O'TOOLE et al v. KLINGEN et al

Filing 23

OPINION. Signed by Judge John Michael Vazquez on 1/13/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication

MICHELE O’TOOLE, MARYANN MAURO,
CORD MEYER, JODIE MEYER, KAREN
MEYER, GLORIA EDLIN, DIANA ROE,
DEBRA NELSON, MARIANN BUESING AND
VICKIE GARCIA,

P1ai,itiff.,

Civil Action No. 14-6333

OPINION

v.
ROBERT KLINGEN, CHARLES JANDRIS,
LIZ VILANO, ROBERT MURKEN, JANET
DIAZ,
WALTER
SEAMAN,
SUSAN
MAURKEN, JOHN CLUZEL, ALEX KUZMIK,
MADELINE VAN DUREN, TOM HYLAND,
GREG ANTONETTI, CRAISSA MAGNANI
AND MAHWAH EMERGENCY MEDICAL
SERVICES, A NEW JERSEY NOT-FORPROFIT CORPORATION,

Defendants.

John Michael Vazgucz, U.S.D.J.
The present matter comes before the Court on Defendants” motion to dismiss the Second
Amended Complaint for failure to state a claim. Plaintiffs oppose the motion.2 This case concerns

Defendants include Mahwah Emergency Medical Services (“MEMS”), as well as the “Individual
Defendants” who are “residents of the Township of Mahwah.” Second Amended Complaint ¶ 3,
4. The Individual Defendants (all individually named defendants) are comprised of thirteen
persons. Collectively, MEMS and the Individual Defendants are referred to herein as
“Defendants.”
2

Defendants’ brief in support of its motion to dismiss the Amended Complaint will be referred to
hereinafter as “DeE Br.” (D.E. 20); Plaintiffs’ opposition to Defendants’ motion to dismiss will be

allegations that Plaintiffs’ constitutional rights to due process and equal protection, and their rights
under the New Jersey Law Against Discrimination (“NJLAD”), were violated in connection with
their applications for membership in a volunteer ambulance squad. This motion was decided
without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.
The Court has considered the parties’ submissions and grants Defendants’ motion. At the outset,
Plaintiffs are collaterally estopped from litigating their status as Township of Mahwah employees
and the claims as to all Individual Defendants are dismissed without prejudice (unless the claim is
otherwise dismissed with prejudice). In addition, Count I is dismissed without prejudice as to 42
U.S.C.

§

1983 and is dismissed with prejudice as to the New Jersey Civil Rights Act (“NJCRA”).

Count II is dismissed with prejudice. Count III is dismissed with prejudice as to Section 1983 and
without prejudice regarding the NJCRA. Count IV is dismissed without prejudice.
I.

BACKGROUND
The following facts are derived from Plaintiffs Second Amended Complaint (“SAC”).3

Plaintiffs were at all relevant times members of the Mahwah Ambulance Rescue Company No. I
(“MARS”), which is a New Jersey not-for-profit corporation. SAC

¶

1. MARS, together with

Mahwah Ambulance Company No. 4 (“Company 4”), provided ambulance and first aid services
to the Township of Mahwah.
volunteers. Id.

¶

9.

Id.

¶

7.

MARS and Company 4 were comprised entirely of

Prior to 2013, Mahwah Township funded MARS and Company 4, and

referred to “P1. Opp’n” (D.E. 21); and Defendants’ reply brief will be referred to “Def. R.Br.”
(D.E. 22).
When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the
complaint. Fowler v UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). While Defendants
contest many of Plaintiffs’ factual allegations, they accept as true the facts for the purposes of this
Motion. Def Br. at 3.

7

provided them with ambulances. Id.

¶

10.

Members of MARS and Company 4, incLuding

Plaintiffs, were covered by worker’s compensation relating to their position as volunteers. liability
insurance relating to their position as volunteers, and the State of New Jersey’s pension system
(known as the “LOSAP” program). receiving a contribution to their pension in every year that they
responded to a minimum number of calls. Id.

¶J

II, 12. Additionally, members of MARS and

Company 4 received other benefits, “including uniforms, free family admissions to the [t]own
[p]ool. free dog licenses and a waiver of fees for any construction permits.” Id.
allege that they were dc/ado employees of the Township as a result. Id.

¶

¶

13. Plaintiffs

14. On July 11,2013,

Mahwah Township terminated its relationship with MARS and Company 4. Id.

¶

16.

Simultaneously, Mahwah Township entered into “an identical relationship with Defendant
MEMS.” Id.

¶

17. Plaintiffs claim that “Defendant MEMS is the dc/ado successor to MARS and

Company 4.” Id.

¶

19. Plaintiffs allege that Company 4 members, along with certain MARS

members, were accepted “cii masse” into MEMS without applying. Id. ¶21. However, “[w]hen
Mahwah Township entered into the new relationship with MEMS on July 11, 2013, Plaintiff’s
status as de facto employees of Mahwah township ended.” Id.

¶ 23.

