination on the following:
“whether the acts complained of were the same, whether the material facts alleged
in each suit were the same, and whether the witnesses and documentation required
to prove such allegations were the same.” . . . The fact that “the acts complained
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of [are] the same and that the evidence at [a federal] trial would [be] the same”
necessitate a finding that this action and the state action are identical.
Id. at 540 (quoting United States v. Athlone Indus., 746 F.2d 977, 984 (3d Cir. 1984) and
Churchill, 183 F.3d at 195) (precluding a plaintiff‟s Title VII claims because the federal claims
derived from the same allegations and facts relied upon during the state action and, as such, the
NJLAD and Title VII claims could and should have been consolidated in the state action.
Plaintiff‟s “failure to pursue his federal claims diligently and the mandates of the doctrine of
claim preclusion require this Court to dismiss each of Dowdell‟s remaining Title VII claims.”).
e.
Entire Controversy Doctrine
The entire controversy doctrine is an equitable remedy, which “application is left to
judicial discretion based on the particular circumstances inherent in a given case.” Rhodes, 980
F. Supp. at 783 (quotation and citation omitted). Under the doctrine, a party “who fails to allow
the trial court the opportunity to supervise the entire controversy risks losing the right to bring
that claim later.” Id. (quotation and citation omitted). As previously recognized by this Court,
the underlying purposes of the entire controversy doctrine under New Jersey law include: “(1)
avoidance of piecemeal litigation through complete consideration of interrelated claims; (2)
fairness to the parties in the action as well as to those possessing a material interest in its
outcome; and (3) efficiency and economy.” Dowdell, 94 F. Supp. 2d at 534 (citations omitted).
When considering fairness to the parties, “a court must consider whether the claimant had a „fair
and reasonable opportunity to have fully litigated the claim in the original action.‟” Heir, 218 F.
Supp. 2d at 633 (citation omitted).
Significantly, the underlying premise of the entire controversy doctrine is that “the court
must dismiss a claim that was or could have been raised previously as precluded.” Robertson v.
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Bartels, 148 F. Supp. 2d 443, 448 (D.N.J. 2001); Tancrel, 583 F. Supp. at 1551 (barring civil
rights claims under the New Jersey entire controversy doctrine and claim preclusion, because the
claims could have been simultaneously asserted in the initial action and plaintiff, thus, had a full
and fair opportunity to pursue other claims than those asserted). Whether a claim should have
been included in a prior action is dependent upon when the claim accrued, which is determined
by considering “when a plaintiff knows or should know of the facts underlying his claim, not
when he understands the legal consequences of those facts.” Rhodes, 980 F. Supp. at 787.
Notably, where a party could or should have raised claims in an original state action, this Court
must apply the entire controversy doctrine to assess whether the claims must be barred, “even
when the withheld component is a separate and independently cognizable cause of action.”
Dowdell, 94 F. Supp. 2d at 534 (quoting Paramount Aviation Corp., 178 F.3d at 137); Heir, 218
F. Supp. 2d at 633-34 (pursuant to the Full Faith and Credit Statute, federal courts must apply the
entire controversy doctrine if the claims should have been pursued during the state proceedings).
Notably, the doctrine is divided into two separate aspects: (1) claims joinder and (2) party
joinder. Rhodes, 980 F. Supp. at 781. Under the claims joinder aspect of the doctrine, a party is
required to “present all affirmative claims and defenses arising out of a controversy.” Id.
(citation omitted). Stated differently, the doctrine requires the joinder of all claims that arise
from a larger, single transaction that is the underlying dispute in a lawsuit. Dowdell, 94 F. Supp.
2d at 535 (citing DiTrolio v. Antiles, 142 N.J. 253, 271 (1995)). A “commonality of legal issues”
is not necessary for the doctrine to apply, but “[r]ather, the determinative consideration is
whether distinct claims are aspects of a single larger controversy because they arise from
interrelated facts.” Id. Regarding the party joinder aspect, there is a “mandatory joinder of all
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parties with a material interest in a controversy.” Rhodes, 980 F. Supp. at 781. This aspect is
necessary, because:
the commonality of purposes in both the party joinder and claims-joinder rules
indicates that they are conceptual subsets of the entire controversy doctrine.
Thus, to the extent possible courts must determine an entire controversy in a
single judicial proceeding and that such a determination necessarily embraces not
only joinder of related claims between the parties but also joinder of all persons
who have a material interest in the controversy.
Id. at 782 (quotation and citation omitted). Whether a person or entity has a material interest is
dependent on whether that person or entity “can affect or be affected by the judicial outcome of a
legal controversy.” Id.
Finally, “it should be noted that the New Jersey entire controversy doctrine, as an
„application of traditional res judicata principles . . . [and] an aspect of the substantive law of New
Jersey,‟ requires this Court to enforce the doctrine in hearing a federal claim as well.” Dowdell, 94
F. Supp. 2d. at 535 (quoting Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 887 (3d Cir.
1997). The doctrine, however, does not bar claims that are “unknown, unarisen, or unaccrued at
the time of the original action.” Murray v. Crystex Composites LLC, 618 F. Supp. 2d 352, 358
(D.N.J. 2009) (citation omitted). Likewise, a court may refrain from applying the doctrine if
invoking it “would result in significant unfairness or jeopardy to a clear presentation of the issues
and just result.” Rhodes, 980 F. Supp. at 783 (quotation and citation omitted).
2.
Parties’ Legal Arguments
Here, Defendants assert that the prior judgment of the state trial court precludes Plaintiffs
from bringing their claims, because the claims arise out of the same set of facts that were
litigated in the state trial court proceedings. (Bd.‟s Moving Br. at 7-8; Borough‟s Moving Br. at
9-11.) More specifically, Borough and Mottola assert that Plaintiffs‟ claims are barred under the
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Full Faith and Credit Statute and the doctrines of claim preclusion and res judicata, because the
state court dismissed the claims asserted against them at the very outset of the trial proceedings.
