GALICKI et al v. STATE OF NEW JERSEY et al

Filing 57

OPINION. Signed by Magistrate Judge Joseph A. Dickson on 8/18/2014. (nr, )

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NOT FOR PUBLICATION
THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ZACHARY GALICKI, et al.,

Civil Action No. 14-169 (JLL) (JAD)

Plaintiffs,

v.
STATE OF NEW JERSEY, et al.
Defendants.
GW CAR SERVICE, LLC, et al.,

Civil Action No.14-1319 (WHW) (CLW

Plaintiffs,

v.
STATE OF NEW JERSEY, et al.,

OPINION ON PLAINTIFFS' MOTIO
TO CONSOLIDATE AND FOJ
LEAVE TO FILE A CONSOLIDATEI ~
AMENDED COMPLAINT

Defendants.
JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon Plaintiffs Zachary Galicki, Joy Galicki,

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Galicki, Robert Arnold, Kim Josecelyn, Elizabeth Psaltos, Madeline Lobue, Hong Lee, MarkKa z,
Liberty News, Inc., Dog On It Doggie Daycare, Applie Corrugated Box Ltd. And Seacaucus Lir o
Car Service, LLP.'s (collectively, the "Galicki Plaintiffs") motion to consolidate Galicki v St e
of New Jersey, Civil Action No. 14-169 (the "Galicki Matter"), with GW Car Service LLC

v.

State ofNew Jersey, Civil Action No. 14-1319 (the "GW Car Service Matter"). (ECF No.3 ).
The Galicki Plaintiffs also seek leave to file a consolidated, amended pleading followi g
consolidation. (Id.). The Hon. Jose L. Linares, U.S.D.J., referred the Galicki Plaintiffs' motion o
this Court for resolution. In accordance with Rule 78 of the Federal Rules of Civil Procedure, t e
Court did not hear oral argument in connection with this motion. Upon careful consideration )f

.

the parties' submissions, the Galicki Plaintiffs' motion is GRANTED IN PART AND DENI D
IN PART. Specifically, the Galicki Matter and the GW Car Service Matter shall be consolida
under Civil Action No. 14-169. The Galicki Plaintiffs' request for leave to file a consolidat d,
amended pleadings is denied, without prejudice, and may be re:filed after the District Court rend
a decision on the pending cross-motions for appointment of interim lead counsel.

I.

BACKGROUND
a. The Galicki Matter

The Galicki Plaintiffs commenced Civil Action No. 14-169 (JLL) by filing a Complain in
this District on January 9, 2014. (Compl., ECF No. 1). 1 In that pleading, Plaintiffs Zach
Galicki, Joy Galicki, Eli Galicki, Robert Arnold, Kim Josecelyn and Elizabeth Psaltos (not all
the current Galicki Plaintiffs were named in the original complaint), alleged that Defendants S te
of New Jersey, Governor Christopher Christie, Bridget Anne Kelly, the Port Authority of N w
York & New Jersey, Bill Baroni, and David Wildstein had collectively engaged in a politic
motivated scheme to close lanes leading to dedicated toll booths for the George Washington Bri

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in September 2013, and that Defendants intended those closures to "cause extreme and/or he
traffic delays heading into the Borough of Fort Lee, New Jersey and surrounding areas in North
New Jersey Area [sic] to New York City as well as to cause the residents and businesses in F rt
Lee, New Jersey hardship." (!4:. at 2). 2 The plaintiffs further alleged that Defendants' acti
delayed their commutes (and that certain of the plaintiffs were hourly employees who lost wa s
as a result), (Mh at 5), and asserted multiple causes of action based on those facts. (Id. at 6-1

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Unless otherwise noted, all "ECF" citations refer to the docket in Civil Action No. 14-169.
The Court refers to the Galicki Plaintiffs' original Complaint by page number as those plainti s
did not utilize continuous paragraph numbering (i.e., each new section starts anew at paragr h
one).
2

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The plaintiffs also sought to bring their claims on a class basis, and proposed the following cl s
definition:
[T]hose individuals and business owners who reside, work or own
businesses in Northern New Jersey and who were caused to sustain
injury, either physical or psychological and/or who were caused to
sustain economic damages and loss of liberty as a result of the
conduct of the Defendant's [sic] herein.
(Compl., ECF No.1, at 6).
The plaintiffs in the Galicki Matter subsequently filed a series of amended pleadin s,
making incremental changes with each amendment.