Plaintiffs had to apply for

membership in MEMS, but were denied.4 See Id. ¶‘ 25(a)-(g) (describing seven of the Plaintiffs
application attempt to MEMS). Following the denial of their applications, Plaintiffs had no
opportunity to challenge “the termination of their status as de Jhct[o] employees of Mahwah
Township and the deprivation of all the property rights and interests that accompanied that status.”
Id.

¶ 24.

Specifically, Plaintiffs O’Toole and Karen Meyer claim that their applications were rejected;
Plaintiffs Cord Meyer, Jodie Meyer, Mauro, and Garcia allege that their applications were
“tabled,” and Plaintiff Buesing states that her application was returned as incomplete. The SAC
is silent as to whether Plaintiffs Edlin, Roe, and Nelson applied.
3

Notably, the SAC fails to mention any of the Individual Defendants by name in the body
of the pleading except for three: Jandds, Klingen, and Diaz. Defendant Jandris is alleged to have
created MEMS, while Defendants Klingen and Diaz are alleged to have sent denial letters to
Plaintiffs. Id.

¶

18; 25(a)-(g). The remainder of the Individual Defendants are merely named in

the caption and then referred to collectively as “Individual Defendants.”
Equally notable, despite claiming age discrimination in two counts, the SAC fails to state
the age of any individual Plaintiff. Instead. Plaintiffs allege that their average and median ages are
58 and 54, respectively. Id.

¶

47. They also allege that members of MEMS “ha[vej an average

age of38, and a median age of 40.” Id. ¶48. Thus, Plaintiffs conclude that by “denying Plaintiffs
status as members/employees [in MEMS], Defendants discriminated against them on the basis of
age.” Id.

¶ 46.

Subsequently, Plaintiffs brought the present action.

II. PROCEDURAL HISTORY
Plaintiffs filed their Complaint on October 13, 2014 alleging four causes of action. D.E.
I. On July 14, 2015 and again on August 12, 2015, Plaintiffs amended their Complaint. D.E. 10,
11. The SAC alleges four counts: Count I
Protection, Count III

—

—

Denial of Due Process, Count II

Denial of Equal Protection, and Count IV

33-5 1. The first three counts are brought pursuant to 42 U.S.C.

§

—

—

Denial of Equal

Age Discrimination. SAC ‘j

1933 and the NJCRA, N.J.S.A.

10:6-I, et. Seq. The last count is brought under the NJLAD. N.J.S.A. 10:6-1, ci seq. In lieu of
answering, Defendants filed their motion to dismiss on May 2, 2016. Def. Br. Plaintiffs oppose
this motion. P1. Opp’n.
As to the first three counts, Defendants argue that dismissal is warranted because Plaintiffs
have failed to show that Defendants are state actors, as required for a Section 1983 claim and the
NJCRA.

DeE Br. at 7-8.

Additionally, Defendants argue that collateral estoppel prevents

4

Plaintiffs from relitigating the issue of whether Plaintiffs are employees of Mahwah Township
since a state court already made the determination that Plaintiffs are not employees of the
Township. Id. at 8-12. Regarding the fourth count, Defendants assert that Plaintiffs’ have not
plausibly pled their claim. Id. at 18-19.
Plaintiffs respond that the issue decided in state court was limited to whether they were
employees within the meaning of the Open Public Meetings Act (“OPMA”) and, thus, collateral
estoppel does not apply. P1. Opp’n at 4. Plaintiffs further argue that they have sufficiently alleged,
both factually and legally, their right to relief under all four counts. Id. at 6.
III. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule I 2(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell AtL Corp. v. Twornblv, 550 U.s. 544, 570 (2007). A
complaint is plausible on its face when there is enough factual content “that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcro/i

i’.

Iqbal, 556 U.s. 662, 678 (2009). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
acted unlawfully.” Connelly

i’.

Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal

quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

5

A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Barn/ca

1’.

McGreevev, 481 F.3d 187, 211 (3d Cir. 2007). If,

after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. DeFazio

i’.

Leading Edge Recoven’ So/s.. No. 10-2945,

2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
IV. DISCUSSION
A. Individual Defendants
At the outset, the Complaint is dismissed as to all Individual Defendants. There are thirteen
Individual Defendants that are listed in the caption of the SAC. With the exception of Defendants
Jandris, Klingen, and Diaz, the Individual Defendants are not mentioned by name in the body of
the SAC. As a result, the Court is simply left to guess as to their actions vis-ã-vis Plaintiffs’
allegations. Indeed, the Court is left to complete speculation as to the ten Individual Defendants’
relationship with MEMS. Defendant Jandris is said to have created MEMS but no factual claims
are made as to him regarding Plaintiffs’ substantive allegations. The factual allegations concerning
Defendants Klingen and Diaz have some factual support, in that both allegedly wrote letters to
seven of the Plaintiffs that rejected, tabled, or returned Plaintiffs’ applications to MEMS.
However, as is discussed ffirther concerning Plaintiffs’ NJ LAD count, the Court is left to guess as
to critical facts necessary to support Plaintiffs’ SAC. The SAC is not plausibly pled as to the
Individual Defendants. See Tu’onthly. 550 U.S. at 570. Therefore, the Individual Defendants are
dismissed without prejudice.
B. Collateral Estoppel
Throughout the SAC, Plaintiffs refer to themselves as “dcJzcto employees” of Mahwah
Township. See SAC 114 (“Plaintiffs were defacto employees of Mahwah Township”),
6