(Borough‟s Moving Br. 8, 10-11.) Since the “dismissal was not expressly done „without
prejudice,‟” Borough and Mottola argue that the underlying reasons for the dismissal are not
relevant and that the dismissal was granted on the merits. (Id.) Further, with the exception of
Lorenzo, the parties in this matter are identical to those in the state action. (Id. at 10.) The
Borough and Mottola assert that Lorenzo is an “immaterial exception,” as he was the Board
Chairman during the hearing on the Rodsans‟ variance application. (Id.) Accordingly, the
Borough and Mottola assert that, because the same claims were asserted in state court, Plaintiffs‟
claims in this federal action must be barred, as they “had their day in state court . . . a venue in
which they, themselves, chose.” (Id. at 10-11.)
Finally, regarding the Sixth and Eighth Counts in Plaintiffs‟ Complaint, the Borough and
Mottola contend that the claims are precluded by the entire controversy doctrine. (Id. at 12.)
The Sixth Count claims that Defendants unlawfully seized the property without just
compensation and the Eighth Count alleges violation of the New Jersey Law Against
Discrimination. (Id.) Because the aforementioned claims “unquestionably arise out of the very
same operative facts upon which the plaintiffs based their other claims in the state court
proceeding,” the Borough and Mottola argue, the claims must be barred under the entire
controversy doctrine, as such claims should have been pursued in the state action. (Id.)
Similarly, the Board and Lorenzo argue that Plaintiffs‟ claims are barred by the entire
controversy, res judicata, claim and issue preclusion and collateral estoppel doctrines, asserting
that “all issues set forth before this Court were briefed, tried and mentioned at the trial court
level, at the appellate level and raised again by Plaintiffs at the Supreme Court level.” (Bd.‟s
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Moving Br. 2, 5.) Specifically, the Board and Lorenzo assert that Counts 2, 3, and 8 were
litigated in state court and, as such, are barred by the entire controversy doctrine and claim
preclusion. (Id. at 6.) Regarding Counts 1, 4, 5, 6, and 7, they argue that the claims are barred
by the doctrines of res judicata, collateral estoppel and issue preclusion.1 (Id.) Also, any claims
alleging discrimination as a result of Defendants‟ failure to advise Mr. Rodsan about the site
inspection, the Board and Lorenzo argue, were raised and addressed in the proceedings below
and, as such, must be precluded. (Id. at 10.)
Finally, the Board and Lorenzo argue that because Plaintiffs, in their initial appeal to
Mottola‟s denial, failed to argue “extreme” and financial hardship if required to convert the
structure back to its traditional use of a garage, any claim related to such assertions must be
precluded as Plaintiffs failed to exhaust their administrative remedies on this issue. (Id. at 9.)
The Board and Lorenzo explain that there are no supporting facts on the record that the
Defendants ever requested that the ramp required modification and, because such issues should
have been previously raised, they are now precluded. (Id.)
Plaintiffs vehemently disagree with Defendants‟ arguments, countering that the only
claim fully adjudicated in the prior litigation was whether the Board‟s denial of the zoning
variance was proper, based on an “arbitrary, unreasonable and capricious standard.” (Pls.‟
Opp‟n Br. 2, 6-7.) “The discrimination, civil rights and selective enforcement claims need to be
1
While counsel for the Board and Lorenzo initially assert that Counts 2, 3, and 8 were litigated
in state court, later in the brief the contention is changed to assert that Counts 1, 2, 3, 4, 5, 6, and
8 were actually litigated and decided below and Counts 1, 4, and 5 could have or should have
been brought forth in the state proceedings but were not. (Bd.‟s Moving Br. 8.) To add further
confusion, counsel concludes that Counts 1, 4, 5, 6, and 7 could have been brought in the state
proceedings but were not. (Id.) Thus, it is unclear what assertions counsel is making with regard
to what claims were in fact litigated versus those claims that should have been included and are,
therefore, precluded. Regardless, the Court will address all asserted claims in its analysis below.
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litigated under a de novo „preponderance of the evidence‟ standard with all Defendants
involved.” (Id. at 2.) Plaintiffs state that because the Board was the only Defendant involved in
the trial, Plaintiffs have not had the chance to press their claims against the remaining
Defendants. (Id. at 7.) Plaintiffs conclude that they have not had their day in court for these civil
rights issues, and that even if the trial court had reached the civil rights issues, the standard of
review used by the trial court would have been inappropriate. (Id.)
Plaintiffs further contend that Defendants‟ description of their dismissal in the state
proceeding is misleading, because the parties stipulated to dismissing the Borough and Mottola
without prejudice on or about February 27, 2009. (Id. at 3.) “For an unknown reason, a formal
Stipulation was never executed and filed,” but, according to Plaintiffs, Defendants were aware
that the dismissal was without prejudice. (Id.) Likewise, Plaintiffs contend that although true
that their state trial brief did not include arguments concerning the civil rights and discrimination
claims, the dismissal was not related to the trial brief and “nothing in the record [exists] to
suggest or prove” otherwise. (Id.) According to Plaintiffs, the record of the state proceedings
supports their assertion that Defendants were aware of their voluntary dismissal without
prejudice as early as April 2009, when the lower court entered a Case Management Order that
did not list any of the Defendants, except the Board, as parties to the action. (Id.) Plaintiffs
support this contention by highlighting the following testimony made on the record during the
prerogative writ hearing:
Mr. Piekarsky: [I] don‟t think we need Mr. McClure here. I thought my associate
had stip‟d him out and stip‟d the town out on the prerogative writ matter. This
was a discussion Mr. McClure and I [had] some time ago. So for purposes of
prerogative – this prerogative writ matter, I don‟t need him and his clients in this
case, and I dismiss them on this case.
(Id. at 3-4, quoting Piekarsky Cert., Ex. B (emphasis in Pls.‟ Opp‟n Br.).) Plaintiffs contend that
16
Mr. McClure must have agreed, because he left the hearing thereafter. Thus, Plaintiffs argue, the
court officially dismissed Borough and Mottola based on counsel‟s representation that they had
been voluntarily dismissed long ago, based on the stipulation that expressly stated that dismissal
was “without prejudice.” (Pierkarsky Cert. ¶¶ 2-7.)