On January 14, 2014, they filed t ir

Amended Class Action Complaint, in which they named Madeline Lobue, Hong Lee, Mark K tz
and Liberty News, Inc. as additional class representatives, (Am. Compl., ECF No.3), and ad d
new causes of action alleging that Defendants violated 42 U.S.C. §§ 1985 and 1986 and cau d
the plaintiffs to suffer "severe emotional distress." (Id. at 12-14). On January 16, 2014, they fi d
a Second Amended Class Action Complaint, naming Dog On It Doggie Daycare as an additio al
class representative but making no other substantive changes. (Sec Am. Compl., ECF No. 4). J st
four days later, on January 20, 2014, the plaintiffs filed a Third Amended Class Action Compla t,
(3rd Am. Compl., ECF No. 5), in which they named Apple Corrugated Box, Ltd. as a cl s
representative, added Bill Stepien as a defendant, provided additional details regarding their clai s
under 42 U.S.C. §§ 1985 and 1986, added new claims for false imprisonment, public nuisance
prima facie tort, and eliminated their standalone cause of action for "severe emotional distre "
(Id. at 13-18). Finally, on March 18, 2014, the Galicki Plaintiffs filed a Fourth Amended Cl s
Action Complaint. (ECF No. 37). In that pleading, the Galicki Plaintiffs added Secaucus Li o

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Car Service, LLP as a class representative and asserted new causes of action for intentio ai
infliction of emotional distress and breach of contract. (ld. at 19-21). 3
In the midst of this series of amendments, before the parties had conducted discovery
indeed, before most defendants had entered appearances, the Galicki Plaintiffs filed a motio
certify their proposed class. (ECF No 7). The Hon. Mark Falk, U.S.M.J. later administrativ
terminated the Galicki Plaintiffs' motion for class certification, without prejudice to their abi
to refile it at a "later, more appropriate, time." (April9, 2014 Order, ECF No. 49, at 2). On M
24, 2014, the Galicki Plaintiffs filed the instant motion to consolidate the Galicki Matter with

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OW Car Service Matter and for leave to file a consolidated, amended pleading encompassing

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claims in both matters. (ECF No. 39).

b. The GW Car Service Matter
Plaintiffs OW Car Service, LLC, Lime Taxi, LLC, Palisades Enterprises, LLC, Fort
Car Service, LLC, Vans R Us, Bergen Transportation Services, Inc., Robert Cohen, Joan Co n
and Victor Cataldo commenced the OW Car Service Action by filing a complaint in the N
Jersey Suprerior Court, Civil Part, Bergen Vicinage on January 13, 2014. (See ECF No. 1-1 'n
Civil Action No. 14-1319). Those plaintiffs alleged that, from September 9, 2013 to Septem
13, 2013, the State ofNew Jersey, Chris Christie for Governor, Inc., David Wildstein, Bill Baro
Bridget Anne Kelley, Michael Drewniak and Bill Stepien "conspired, orchestrated, planned,

The Court notes that, while the Galicki Plaintiffs properly filed their Amended Class Acti
Complaint in accordance with Federal Rule of Civil Procedure 15, they appear to have viola
that Rule in filing each of their three subsequent amendments. Rule 15 permits a party to am
its pleading "once as a matter of course" and states that "(i]n all other cases, a party may ame
its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ.
15(a) (emphasis added). The Court did not grant the Galicki Plaintiffs leave to amend, nor did
Galicki Plaintiffs provide any indicia that Defendants provided their written consent to
amendment.
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instituted an improper closure of lanes of travel, toll plazas, and toll booths originating from t e
Borough of Fort Lee, New Jersey with the sole intent of inflicting hardship, emotional tra
traffic, congestion, and other damage to residents of the Borough of Fort Lee, New Jersey and s
Mayor." (Id.

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27). The plaintiffs in the GW Car Service Matter contend that the defendan '

conduct "caus[ed] plaintiffs and members of the class (both residents of the Borough of Fort
and others) to be stuck in extreme traffic delays, to be late for work, to lose jobs an
compensation, to be falsely imprisoned in their cars, to be falsely restrained, and to sust n
economic, physical and emotional injuries." (Id. ~ 28).
Based on these factual allegations, the GW Car Service plaintiffs asserted causes of acti n
for violation of their rights under the United States Constitution (and alleging that the defend
conspired to violate those rights), (id. ~~ 58-63), the defendants' failure to prevent the deprivati n
of constitutional rights, (id.