¶

15

(“Plaintiffs
22 (same),

...

had a property interest in their status as [jemployees of... Mahwah Township”),

¶ 24

(same), 9 27 (same),

¶ 33

¶

(same). Defendants claim that Plaintiffs are collaterally

estopped from litigating their status as Township employees in the light of the New Jersey Superior
Court’s previous finding that they were not. Def Br. at 10.
Plaintiffs filed a Complaint in the Superior Court of New Jersey, Bergen County on August
23, 2013, alleging a violation of the OPMA, N.J.S.A. 10:4-7 et seq..

D.E. 20-3, O’Toole v.

Township of Mahwah, No. L-6503-13. There, the state court addressed the issue of whether the
individually named plaintiffs were employees of the Township, a prerequisite for recovery under
the OPMA. D.E. 204, Tr. 37:08-37:13. The court held, in an oral ruling by State Superior Court
Judge Meehan. that the individual plaintiffs were not employees of the Township but rather
volunteers of MARS. Id. Tr. 37:14-37:20.
The doctrine of collateral estoppel provides that “once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in subsequent
cases based on a different cause of action involving a party to the prior litigation.” Montana

i’.

United States, 440 U.S. 147, 153 (1979). In order to succeed on a case of collateral estoppel, a
party must show: “(I) the issue sought to be precluded is the same as that involved in the prior
action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment;
and (4) the determination was essential to the prior judgment.” In re Graham, 973 F.2d 1089.
1097 (3d Cir. 1992).
The Court finds that Plaintiffs are collaterally estopped from relitigating their status as
employees of the Township.

First, the issue as to whether Plaintiffs were employees of the

Township was involved in the state action and it was actually litigated. Moreover, both parties
had a full and fair opportunity to litigate their positions.

7

See D.E. 20-4. Tr. 34:10-34:13

(Defendants arguing that “plaintiffs are not employees of Mahwah.” but instead are “volunteers
and receive funds pursuant to LOSAP and certain other benefits such as workers’ comp and
uniform al1owances”) undid. Tr. 34:21-34:24 (Plaintiffs arguing that they are employees because
“they were given certain stipends, the benefits they received, and they received W-2 forms showing
such income”).

After oral argument, Judge Meehan made a finding that “plaintiffs are not

employees, but they are rather volunteers of MARS, not the Township.” Id. Tr. 37:14-37:16. This
ruling was a valid and final judgment. See 0 ‘Lewan’ i. Libern’ Mitt. Ins. Co.. 923 F.2d 1062, 1066
(3d Cir. 1991) (“A judgment is ‘valid’ when it has been rendered by a court of competent subject
matter jurisdiction and the party against whom judgment is rendered either has submitted to the
jurisdiction of the court or has been afforded adequate notice.”); Dynthil

i’.

D nthd, 620 F.2d 409,

412 (3d Cir. 1980) (adopting a broad view of “finality” to include “any prior adjudication of an
issue in another action between the parties that is determined to be sufficiently firm to be accorded
conclusive effect”). Judge Meehan likewise found that in order for plaintiffs to recover under the
OPMA. “the injured party

must

be an employee of the relevant township.” D.E. 20-4, Tr. 37:11-

37:13 (emphasis added); see also Rice

i

Union Clv. Reg’l High Sc/i. Ed. of Ethic., 155 N.J. Super

64, 73 (App. Div. 1977) (requiring notice to

employees

under the OPMA). Thus, Plaintiffs’ status

as employees of the Township was essential to the state court’s ruling.
Plaintiffs now present the same issue in the SAC, i.e., their status as employees of Mahwah.
However, that issue was filly litigated in the prior action, determined by a final and valid
judgement, and essential to that judgment. As a result, to the extent that Plaintiffs allegations in
the SAC turn on their status as employees of Mahwah Township, they are estopped from arguing
the issue as a matter of law. Plaintiffs contend that the state court’s decision concerned Plaintiffs’
status as employees only in regard to the OPMA.

8

While Judge Meehan’s determination was

certainly made concerning the subject matter of that suit, the OPMA, the Court could find no
authority that the term “employee” is given a special definition for OPMA purposes. Moreover,
Plaintiffs did not provide any such authority. The definitions provision of OPMA, N.J.S.A. 10:48, does not provide a distinct definition for “employee.”
The only issue that remains is whether Plaintiffs’ status as voluntary members, not
employees, is sufficient to pursue their claims against Defendant MEMS in the SAC.
C. State Action
Counts I, II and Ill of the SAC bring constitutional claims pursuant to Section 1983 and
the NJCRA. Section 1983 provides in part:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights. privileges, or immunities secured by the
Constitution and laws. shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
42 U.S.C.