Regarding Defendants‟ Full Faith and Credit Statute, claim preclusion and res judicata
arguments, Plaintiffs assert that the doctrines are inapplicable and do not preclude Plaintiffs‟
claims. (Pls.‟ Opp‟n Br. 5.) First, Plaintiffs argue, although Defendants were not officially
dismissed until the day of the prerogative writ hearing, all Defendants except the Board “were
dismissed without prejudice from the state matter almost six months before the hearing.” (Id.)
Plaintiffs assert this proposition by referring to the February 27, 2009 stipulation that expressly
dismissed the Borough and Mottola “without prejudice,” coupled with the fact that their attorney
was not present at the April 28, 2009 Case Management Conference, which specifically related
to the briefing schedule for trial briefs and the commencement date of the trial. (Id.) Finally, the
September 11, 2009 hearing, according to Plaintiffs, only involved the Board, and, as such, the
decision does not address the Borough‟s or Mottola‟s legal arguments. (Id.) In fact, Plaintiffs
argue, counsel for the Borough and Mottola admitted that his “clients were not parties to the
action at the time of the entry of judgment . . . .” (Id., quoting Piekarsky Cert., Ex. C (emphasis
added by Plaintiffs).)
As such, Plaintiffs assert that it was clear to the Borough and Mottola that, long before
the hearing, their dismissal was without prejudice. (Id.) Plaintiffs, therefore, take the position
that the Full Faith and Credit Statute is inapplicable, because a judgment on the merits in favor of
the Borough and/or Mottola was never entered. (Id.) As the parties disagree on the
17
characterization of the facts leading up to the dismissal of the Borough or Mottola, Defendants‟
summary judgment motions, Plaintiffs contend, must be denied. (Id. at 5-6.) Plaintiffs explain:
There is a lack of any evidence in the record to suggest either the moving
Defendants were dismissed with prejudice by the Court or evidence to suggest the
state court judgment was entered in favor of the moving defendants. Furthermore,
common sense dictates that judgment cannot be entered against
individuals/entities not parties to an action. Metaphysical doubt is the only
avenue the moving Defendants have to support their allegations.
(Id. at 6.)
Similarly, Plaintiffs contend that the doctrines of res judicata and/or the entire
controversy doctrine are equally inapplicable in this matter. (Id.) Regarding res judicata,
Plaintiffs assert that because the hearing pertained to whether the Board‟s decision was arbitrary,
unreasonable and capricious, the Court never reached the discrimination, civil rights or selective
enforcement claims. (Id. at 6-7.) As such, Plaintiffs argue that they “did not have a full and fair
opportunity to litigate the civil rights and discrimination claims based on a fair standard that
reviews all the evidence de novo and without giving deference to an agency‟s decision, which
may have been based on improper motives.” (Id.)
Finally, with regard to the Board and Lorenzo‟s motion for summary judgment, Plaintiffs
largely adopt the arguments set forth in their opposition to the Borough and Mottola‟s motion,
asserting that the Defendants‟ arguments are substantially similar. (Pls.‟ 2d Opp‟n Br. 1.)
Regarding the assertion that Defendants never held that an alteration to the ramp was necessary,
however, Plaintiffs express disconcert, because the Board approved the ramp in March 2008 and,
six months later, “in essence, told Plaintiffs [to] get rid of the ramp, knowing that it is the sole
means of egress and ingress into their home for their disabled son. The denial of the variance
application in 2008 effectively meant that the ramp would have to be removed.” (Id. at 1-2.)
18
Accordingly, Plaintiffs assert that they did, in fact, exhaust their administrative remedies. (Id. at
2.) Plaintiffs conclude that granting summary judgment would be inappropriate, as there are
genuine issues of material fact regarding whether Plaintiffs had a full and fair opportunity to
litigate their claims. (Id.) This is particularly true, Plaintiffs contend, when considering the use
of an “arbitrary, unreasonable, capricious” standard coupled with the new evidence Plaintiffs
discovered after the prerogative writ matter. (Id.)
Counsel, Mr. McClure, who represents the Borough and Mottola, however, strongly
objects to Plaintiffs‟ characterization of the dismissal of the Borough and Mottola. (Doc. No. 36
(“McClure Reply Cert.”) ¶ 2.) Regarding the unsigned proposed stipulation dismissing the
Borough and Mottola without prejudice, counsel certifies that he telephonically advised
Plaintiffs‟ counsel that he could not agree to a dismissal without prejudice, which was
contemporaneously included in counsel‟s time and billing records. (Id. at ¶¶ 3-4, Ex. A
(“5/29/09 Invoice”) (entry on April 9, 2009, indicating that counsel advised Plaintiffs‟ counsel,
Mr. Piekarsky, that the Borough and Mottola could “not agree to a dismissal „without
prejudice‟”).) This, according to Mr. McClure, explains why only Plaintiffs‟ counsel appears on
the proposed stipulation. (Id. at ¶ 3.) Mr. McClure explains that he would have never agreed to
dismiss his clients without prejudice, because Plaintiffs failed to serve the Borough with a
“Notice of Tort Claim,” which is a procedural defect that precludes such a claim. (Id. at ¶ 5.)
Accordingly, counsel asserts that “[i]t would make absolutely no sense for the Borough to agree
to a dismissal „without prejudice‟ so as to allow the plaintiffs to cure their fatal failure to serve a
Notice of Tort claim.” (Id.)
Counsel for the Borough and Mottola further clarifies that the reason he did not attend the
case management conference was not because he believed his clients had been dismissed, but
19
rather, he had a trial in a different matter scheduled on the same day the conference was initially
scheduled. (Id. at ¶ 6.) While the conference was rescheduled to April 28, 2009, Mr. McClure
was unaware of the change in schedule, thereby explaining his absence. (Id. at ¶ 7.) Next,
regarding the Borough and Mottola‟s failure to file a trial brief, Mr. McClure explains that this
was a result of the trial court previously ordering “that any claims not addressed in the plaintiffs‟
trial brief would be deemed abandoned.” (Id. at ¶ 8.) Since Plaintiffs‟ trial brief failed to
address their claims against the Borough or Mottola, there was no need to submit a brief on
behalf of the aforementioned Defendants. (Id. at ¶ 9.) Finally, Mr. McClure argues that he
appeared at the September 11, 2009 trial because his clients remained parties to the litigation.