mr 69-73), certain defendants' vicarious liability for the actions

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employees (against Christie for Governor and the State ofNew Jersey), (.i!b ~~ 74-79, 102-10 ),
the violation ofN.J.S.A. 2C:41-1(the New Jersey RICO statute), (.i!b ~~ 83-88), the violation f
the plaintiffs' rights under the New Jersey Constitution and, in tum the New Jersey Civil Ri

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Act, (id. ~~ 89-95), and conspiracy. (Id. mf 64-68, 96-101). 4
The GW Car Service plaintiffs defined their potential class as:
All persons who are residents of New Jersey and/or residents of
other states of the United States who were forced to suffer extreme
traffic delays and to be stuck in their cars, waste gas, and lose time
from September 9, 2013 through September 13, 2013 when they
traveled in or around the Borough of Fort Lee, New Jersey and
neighboring towns and/or when they attempted to cross the George
Washington Bridge.
4

On March 20, 2014, the plaintiffs in the GW Car Service Matter filed a First Amended Complai t,
(ECF No. 11 in Civil Action No. 14-1319), in which they named the Port Authority of N
York/New Jersey as an additional defendant and asserted a new cause of action under N.J.S.
56:8-1, et seq. (the New Jersey Consumer Fraud Act). (Id. at mf 103-113).
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(Id. ~ 49). They also identified two distinct subclasses: (1) "class members who drove their c s
in New Jersey, were stuck in extreme traffic delays in New Jersey, and paid a toll for the Geo e
Washington Bridge from September 9, 2013 through September 13, 2013", fuh

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50); and

)

"class members who were traveling and/or driving solely in New Jersey from September 9, 20 3
through September 13, 2013 and were stuck in extreme traffic and delays in New Jersey."
51).
On February 28, 2014, the State ofNew Jersey and Michael Drewniak removed the
Car Service Matter to the United States District Court, contending that, in light of the plainti
several federal claims, the District Court had original subject matter jurisdiction over the c e
pursuant to 28 U.S.C. § 1331 and other federal statutes. (Notice ofRemoval, ECF No. 1 in Ci il
Action No. 14-1319, ~ 3-4). On March 11, 2014, the plaintiffs' counsel in the GW Car Serv e
Matter filed a motion seeking their appointment as interim class counsel in that case. (ECF N
in Civil Action No. 14-1319). On March 24, 2014, the Galicki Plaintiffs filed a cross-mot' n
requesting that they be permitted to intervene in the GW Car Service Matter and that th ir
attorneys, the Law Offices of Rosemarie Arnold, be appointed as interim class counsel in for

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plaintiffs in both the GW Car Service Matter and the Galicki Matter. (See ECF No. 16-13 in Ci i1
Action No. 14-1319, at 4). Those motions are currently pending.
II.

LEGAL STANDARDS AND ANANYSIS

of Consolidatin the Galicki and GW Car Service Matte

Rule 42(a) ofthe Federal Rules of Civil Procedure provides:
When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any
or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.

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Fed. R. Civ. P. 42(a). 5
Rule 42(a) gives the district court "broad powers to consolidate actions involving comm n
questions of law or fact if, in its discretion, such consolidation would facilitate the administrati n
of justice." Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65, 80-82 (D.N
1993) (emphasis in original) (citing Waste Distillation Tech., Inc. v. Pan Am. Res., Inc .. 775
Supp. 759,761 (D. Del. 1991) (citation omitted)); see also In re Mock, 398 F. App'x 716,718 ( d
Cir. 201 0). The purpose of consolidation is "to streamline and economize pretrial proceedings o
as to avoid duplication of effort, and to prevent conflicting outcomes in cases involving simi
legal and factual issues." In re TMI Litig., 193 F.3d 613, 724 (3d Cir. 1999) amended, 199 F. d
158 (3d Cir. 2000).
The mere existence of common issues, however, does not require consolidation.
Lincoln Mercury, Inc., 149 F.R.D. at 81 (citing Waste Distillation, 775 F. Supp. at 761).
savings of time and effort gained through consolidation must be balanced against
inconvenience, delay or expense that might result from the simultaneous disposition of the separ e
actions. Id. (citations omitted).
Here, all parties that have opined on the issue agree that the Galicki Matter and the G
Car Service Matter should be consolidated. (See April 7, 2014 Letter from Defendant Willi
Baroni, ECF No. 44, at 1 ("We do, however, believe that the class actions should ultimately e
consolidated and that plaintiffs should file a consolidated amended complaint."); April 10, 20 4
Letter from Defendants State ofNew Jersey, Governor Chris Christie and Michael Drewniak, E F