§ 1983. Similarly, the relevant portion of the NJCRA states:
[amy person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.

N.J. Stat. Ann. 10:6-2(e).
Section 1983 provides “private citizens with a means to redress violations of federal law
committed by state [actors].” Woodvard v. Cn’. of Essex, 514 F. App’x 177, 180 (3d Cir. 2013).
Additionally, “civil claims for violations of the New Jersey Constitution can only be asserted by
way of the New Jersey Civil Rights Act.” Martin v. Un/mown US. Marshals, 965 F. Supp. 2d
9

502, 548 (D.N.J. 2013). The NJCRA is interpreted analogously to Section 1983. Id. As a result,
all three counts wilL be analyzed in light of Section 1983.
To bring a Section 1983 action, a plaintiff must allege the violation of a right secured by
the Constitution or laws of the United States, and must show that the alleged deprivation was
committed by a person acting “under color of state law.” West v. Atkins, 487 U.S. 42,48 (1988);
see a/so (‘oxtrell v. Zagaini, LLC, No. 08-3340. 2010 WL 2652229. at *4 (D.N.J. June 23, 2010)
(“[The] NJCRA does not peni-üt[j private suits against private persons absent state action.”). A
person “acting under color of state law,” is a person whose power is derived from state law or
whose action is “made possible only because the wrongdoer is clothed with the authority of state
law.” West, 487 U.S. at 49 (internal quotation marks omitted).5 A municipality can be a state
actor for the purposes of Section 1983. See Monell v. Dept ofSocial Sen’s. of City of tVew York,
436 U.S. 658, 690 (1978). Thus, the Township of Mahwah could be a state actor for the purposes
of Section 1983, but it is not named as a defendant.
As a result, a central issue in this case turns on whether MEMS is considered a “state actor”
for the purposes of Section 1983.

In other words, the key detentination is whether MEMS

involvement with Mahwah justifies the conclusion that MEMS engaged in “state action.” Both
parties agree that MEMS is “a New Jersey not-for-profit corporation.” SAC

¶ 3.

for-profit corporations are private parties and not state actors. See, e.g., Opoku

i’.

Generally, notEduc. Conitit

ii

for Foreign Med. Graduates, 574 F. App’x 197, 20! (3d Cir. 2014); Gannanvy v. Karetas, 438 F.
App’x 61, 65 (3d Cir. 2011) (finding that a not-for-profit healthcare center was not a state actor
under* 1983).

The terms “under color of law” and “state action” are interpreted identically. See Koch
589 F.3d 626, 646 (3d Cir. 2009).
10

i’.

Hose,

Nevertheless, there are numerous contexts in which a private party’s actions maybe fairly
attributed to the state for purposes of Section 983. Downev v. Coal Against Rape & Abuse. Inc.,
143 F. Supp. 2d 423, 438 (D.N.J. 2001). A challenged activity maybe deemed state action when:
(I) it results from the State’s exercise of ‘coercive power’; (2) when
the State provides significant encouragement, either overt or covert;
(3) when a private actor operates as a willful participant in joint
activity with the State or its agents; (4) when a nominally private
entity is controlled by an agency of the State; (5) when a private
entity has been delegated a public function by the State; or (6) when
the private entity is entwined with governmental policies, or the
government is entwined in its management or control.
Id. These tests have taken on a variety of names and forms, creating a state action doctrine that
has “not been a model of consistency.” Ethnonson

1’.

Leesville Concrete Co., 500 U.S. 614, 632

(1991). Relevant to the present dispute are tests (5) and (6) listed above: the public function and
the pervasive entwinement tests, respectively.
While the discrete tests are relevant to a state action analysis, the question of state action
is at its base a fact-specific inquiry. Groman v. T’ap. QfManalapan, 47 F.3d 628, 638 (3d Cir.
1995). Thus, a private entity is deemed a state actor when there is a “close nexus” between the
state and the challenged action so that the private behavior “may be fairly treated as that of the
State itself.” Brentwood A cad. v. Tennessee Secondan’ Sch. Athletic Ass ½. 53! U.S. 288, 295
(2001). “The purpose of this requirement is to assure that constitutional standards are invoked
only when it can be said that the State is responsible for the specific conduct of which the plaintiff
complains.” Blitni v. Yaretsky, 457 U.S. 991, 1004(1982). The burden to prove such a nexus rests
with the Plaintiff Gronzan, 47 F.3d at 638.
Here, Defendant MEMS claims that Plaintiffs cannot meet the public function or pervasive
entwinement tests. DeE Br. at 12-17. Plaintiffs respond that they meet both, but do not argue that

II

any other standard should apply. P1. Opp’n at 4-6. Therefore, the Court will only address the
public ftrnction and pervasive entwinement tests.
The public function test asks whether the challenged action relates to a function that has
been “traditionally the exclusive prerogative of the State.” Jackson

i’.

Metro. Edison Co., 419 U.S.