(Id. at ¶ 10.) Once the court dismissed the claims against the Borough and Mottola, “without any
stipulation that the dismissal was to be „without prejudice,‟” Mr. McClure left, and a judgment
disposing of the entire matter “with prejudice” was subsequently entered. (Id. (emphasis in
McClure Reply Cert.).)
Similarly, the Board and Lorenzo vehemently oppose Plaintiffs‟ opposition to their
motion, citing to various facts set forth in the state court pleadings. (Doc. No. 35 (“Bd.‟s Reply
Br.”) 1-3.) Because a judgment was entered in favor of Defendants in the state proceeding, and
the claims set forth in the state complaint were litigated and decided, the Board and Lorenzo
assert that Plaintiffs‟ Complaint must be precluded, because this federal matter is premised upon
the same factual allegations set forth in those underlying proceedings. (Id. at 3.) As for
Plaintiffs‟ assertion that they exhausted their administrative remedies regarding their claim
pertaining to the ramp, the Board and Lorenzo again disagree. (Id. at 3-4.) According to the
Board and Lorenzo, there is no evidence on the record to support the contention that Defendants
sought deconstruction of the ramp. (Id. at 4.) “In fact, the position of the Board of Adjustment
20
of the Borough of Tenafly is that the ramp was approved and is a validly existing approval dating
back to the original approval for expansion of the home in March of 2008,” as supported by the
Board‟s Resolution and the attached plans. (Id.) Tellingly, the Board and Lorenzo note, the
Resolution denying the use of the garage as a cabana does not make any reference to the ramp or
removal of same. (Id.)
3.
Analysis
Having carefully reviewed and considered the legal positions asserted by all parties and the
applicable standards of law and case law, the Court finds good cause to grant Defendants‟ motions
for summary judgment. Initially, the Court finds that this matter is ripe for summary judgment
consideration, as there is no genuine issue of material fact, and any disputed facts are immaterial
and would not impact how a reasonable jury would decide under governing law. Even when
drawing all reasonable inferences in favor of Plaintiffs, the Court finds that Defendants have
satisfied their burden of proof and that granting summary judgment is warranted.
More particularly, the Court holds granting Defendants‟ motions for summary judgment
appropriate under the various preclusion doctrines. Pursuant to the Full Faith and Credit Statute,
this court must consider and accept the rulings of the state courts, which, in the instant matter,
include a final judgment that the Board‟s denial of Plaintiffs‟ variance application was not
arbitrary, capricious or unreasonable, denial of an appeal, and denial of certification before the
New Jersey Supreme Court. See Dowdell, 94 F. Supp. 2d at 533.
Based on the facts before this Court, it is clear that a final judgment was entered in favor
of the Defendants. Indeed, the New Jersey Superior Court held a trial to determine whether the
Board properly used its discretion in denying the zoning variance, ultimately holding that the
Board‟s actions were not arbitrary, capricious or unreasonable. The New Jersey Appellate
21
Division later affirmed that decision, and the Supreme Court of New Jersey denied certification.
The judgment entered in the lower court explicitly dismissed the Board “with prejudice.” (Order
for Judgment.) Accordingly, because the pleadings and complaint in the lower court explicitly
included allegations of discriminatory and harassing conduct under both state and federal law
and the New Jersey and United States Constitutions (see State Compl. ¶¶ 10, 12-13, Wherefore
Clause a), the judgment is considered final and on the merits on all asserted claims and
allegations. See Dowdell, 94 F. Supp. 2d at 533 (citation omitted) (a dismissal with prejudice is
considered “an adjudication on the merits as fully and completely as if the order had been
entered after a trial.”).
Thus, Plaintiffs‟ federal claims against the Board are precluded, as such claims stem from
the Board‟s denial of Plaintiffs‟ variance application. See Sutton, 71 F. Supp. 2d at 390.
Likewise, the claims asserted against Lorenzo are equally precluded, because Lorenzo is
certainly in privity with the Board as its Chairman, and he is unquestionably impacted by
Plaintiffs‟ litigation, which makes direct accusations against him in his capacity as the Chairman.
While Lorenzo was not individually listed as a party to the state proceedings, he was clearly
identified throughout the state pleadings and record, and Plaintiffs were well-aware of Lorenzo‟s
position as Board Chairman at the time their application was denied. Indeed, the allegations
against Lorenzo are so closely intertwined with the alleged unlawful actions against the Board
that they are in clear privity with one another. Lorenzo certainly had a material interest in the
underlying dispute and, as such, Plaintiffs should have joined him in the initial lawsuit, as he
could have been affected by the ultimate decision. See Rhodes, 980 F. Supp. at 781-82.
Likewise, the Borough and Mottola also are in privity with the Board. Indeed, Mottola
was the zoning official who initially denied the Rodsans‟ zoning variance, and his discretion fell
22
under the supervisory jurisdiction of the Board. He is a party to this case in his official capacity.
The Borough was the public employer of Mottola and Lorenzo during the state litigation, and
ultimately has final say or authority over the Board. Accordingly, Mottola and the Borough are
“close enough” to the Board to warrant their inclusion for preclusion purposes. See Zirger, 144
N.J. at 338 (quoting Bruszewski, 181 F.2d at 423). The allegations against Mottola and the
Borough arise out of the same set of facts and legal issues litigated at the state trial court level. The
Court is, therefore, satisfied that the parties in this matter were parties in the state action or are
otherwise in privity with the same parties. Having, therefore, found that Lorenzo, the Borough,
and Mottola are in privity with the Board, because a final judgment on the merits was entered in
favor of the Board, it therefore follows that the final judgment and its implications thereof extend
to the aforementioned parties.