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Local Civil Rule 42.1 provides, in pertinent part, that"[ a] motion to consolidate two or more ci i1
cases pending upon the docket of the Court shall be filed in the case bearing the earliest doc t
number." As the Galicki Matter was filed before the GW Car Service Matter, the Gali
Plaintiffs' motion to consolidate is therefore properly before this Court.
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No. 53, at 2-3 ("These two cases readily meet the standard of Fed. R. Civ. P. 42 ... L. Civ. R. 4 1
allows for consolidation of cases into the earliest filed action, here, Galicki.")). Indeed, while

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plaintiffs in the GW Car Service matter oppose the Galicki Plaintiffs' request for leave to fil a
consolidated, amended pleading, (Opp. Br., ECF No. 45, at 10-11), they do not object o
consolidation, and observe that the two cases "involve some common questions of law and f:
and [that] consolidation would promote judicial economy and the efficiency of pre

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proceedings." (Id. at 1). This Court agrees that consolidation is appropriate. Both matters
based on the same underlying events, feature several of the same defendants and involve so e
significant overlap in the causes of action at issue. The cases therefore share several "co
issues oflaw or fact", and consolidation would "streamline and economize pretrial proceedings o
as to avoid duplication of effort, and [would] prevent conflicting outcomes in cases involv·
similar legal and factual issues." In re TMI Litig., 193 F.3d at 724. Finally, given that both acti

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are still in their relative infancy and have nearly identical procedural postures, consolidation wo
not cause any undue "inconvenience, delay or expense." Liberty Lincoln Mercury, Inc., 1
F.R.D. at 81. The Court finds that the GW Car Service Matter and the Galicki Matter should e
consolidated, with the older case, the Galicki Matter, serving as the lead case.

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b. The Galicki Plaintiffs' Request for Leave
to File a Consolidated, Amended Pleading

In addition to moving for consolidation, the Galicki Plaintiffs also seek leave to fil a
consolidated, amended pleading that would encompass the claims of all plaintiffs in both case .6
The plaintiffs in the GW Car Service Matter oppose that application, arguing that it would e
inappropriate to allow the Galicki Plaintiffs' counsel to file a consolidated complaint becau ,
among other reasons, those attorneys do not represent them (the Court has not yet appoint d
interim lead counsel in these matters) and because the Galicki Plaintiffs' own pleadings cont n
both procedural and substantive shortcomings (inferring that the Galicki Plaintiffs' current coun
may include similar, alleged deficiencies in any consolidated pleading. (Opp. Br., ECF No. 45,
2-4).
While this Court believes that the interests of justice and judicial efficiency require that

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plaintiffs in these newly consolidated matters eventually file a single, consolidated pleading,
Galicki Plaintiffs' request is premature at this juncture. After the District Court appoints inte
lead counsel in these matters, those attorneys should then take appropriate steps to fi1

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consolidated, amended complaint. The Galicki Plaintiffs' motion for leave to file a consolidat ,
amended pleading is therefore denied without prejudice.

As an initial matter, the Court notes that, though the Galicki Plaintiffs seek leave to file
amended complaint, they have not submitted a proposed pleading for the Court's review s
required by Local Civil Rule 7.1(t). That deficiency is, in itself, sufficient grounds to deny th ir
motion. See, e.g, Moran v. DaVita, Inc., No. 06-5620 (JAP), 2009 U.S. Dist. LEXIS 22951, * 1
(D.N.J. Mar. 23, 2009) (observing that a movant's failure to provide the court with a copy of ts
proposed, amended pleading "is sufficient to deny leave to amend.") (citing Lake v. Arnold, 2 2
F.3d 360, 374 (3d Cir. 2000)).
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III.

CONCLUSION

Based on the foregoing, the Galicki Plaintiffs' motion, (ECF No. 39), is GRANTED
PART AND DENIED IN PART. The Galicki Matter and the GW Car Service Matter shall e
consolidated, with the older action, Civil Action No. 14-169, serving as the lead case. The Gali
Plaintiffs' request for leave to file a consolidated, amended pleading is denied, without prejud e
to any plaintiffs right to seek such relief after the Court has appointed interim lead counsel n
these consolidated matters.

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.fOSPA:DiCKSON, U.S.M.J.

cc.

Honorable Jose L. Linares, U.S.D.J.

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