345, 353 (1974). Courts have generally found that using this measuring stick, voluntary ambulance
companies do not meet the state action requirement. See. e.g., Gronian, 47 F.3d at 641 (rejecting
the comparison between volunteer fire departments and volunteer first aid squads and finding that
the first aid squad was not performing an exclusive government thnction and therefore was not a
state actor for the purposes of Section 1983); State

i

Morrison, No. A-0170-14T2, 2015 WL

4487594, at *4 (App. Div. July 24, 2015) (finding that a volunteer first aid and rescue squad does
not act under color of state law pursuant to Section 1983). This conclusion is largely due to the
limited scope of this test, which reaches “only those activities that have been ‘traditionally the
exclusive prerogative of the State.” Gronian, 47 F.3d at 639 (quoting Rendell-Baker v. K/ion, 457
U.S. 830, 842 (1982)). This rigorous test is rarely satisfied, since few functions have traditionally
been within the sole domain of states. See Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 158
(1978); Mark

i

Borough ofHatboro, 51 F.3d 1137, 1142 (3d Cir. 1995). Examples of activities

that have been found to be traditionally within the exclusive purview of the State are: providing
medical care for prison inmates. West. 487 U.S. at 54-57 (1988); holding primary elections, Tern
i.

Adams. 345 U.S. 461, 469-70 (1953); maintaining parks, Evans v. Neuron, 382 U.S. 296(1966);

and fire protection, Mark, 51 F.3d at 1145.
Turning to the pervasive entwinement standard, the allegations by Plaintiffs are that MARS
was “an apparent ann of the municipal government in Mahwah Township,” and that MEMS is the

12

“defacto successor to MARS.”6 SAC JjJ 9, 19. Plaintiffs additionally allege that “Mahwah
Township ftrnded MARS” and “provided them with ambulances at public expense.” Id.

¶

10.

Thus, Plaintiffs conclude that “MEMS is the agent of Mahwah Township for selecting and
employing people for the Township’s ambulance and first aid service.” Id.

¶

10.

The pervasive entwinement test asks whether “[t[he nominally private character of the
[a]ssociation is overborne by the pervasive entwinement of public institutions and public officials
in its composition and workings, and there is no substantial reason to claim unfairness in applying
constitutional standards to it.” BrentuvodAcad., 531 L.S. at 298. [mportantly. mere receipt of
public finds in insufficient to demonstrate state action under this standard. Groman, 47 F. 3d at
640.
In Grogan

1’.

Blooming Grove Volunteer Ambulance Corps, the Second Circuit addressed

the issue of whether a private volunteer ambulance squad was a state actor under the entwinement

test. 768 F.3d 259, 268 (2d Cir. 2014). There, plaintiff alleged that her constitutional rights were
inthnged upon by the personnel decisions of defendant, a volunteer ambulance squad. Id. at 263.
The Grogan Court found that the plaintiff had to show “that the State is so entwined with
[defendant’s] management that its personnel decisions are fairly attributable to the State.” Id. at
268. Despite defendant deriving a majority of its funding from the town, the Grogan Court found

that plaintiff failed to present evidence “that the Town appoints any portion of [defendant’s]
Board,” “has any say in [defendant’s] management or personnel decisions,” or “play[ed] any role
in the disciplinary process that resulted in her suspension.” Id. at 269. Thus, the court concluded
that it could not find that the town was sufficiently entwined with defendant’s management or

It is noteworthy that Plaintiffs continually allege that Defendants are an “apparent arm” of the
Township. However, apparent state action is not cognizable under either Section 1983 or the
NJCRA either there is state action or there is not.
6

—

13

personnel decisions to render the suspension without a hearing “state action.” Id. In other words,
the Second Circuit found that the pervasive entwinernent test looked not only to the general
relationship between the municipality and the ambulance squad but also to their relationship
regarding the particular allegations. Thus, plaintiff needed to show pervasive entwinement as to
management and personnel decisions but she failed to do so.
In Gronian

i’.

Township ofManalapan. the Third Circuit addressed the issue of state action

when plaintiffs sued Manalapan’s first aid squad for an alleged violation of their constitutional
rights in failing to provide adequate medical treatment. 47 F.3d at 631. In analyzing whether the
volunteer first aid squad was a state actor for the purposes of Section 1983, the Gminan court used
a “general conceptual inquiry,” in which it asked “the degree to which the state and the private
entity exist in a ‘symbiotic relationship’ or under circumstances where the conduct of the private
actor can be fairly imputed as that of the state.”7 Id. at 641. In its analysis, the Third Circuit
stressed that “the interdependence between the state and private actor must be pronounced before
the law will transform the private actor into a state actor.” Id. The court therefore found that there
was “no evidence that the Township controlled the first aid squad’s professional conduct,” so that
the squad was not a state actor for the purposes of Section 1983. Id. at 642. The court in Groman
stressed that the first aid squad “did not have its professional decisions dictated or guided by the
state.” Id. Thus, like in Grogan, the Groman court looked to the municipality’s connection with
the squad vis-à-vis the plaintiffs allegations. In Grogan, the issue was personnel decisions, while
in Gronian, the matter concerned professional conduct.