Consequently, based on the privity relationship amongst the Defendants, this Court
disagrees with Plaintiffs‟ assertion that the dismissal of the Borough and Mottola prior to the trial
in state court requires a finding that the claims against them were not fully adjudicated. Further,
the Court disagrees that the Borough and Mottola‟s dismissal was “without prejudice” or otherwise
requires a finding that the merits of the claims asserted against these parties were not adjudicated.
While the Borough and Mottola were dismissed at the commencement of the trial or, perhaps,
even prior to the trial, because claims determined prior to trial are equally barred from being
relitigated, the claims against the aforementioned parties must be precluded. See Velasquez, 123
N.J. 506-07.
Significantly, in describing the underlying action, the Appellate Division noted that the
lower court “dismissed plaintiff‟s complaint with prejudice and without costs,” and did not
characterize the dismissal as distinct between or amongst any of the Defendants. (See N.J. App.
23
Div. Opinion 7.) The Appellate Divisions‟ failure to distinguish between the dismissal and
whether it impacts each Defendant differently, lends further support to this Court‟s finding that
the state courts considered all claims to have been dismissed and adjudicated on the merits for all
Defendants. (See id.) Further, while true that Plaintiffs drafted and signed a proposed stipulation
of dismissal without prejudice, the facts are clear that counsel for the Borough and Mottola did
not execute the stipulation, which also was never entered by the state court. Indeed, the clear
evidence of counsel‟s billing records demonstrates that Defendants never intended to file a
stipulation of dismissal without prejudice, due to the implications regarding the New Jersey Torts
Claim Act and Plaintiffs‟ alleged notice deficiencies. (See McClure Cert. ¶¶ 3-4; 5/29/09
Invoice.)
Similarly, the testimony of counsel for Plaintiffs offers further support for this finding, as
he testified specifically during the trial that he was dismissing the Borough and Mottola from this
matter, without specifying that the dismissal was intended to be without prejudice. (See
Piekarsky Cert., Ex. B.) Based on the aforementioned, good cause exists to find that judgment
was entered in favor of all the Defendants. Affording the judgment full faith and credit, the
Court must consider it to be valid, final, and an adjudication on the merits of all claims asserted
against the Defendants. See Dowdell, 94 F. Supp. 2d at 533. Again, as Plaintiffs‟ Complaint in
this matter stems from the underlying state claims that have already been litigated and the
allegations of discriminatory and harassing conduct under state and federal law and constitutions,
it follows that Plaintiffs‟ federal claims are barred.
Also, this Court is not persuaded by Plaintiffs‟ assertion that the state trial court applied
the incorrect standard of review, thereby warranting the litigation of Plaintiffs‟ federal claims.
Indeed, this Court must give full faith and credit to the state court‟s decisions, which include the
24
New Jersey Appellate Court‟s affirmation of the lower court‟s decision, including the use of the
“arbitrary, unreasonable, and capricious standard,” and the Supreme Court‟s denial of
certification. The Court is equally unconvinced by Plaintiffs‟ contention that although their trial
brief failed to address their civil rights and discrimination claims, such a failure does not mean
that they were adjudicated and that the dismissal related to such claims. Again, as previously
stated, because the underlying facts and claims were asserted in the pleadings and a judgment
was subsequently entered, Plaintiffs are precluded from litigating or relitigating such claims.
Finally, even if assuming arguendo that the doctrines of res judicata, claim preclusion or
issue preclusion do not bar Plaintiffs‟ federal claims, the entire controversy doctrine certainly
precludes same, as its applicability “is left to judicial discretion based on the particular
circumstances inherent” in this matter. See Rhodes, 980 F. Supp. at 783 (quotation and citation
omitted). Here, Plaintiffs‟ have taken their claims and allegations through the entire state court
system and continue to seek a favorable judgment regarding the use of their garage as a cabana.
However, under the entire controversy doctrine, Plaintiffs had an affirmative duty to bring all
relevant and related claims before one court in one litigation, if and when such claims are
permitted. See Dowdell, 94 F. Supp. 2d at 534; Rhodes, 980 F. Supp. 2d at 781.
In the instant matter, the Court concludes that Plaintiffs unquestionably could and should
have raised their federal claims during the state action proceedings. Indeed, Plaintiffs‟ federal
claims must be precluded, because they arose from “the same overall transaction” between
themselves and the Defendants and involve the same operative facts addressed in the state court
proceedings, namely, the denial of Plaintiffs‟ variance application. See Dowdell, 94 F. Supp. 2d
at 535. As discussed above, while perhaps Lorenzo was not officially named in Plaintiffs‟ state
25
complaint, because he was the Chief Officer of the Board at the time Plaintiffs‟ application was
denied, Plaintiffs could and should have included him in the underlying proceedings. See id.
Further, Plaintiffs‟ state complaint specifically alleges discriminatory and harassing
conduct on Defendants‟ part, as well as violations of state and federal laws and the New Jersey
and United States Constitutions. Although the state court‟s decision that the Board‟s denial of
the zoning variance was proper did not specifically reach the substance of Plaintiffs‟ federal
claims, the fact remains that Plaintiffs were afforded a full and fair opportunity to litigate such
claims, but failed to do so. See Heir, 218 F. Supp. 2d at 633. Further, because Plaintiffs
included allegations and claims concerning federal law and the United States Constitution, the
federal claims were, in essence, included in Plaintiffs‟ state complaint and should have been
litigated therein.
In fact, the circumstances underlying this matter are quite similar to the Ward case, where
after an appeal of the denial of an application to construct an office building on plaintiff‟s property
was denied in state court, the federal court precluded plaintiff‟s claim of deprivation of property
rights pursuant to Section 1983, based on the entire controversy and preclusion doctrines. See 531
F. Supp. at 475. The federal claims asserted in this matter, including those asserted pursuant to
Section 1983, are certainly aspects of the “single larger controversy” concerning the use of
Plaintiffs‟ garage as a cabana. See Heir, 218 F. Supp. 2d at 535. Undeniably, the federal claims
before this Court arise from that very same issue regarding Plaintiffs‟ garage, and, in fact, are
premised upon many of the exact factual allegations set forth in the state complaint. See id. As set
forth above, a judgment will foreclose a party from litigating certain claims if it is determined by a
reviewing court that, although never in fact litigated, the claims “should have been advanced in an
earlier suit.” See Peduto, 696 F. Supp. at 1007.
26
Accordingly, the Court finds good cause to apply the entire controversy doctrine,
resulting in a finding that Plaintiffs‟ federal claims must be precluded, because they could and
should have been included in the original state action. Quite simply, the underlying set of facts
used to support Plaintiffs‟ federal claims are the same set of facts used and assessed in the state
court proceedings, which ultimately led to a judgment in favor of Defendants. As such,
Plaintiffs‟ federal claims accrued prior to and during the state court proceedings and must be
precluded. See Rhodes, 980 F. Supp. at 787; Robertson, 148 F. Supp. 2d at 448. Indeed, this
Court has discretion to preclude claims that a party failed “to allow the trial court the opportunity
to supervise[,]” and, thus, Plaintiffs took the risk of losing their right to assert such federal claims
by, instead, bringing the claims in this subsequent proceeding. See Rhodes, 980 F. Supp. at 783.
Regardless of whether the federal claims may be considered “separate and independently
cognizable” claims to those asserted in the state proceedings, Plaintiffs had an affirmative
obligation to set forth all causes of action arising from the same set of operative facts in their
initial complaint. See Dowdell, 94 F. Supp. 2d at 534. Plaintiffs failed to meet this obligation
and, therefore, their federal claims must be precluded in this subsequent federal proceeding.2
While the Court has discretion to refrain from applying the entire controversy doctrine,
the Court finds that, in the instant matter, application will not result in a significant unfairness or
injustice to Plaintiffs. See Rhodes, 980 F. Supp. at 783. Instead, because judgment was entered
and affirmed in the state court proceedings, which held that the Board did not improperly deny
Plaintiffs‟ zoning variance application, the Court finds Plaintiffs‟ federal claims are barred.
2
Having concluded that Defendants‟ motions for summary judgment must be granted based on
the relevant preclusion doctrines, the Court need not reach the Board or Lorenzo‟s assertions
with regard to the ramp and Plaintiffs‟ alleged failure to exhaust their administrative remedies.
27
Indisputably, Plaintiffs were required to present all affirmative claims to the state court, which
arose from the operative facts and entire controversy set forth in their state complaint, but failed
to do so. See id. Thus, because Plaintiffs “had a fair and reasonable opportunity” to fully litigate
their federal claims, pursuant to the entire controversy doctrine, they have lost their right to now
assert such claims. See Heir, 218 F. Supp. 2d at 633 (citation omitted). Accordingly, this Court
must preclude Plaintiffs‟ federal claims and Complaint. To hold otherwise would be contrary to
applicable law, creating piecemeal litigation, and would be unfair, inefficient, and uneconomical
to the material interest of Defendants and this Court. See Dowdell, 94 F. Supp. 2d at 534.
B.
Plaintiffs’ Cross-Motion for Leave to Amend Complaint
1.
Relevant Legal Standard
Under the Federal Rules of Civil Procedure, “a party may amend its pleading only with
the opposing party‟s written consent or the court‟s leave. The court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). The decision as to whether leave to amend a
complaint should be granted “is a matter committed to the sound discretion of the district court.”
Arab African Int’l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993). The Third Circuit has
adopted a particularly liberal approach in favor of permitting pleading amendments so as to
ensure that “a particular claim will be decided on the merits rather than on technicalities.” Dole
v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). Thus, “[i]f the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded
an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962).
However, leave to amend a pleading may be denied if the Court finds: (1) undue delay;
(2) bad faith or dilatory motive; (3) undue prejudice to the non-moving party; or (4) futility of
the amendment. Id.; Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). With regard to whether a
28
motion to amend a complaint should be denied on futility grounds, a court must consider whether
“the complaint, as amended, would not survive a motion to dismiss for failure to state a claim.”
Keller v. Schering-Plough, Corp., No. 04-669, 2007 U.S. Dist. LEXIS 75318, at *7 (D.N.J. Oct.
9, 2007) (citing In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002)). “This does
not require the parties to engage in the equivalent of substantive motion practice upon the
proposed new claim . . . ; this does require, however, that the newly asserted [claim] appear to be
sufficiently well-grounded in fact or law that it is not a frivolous pursuit.” Harrison Beverage
Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 469 (D.N.J. 1990). Indeed, a complaint must include
“„a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in order
to „give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟”
Bell Atl. Corp. v. Twombly, 550 U.S. 545, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Furthermore, in conducting its futility analysis, the Court must “accept as true all of the
factual allegations in the [proposed amended] complaint as well as the reasonable inferences that
can be drawn from them.” Brown v. Philip Morris Inc., 250 F.3d 789, 796 (3d Cir. 2001) (citing
Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)).
Importantly, prejudice to the non-moving party constitutes “the touchstone for the denial
of leave to amend.” Heyl & Patterson Int’l, Inc. v. F. D. Rich Hous. of V.I., Inc., 663 F.2d 419,
425 (3d Cir. 1981) (quoting Cornell & Co., Inc. v. Occupational Safety & Health Review
Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)). The burden of establishing prejudice rests with the
non-moving party, who must demonstrate that permitting the party to amend the complaint
“would (1) require the non-moving party to expend significant additional resources to conduct
discovery and prepare for trial, (2) significantly delay the resolution of the dispute, or (3) prevent
a party from bringing a timely action in another jurisdiction.” Textron Fin.-N.J., Inc. v. Herring
29
Land Grp., LLC, No. 06-2585, 2009 WL 690933, at *4 (D.N.J. Mar. 11, 2009). “Delay alone . . .
does not justify denying a motion to amend. Rather, it is only where delay becomes „undue,
placing an unwarranted burden on the court, or . . . prejudicial, placing an unfair burden on the
opposing party‟ that denial of a motion to amend is appropriate.” Id. (quoting Adams v. Gould
Inc., 739 F.2d 858, 868 (3d Cir. 1984)). If, however, the non-movant is not afforded “a
meaningful opportunity to respond to these new allegations,” permitting the movant to amend the
complaint may be inappropriate. See Keller, 2007 U.S. Dist. LEXIS 75318, at **8-9 (denying a
motion to amend the complaint because discovery would have to be reopened in order to provide
the defendant with such an opportunity).