In Groman, the Third Circuit applied the symbiotic relationship test, as opposed to the
pervasive entwinement test. Id. However, the tests are extremely similar in application.
14

Plaintiffs have failed to meet their burden of demonstrating that MEMS was a state actor.
First, as noted, volunteer ambulance squads do not meet the exclusive public ftrnction test. See
State v.Morrison, 2015 WL 4487594, at *4; Gronian, 47 F.3d at 641.

Second, Plaintiffs’

allegation that MEMS is a state actor through its pervasive entwinement with the Township is not
plausibly pled. Critically, there is no plausible allegation as to Mahwah’s involvement in MEMS’
personnel decisions, which is the heart of Plaintiffs’ allegations. Since entwinement requires a
nexus between the action alleged and the state action involved, Plaintiffs have failed to meet this
standard. Even if MEMS was considered a state actor for certain purposes, there are no plausible
allegations that MEMS’ personnel decisions could be fairly attributed to the Township. Any such
allegation is merely conclusory and devoid of factual underpinnings.

See, e.g., SAC

¶J

28

(Plaintiffs allege that MEMS is the “agent” of Mahwah Township “for selecting and employing
people for the Township’s ambulance and first aid service.”).
As a result, Plaintiffs’ claims against Defendant MEMS are dismissed without prejudice.
Although this ruling means that the first three counts will be dismissed without prejudice, the Court
will nevertheless analyze the remaining aspects of Defendants’ motion should Plaintiffs attempt
to cure its pleading defect with a Third Amended Complaint. Thus the Court will assume, for the
sake of argument, that MEMS is a state actor in the following analysis of Counts I, II, and l[I.
Count I
Even if MEMS was considered a state actor, Plaintiffs have not plausibly pled a violation
of due process. Plaintiffs essentially contend that they had protected property interests in their
membership with MEMS and that they were denied procedural due process because they were not
afforded a pre-deprivation hearing when MEMS denied their applications. An alleged right to a
pre-deprivation hearing involves procedural, not substantive, due process. Mathews v. Eldridge,

15

424 U.S. 319, 335 (1976) (setting forth three factors to be weighed in deciding the sufficiency of

pre-depdvation procedures).
“Section 1983 provides remedies for the deprivation of both procedural and substantive
rights while [the NJCRA] provides remedies only for the violation of substantive rights.” Tumpson
i’.

Farina, 218 N.J. 450, 477 (2014). In other words, the NJCRA does not apply to procedural due

process c(aims. Mattson v. Aetna Life his. Co., 124 F. Supp. 3d 381, 390 (D.N.J. 2015) (“‘[A]
procedural due process claim cannot be brought under the NJCRA.”) (quoting Major Tours, Inc.
i’.

Colorel, 799 F. Supp. 2d 376, 405 (D.N.J. 2011)).

Since Plaintiffs have pled a claim of

procedural due process. they cannot proceed under the NJCRA since this cause of action is not
recognized under that statue. Therefore, Plaintiffs’ Count I brought pursuant to the NJCRA is
dismissed with prejudice.
To state a claim that Plaintiffs were denied procedural due process pursuant to Section
1983, they must allege that

“(

I) [they were] deprived of an individual interest that is encompassed

within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures
afforded [them] did not constitute ‘due process of law.” Houston v. flip, of Randolph, 934 F.
Supp. 2d 711,733 (D.N.J. 2013) (quotingHil/v. Borough ofKutztown,455 F.3d255, 234 (3d Cir.
2006)).

Thus, the first step is to “deterniine whether the asserted individual interests are

encompassed within the fourteenth amendment’s protection of life, liberty, or property.” Id.
“To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead have
a legitimate claim of entitlement to it.” Baraka, 481 F.3d at 205. Even in cases where a property

Neither party analyzed the application of the NJCRA to procedural due process claims. The
Court addresses it sua sponte.
16

interest exists, if the interest is de nunenus then “the protections of due process do not attach.”
Houston, 934 F. Supp. 2d at 733. It is established that at-will employees have no protected interest
in their employment and cannot prevail on a claim that their discharge constituted a violation of
property rights.

Peters v. Silverton Volunteer Fire Co. No. I. No. A-3498-l4Tl, 2016 WL

6518595, at *5 (N.J. App. Div. Nov. 3. 2016). This rule extends to volunteers. Houston, 934 F.
Supp. 2d at 734. Therefore, Plaintiffs have no property rights in their status as volunteer members
of MEMS.
Plaintiffs allege, however, that they have property rights in their ancillary interests
associated with their volunteer position, specifically their alleged rights concerning worker’s
compensation, uniforms, LOSAP (pension), dog licenses, town pool access, and construction
permit fees. In Versage

Township of Clinton N.J. the Third Circuit analyzed the claims of

dismissed volunteer firefighters, who argued that they had ancillary property rights to their
volunteer position, including training, workers’ compensation, and access to the firehouse as a
social area. 984 F.2d 1359, 1370 (3d Cir. 1993). The Versage court applied the Supreme Court’s
rule that “due process dofes] not apply when the property interest involved is ‘de
(citing Goss

1’.

nzininzis.”