2.
Parties’ Legal Arguments
Here, Plaintiffs assert that good cause exists to grant their motion to file an amended
Complaint to add a selective enforcement claim against Defendants. (See generally Pls.‟ Moving
Br.) Plaintiffs assert that the prior property owner used the garage in dispute as an accessory
structure at the time that Plaintiffs purchased the property over twenty years ago. (Id. at 2.)
After approving Plaintiffs‟ request to build an elevator for their son, as well as a third story to
their house, and “after twenty (20) years of silence, the town zoning official and the Town
disapproved of Plaintiffs‟ use of the garage,” denying Plaintiffs‟ application for a variance. (Id.)
Plaintiffs assert that the amended Complaint must be permitted, as it will not cause undue
delay, the motion was not filed in bad faith and Plaintiffs‟ motives are not dilatory. (Id. at 4-5. )
Plaintiffs contend that they only recently became aware of Defendants‟ selective enforcement
and, as such, the motion was not filed to cause undue delay or with bad faith. (Id. at 4.) Further,
because Plaintiffs claim they have evidence to support their claims, the cross-motion was not
filed with any dilatory motives. (Id. at 5.) Similarly, Plaintiffs argue that Defendants will not be
30
prejudiced by the proposed amended Complaint, because new parties are not being added to this
matter, discovery has not commenced in this federal action, and the proposed claim is
substantially similar to the discrimination previously asserted. (Id.)
Specifically, Plaintiffs learned of Defendants‟ selective enforcement of the Borough‟s
zoning ordinances in the fall of 2010, discovering that the Board granted two variances to a
resident that permitted the construction of a pool cabana just a few months prior to denying
Plaintiffs‟ application. (Doc. No. 34-2 (“Hart Cert.”), Ex. C1 (“Rodsan Cert.”) ¶¶ 8-10.)
Similarly, although other neighbors frequently park their over-sized vehicles on the street or their
lawns, Plaintiffs contend that Defendants instructed Plaintiffs to park the cars in their garage,
because their cars were too big. (Rodsan Cert. ¶ 11.) Plaintiffs argue that yet another example of
selective enforcement occurred when neighbors added a large addition to their home and neither
Plaintiffs nor their other neighbors were notified of the addition and no variances were obtained, as
otherwise required by the Borough‟s zoning ordinance. (Id. at ¶¶ 12-13.) According to Plaintiffs,
the same neighbors failed to build a fence, as otherwise required, and construction work was
allowed to proceed during non-permitted hours and holidays, in direct contravention of the
Borough‟s zoning provisions. (Id.) Yet, Plaintiffs assert, when working on a smaller addition to
their home, Defendants strictly enforced the safety precautions and construction work hours
required by the Borough‟s zoning ordinance. (Id. at ¶ 14.) Plaintiffs further note that at least one
other local business owner has accused Defendants of selective enforcement, as evidenced by a
November 18, 2010 article posted on NorthJersey.com. (Id. at ¶ 15, Ex. C.) Plaintiffs, therefore,
conclude that “Defendants clearly favor some residents and businesses of the town and disfavor
others, based on nothing else but discrimination and biases.” (Id. at ¶ 16.)
31
Finally, Plaintiffs argue that the proposed amendments are not futile, reminding the Court
it must accept all of their factual allegations as true, drawing all reasonable inferences in their
favor. (Id. at 5-6.) As for the entire controversy doctrine, Plaintiffs assert that because they only
“recently learned and obtained conclusive proof about Defendants‟ selective enforcement of the
zoning ordinances through the town of Tenafly. . . . [and] did not have the benefit of that
knowledge at the time of the hearing,” it is inapplicable. (Pls.‟ Opp‟n Br. 7.) Since Plaintiffs‟
cross-motion to amend was timely filed, and the “new information goes to the heart of all of
Plaintiffs‟ claims[,] as well as establishes its own claim,” Plaintiffs argue that the selective
enforcement and civil rights claims are not barred. (Id.) In support of this assertion, Plaintiffs
conclude that “no claims of any kind were fully litigated against Tenafly or Mottola . . . . [or]
against Defendant Benny Lorenzo.” (Id.)
The Board and Lorenzo, on the other hand, assert that the Plaintiffs exercised undue
delay and bad faith in filing their motion, the amendment would be futile, and the amendment
will prejudice Defendants. (See generally Bd.‟s Opp‟n Br.) Specifically, the Board and Lorenzo
assert that permitting the proposed amended Complaint will result in undue delay, since this
matter has been adjudicated throughout the entire New Jersey state court system. (Id. at 2.)
Further, as Plaintiffs waited until the filing of summary judgment motions to request leave to add
the selective enforcement claim, the Board and Lorenzo suggest that the application was made in
bad faith with dilatory motive, in order to increase the costs and expenses that will be borne by
Defendants if the proposed amended Complaint is permitted. (Id. at 3.) According to the Board
and Lorenzo, the application is a delay tactic and “Plaintiffs‟ true purpose in this action is the
obtaining of the right to have a cabana on the outside of their home[,]” and to otherwise obtain a
judgment that they were unable to obtain from the New Jersey courts. (Id.)
32
Next, the Board and Lorenzo contend that the proposed amendments to add the selective
enforcement claims would be futile, because it is not based on a federal cause of action or
federally-protected right. (Id.) According to the aforementioned parties, Plaintiffs are simply
seeking “to have a cabana for social use[,]” and, because Plaintiffs fail to base the proposed claim
on a federally-protected right, such a claim would be futile. (Id. at 3-4, citing Tenafly Eruv Ass’n,
Inc. v. Borough of Tenafly, 309 F.3d 144, 158 (3d Cir. 2002) (indicating that an action must be
based on a federally-protected right in order to be permitted in a federal court proceeding).)