Id.

Lopez, 419 U.S. 565, 576 (1975)). Finding little independent value in plaintiff’s

alleged benefits, the Versage court concluded that the benefits were “inextricably tied” to
plaintiffs position as a firefighter, and were therefore were de ininimis and not subject to due
process protections. Id.; see also Houston. 934 F. Supp. 2d at 734 (finding that LOSAP benefits
were “intimately tied” to plaintiffs firefighting activities).
As pled, Plaintiffs have alleged de ininimis benefits that do not carry with them a right to
due process. As noted, Plaintiffs have no property interest as volunteers to continued membership
in MEMS. Plaintiffs additionally have no right to property interests that are “inextricably tied” to

17

their positions as volunteer first aid workers. Plaintiffs rights to workers’ compensation, liability
insurance, the LOSAP program and uniforms are all dependent on Plaintiffs’ membership status.
See Thmkel

i’.

Mr. C’arbon/North Maheim Fire Co., 970 F. Supp. 2d 374, 380-81 (M.D. Pa 2013)

(finding that volunteer firefighter death benefits, life membership status, training, and social hall
are tie minim/s property interests because plaintiff “cannot access these interests unless he is a
member of the fire company”).
The remaining stated benefits are admission to the town pool, a dog license, and waiver of
fees for construction permits. The only monetary value Plaintiffs allege for these benefits is that
the construction permits “could have a value of several thousand dollars.” SAC

¶

13.

This

statement is conclusory, and is not sufficient to allege that these benefits are above the threshold
*4
of tie in/n/mis property rights. See Brennan v. Kulick, No. 01-3837, 2006 WL 2065047, at
(D.N.J. July 24, 2006) (finding a $300 clothing allowance a tie rn/n/mis property interest). The
SAC fails to assign any value to the free dog licenses or pool access. Thus, Plaintiffs have failed
to allege a protectable property interest and the Court need not reach the question of whether the
procedures afforded to Plaintiffs were adequate.
Count I is dismissed without prejudice as to the Section 1983 claim and with prejudice as
to the NJCRA claim.
Count 11
In Count 11, Plaintiffs allege a violation of their right to equal protection under the state and
federal constitutions because they were forced to apply for positions with MEMS while other
former members of MARS and Company 4 were accepted “en masse.” SAC

¶ 38-43.

There are

two methods of establishing an equal protection claim: the traditional analysis which requires a
plaintiff to allege membership in a protected class, and a “class-of.on&’ analysis. Falco v. Zimmer,
No. 13-1648, 2015 WL 7069653, at

*

7 (D.N.J. Nov. 12, 2015). In Count II, Plaintiffs do not
18

indicate that they are members of a protected class, and therefore must proceed under the class-ofone analysis.9
In a class-of-one analysis, a plaintiff must show that she “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Id. (citing Village of Willonbrook v. 01cc/i, 528 U.S. 562, 564 (2000fl; see also Cuzzo
v. Cimino, No. A-5431-IOTI, 2012 WL 3116814, at *3 (N.J. App. Div. July 20, 2012) (applying
the Supreme Court’s class-of-one analysis to an equal protection claim under the New Jersey
Constitution). Ordinarily, class-of-one is a rational basis inquiry. Valenti v. Abate, No. 08-1609,
2009 WI. 5218063. at *10 (D.N.J. Dec. 31, 2009). However, in Engqzdst
ofAgriculture, the Supreme Court held that the

‘“class-of-one’

theory of

i.

Oregon Department

equal protection [hasJ no

place in the public employment context.” 553 U.S. 591. 595 (2008). Engquist has been cited
approvingly by courts in New Jersey. See, e.g., Shabazr-Henn’

i’.

City of Neiva,*, No. A-1833-

14T1, 2016 WL 6156206, at *7_*g (N.J. App. Div. Oct. 24, 2016); Trivers

i’.

City ofAtlantic City,

No. A-3041-1 1T3, 2013 WL4607152, at *5 n.1 (N.J. App. Div. Aug. 30, 2013); Cuzzo, 2012 WL
3116814. at *3
Here, the Court has already ruled that Plaintiffs cannot relitigate whether they are public
employees. Nevertheless, the Court can find no sound reason why the holding in Engquist would
not apply with equal force to public volunteers. Indeed, employees who

are

compensated

for

their

work would seem to be entitled to greater protections than unpaid volunteers, who receive only
ancillary benefits and no monetary compensation. Thus, Plaintiffs have failed to plead an equal
protection claim in Count 11 and this count is dismissed with prejudice.
Count III

‘

The class-of-one analysis was not raised by either party. The Court addresses it stia sponte.
19

Similarly, in Count Ill, Plaintiffs allege a violation of their right to equal protection based
on age discrimination. See SAC

9% 43-47.

The Third circuit has explicitly held that a claim for

age discrimination cannot be pursued under the Equal Protection Clause, but instead must be
addressed under the Age Discrimination in Employment Act C’ADEA”).’1 See PznWlI v. Harris,
658 F.2d 134, 137 (3d Cir. 1981) (holding that the ADEA is the exclusive federal remedy for
employment-related age discrimination claims); see also (‘ataldo v. Moses, No. 02-2588, 2005
WL 705359, at *16 (D.N.J. Mar. 29, 2005) (applying Purtill to hold that “state, county and
municipal employees cannot pursue claims of age discrimination as the basis for an action under
Section 1983”). Thus, Plaintiffs Section 1983 allegation in Count Ill is dismissed with prejudice.
While the ADEA preempts Plaintiffs’ Section 1983 Claim, it does not necessarily preempt
Plaintiffs’ state constitutional claim for age discrimination brought pursuant to the NJCRA.’’ To
prevail on a NJCRA equal protection claim, a plaintiff must prove that “s/he has been treated
differently from persons who are similarly situated.” Renchenski

i’.

Willkuns, 622 F.3d 315, 337

(3d Cit. 2010). Since age is not a suspect class, the Equal Protection Clause only requires a rational
basis for discrimination on the basis of age. Plan v. Police & Firemen’s Ret Svs., 443 N.J. Super
80, 102 (App. Div. 2015).
Here, Plaintiffs allege that their average and median ages are above the average and median
ages of MEMS members.

0

SAC

¶

43.

Therefore, Plaintiffs conclude that Defendants

Neither party raised the issue of preemption by the ADEA. The Court addresses it

51W

sponte.

The parties again do not raise the issue of whether the NJLAD preempts a NJCRA claim for age
discrimination. The Court’s own review revealed that the NJLAD preempts certain common law
claims, but not a case on point discussing NJ LAD preemption. See Everson i’. JPMorgan Chase
Batik, No. 12-7288, 2013 WL 1934666, at *2 (D.N.J. May 8. 2013) (“Because of the broad
availability of remedies under the [NJLADJ, both state and federal courts in New Jersey have
frequently held that the [NJLADJ bars common law claims based on the same operative facts as
underlie the [NJLAD] claim.”).
20

“discriminated against them on the basis of age” contrary to 42 U.S.C. 1983 and NJSA 10:6-1.
However, as with the NJLAD claim discussed below. Plaintiffs do not plausibly plead this count.
Indeed, the Court does not know the age of any of the individual Plaintiffs as they merely plead
the average and median age of the group collectively. Plaintiffs fails to plead that they were
qualified for a position with MEMS or that MEMS had openings for which Plaintiffs were
qualified. Plaintiffs also have not plausibly pled that MEMS lacked a rational basis in denying,
tabling, or returning Plaintiffs’ applications.
Therefore, Count iii is dismissed with prejudice as to Plaintiffs’ Section 1983 claim and
without prejudice as to Plaintiffs’ NJCRA claim.
Count IV
Lastly, Plaintiffs assert a claim of age discrimination pursuant to the NJ LAD. SAC

¶ 47-

51. In order to establish a prima fade case under the NJ LAD, a plaintiff must establish that he
“(1) belongs to a protected class, (2) applied and was qualified for a position for which the
employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after
rejection the position remained open and the employer continue to seek applications for persons
of plaintiffs qualifications.” Zive v. Stanley Roberts, Inc..

82 N.J. 436, 447 (2005). Once a

plaintiff presents evidence sufficient to establish a p-/ma facie case of unlawffil discrimination, the
burden shifts to the employer to “articulate a legitimate, nondiscriminatory reason for the
employer’s actions.” Id. at 449. If the employer meets its burden, the burden then shifts back to
the plaintiff to “prove by a preponderance of evidence that the reason articulated by the employer
was merely a pretext for discrimination and not the true reason for the employment decision.” Id.
Here, Plaintiffs merely allege that they “have an average age of 58, and a median age of
54,” and that members in MEMS have “an average age of 38, and a median age of 40.” SAC

¶J

47-48. The SAC does not indicate the age of any individual Plaintiff. Plaintiffs also do not allege
21

that they had adequate qualifications for a position with MEMS or that MEMS had positions
available. Thus, Plaintiffs fail to plausibly plead their claim of age discrimination under the
NJ LAD. Count IV is dismissed without prejudice.
V. CONCLUSION
In sum, the Court GRANTS Defendant’s motion. Plaintiffs are collaterally estopped from
litigating their status as Township of Mahwah employees and the claims as to all Individual
Defendants are dismissed without prejudice (unless the claim is otherwise dismissed with
prejudice). Count I is dismissed without prejudice as to 42 U.S.C.

§

prejudice as the NJCRA.

Count Ill is dismissed with

Count II is dismissed with prejudice.

1983 and is dismissed with

prejudice as to Section 1983 and without prejudice regarding the NJCRA. Count IV is dismissed
without prejudice. Plaintiffs have thirty (30) days to file an amended complaint, if they so choose.
An appropriate order accompanies this opinion.
Date: January 13, 2017

C\ .O

Q\[

j

JO MICHAEL VQJEZ
UNITED STATES DI5T ICT

77

UDGE