Likewise, the Board and Lorenzo argue, permitting the proposed amendments will cause prejudice
to the Board, Borough and Lorenzo, because they have already litigated this matter in the state
courts, particularly when Plaintiffs have had previous opportunities to litigate a selective
enforcement claim. (Id. at 4-5.) As “[a]ll of the facts were known to it [sic] and this is merely an
attempt to prolong this action[,] which will result in prejudicial costs to Defendants . . . . [,]” the
Board and Lorenzo assert that this Court should deny Plaintiffs‟ cross-motion. (Id. at 5.)
With regard to the few examples the Plaintiffs assert support a selective enforcement
claim, the Board and Lorenzo take the position that they do not form the basis for such a claim.
(Bd.‟s Reply Br. 6.) Specifically, the aforementioned parties explain that just because a cabana
application was approved months prior to Plaintiffs‟ application does not indicate that
Defendants‟ actions were discriminatory or based on selective enforcement. (Id. at 6-7, citing
Tancrel, 583 F. Supp. at 1551 (where plaintiffs asserted that their discriminatory enforcement
claim was not raised in the lower court, holding that “any further claims arising out of the same
factual transactions that were litigated between the parties in the first action” are barred).)
In reply to the Board and Lorenzo‟s opposition, Plaintiffs assert that Defendants will not
suffer prejudice as a result of the proposed amended Complaint, the application was not made in
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bad faith or with dilatory motive, and the proposed selective enforcement claim is not futile.
(Doc. No. 39 (“Pls.‟ Reply Br.”) 1.) Plaintiffs disagree with the Board and Lorenzo‟s assertion
that the motion is a “„knee-jerk‟ reaction” to Defendants‟ summary judgment motions, as
Plaintiffs only learned about Defendants‟ selective enforcement after filing the Complaint in
federal court. (Id. at 1-2.) As Plaintiffs initially believed that a settlement would be
forthcoming, in order to avoid unnecessary costs and expenses, Plaintiffs did not move to amend
the Complaint until settlement discussions proved fruitless. (Id. at 2.) Next, Plaintiffs argue that
selective enforcement is a federally-protected right, as it violates federal due process rights. (Id.)
Finally, Plaintiffs assert that the Defendants will not suffer any prejudice, because the selective
enforcement claim is similar to their other claims and “fall under the umbrella of Defendants‟
discriminatory actions.” (Id.) As discovery in this action has not occurred, Plaintiffs contend, no
party will be prejudiced. (Id.)
3.
Analysis
Having carefully reviewed and considered the parties‟ legal positions, this Court finds
good cause to deny Plaintiffs‟ motion to file an amended Complaint. Although the Court does
not find bad faith or dilatory motive on Plaintiffs‟ part in filing their cross-motion, the Court
does find futility of the proposed claim of selective enforcement. Again, based on the
preclusion doctrines and entire controversy doctrine discussed and analyzed throughout this
Opinion, the Court finds that permitting the addition of the selective enforcement claim would be
futile, because the aforementioned doctrines bar Plaintiffs from asserting such a claim, which
could have and should have been brought in the state action. See Tancrel, 583 F. Supp. at 1551;
Peduto, 696 F. Supp. at 1007. Plaintiffs‟ concession that the selective enforcement claim is
similar to their other claims and “fall under the umbrella of Defendants‟ discriminatory actions,”
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provides this Court with even more reason and support to deny the cross-motion to file an
amended Complaint. For instance, Plaintiffs‟ complaint in the state court action specifically
alleged that Defendants “cited Plaintiffs for numerous alleged violations as part of a plan and
scheme to harass and discriminate against the Plaintiffs. . . . [and] engaged in a course of
deliberate, harassing and discriminatory conduct against the Plaintiffs.” (State Compl. ¶¶ 10,
12.) Certainly, the aforementioned allegations are interrelated and intertwined with Plaintiffs‟
proposed selective enforcement claim as to warrant this Court‟s finding that the claim could and
should have been incorporated in the state proceedings.
Further, although Plaintiffs assert that they only recently learned of the selective
enforcement of the Borough‟s zoning ordinance, they failed to provide an adequate excuse for
their neglect to discover same in a timely manner. See Romero v. Allstate Corp., 404 F.3d 212,
222 (3d Cir. 2005) (“a claim will accrue when the plaintiff discovers, or with due diligence
should have discovered, the injury that forms the basis for the claim.”). Plaintiffs, in fact,
concede that the approval of another resident‟s application for a variance for a cabana occurred a
few months prior to the denial of Plaintiffs‟ application. Thus, the Court finds that Plaintiffs
certainly could have undertaken diligent research efforts through public records or otherwise to
assess whether the zoning ordinance was being selectively enforced against them. The fact that
Plaintiffs eventually obtained the public minutes for the Board meeting on July 7, 2008,
approved on August 8, 2008, in which the resident‟s application for a variance to construct a
cabana was granted, further supports this finding. (See Rodsan Cert. Ex. A.)
Finally, the lack of any logical or coherent nexus between the facts of this matter when
compared to the article referred to by Plaintiffs, in which a business owner complains of
selective enforcement with respect to issuing summonses to businesses, further persuade this
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Court that denial of Plaintiffs‟ cross-motion is warranted. The comparison is too dissimilar to
carry much weight when balancing the futility of the proposed amendment and prejudice to
Defendants. Clearly, the proposed amended Complaint would prejudice Defendants to an extent
that warrants denial of Plaintiffs‟ cross-motion, as it would require Defendants to litigate claims
that should have been included in the state proceedings and are, therefore, barred under the
preclusion and entire controversy doctrines. Accordingly, the Court finds that good cause exists
to deny Plaintiffs‟ cross-motion to file an amended Complaint.
III.
CONCLUSION
For the foregoing reasons, and for other good cause shown, Defendants‟ motions for
summary judgment are granted. Pursuant to Federal Rule of Civil Procedure 56, the Court is
satisfied that no genuine issue of material fact for trial is present, and that Defendants are entitled
to summary judgment as a matter of law on Counts one through eight of the Complaint.
Plaintiffs‟ cross-motion for leave to file an amended Complaint is denied. An appropriate
form of order will be filed together with this Opinion.
s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES MAGISTRATE JUDGE
Dated: June 30, 2011
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