CARRINGTON v. CITY OF JERSEY CITY et al
Filing
114
OPINION. Signed by Judge Esther Salas on 06/04/2018. (ek)
Case 2:15-cv-07030-ES-SCM Document 114 Filed 06/04/18 Page 1 of 16 PageID: 3453
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIP CARRINGTON,
Plaintiff,
v.
CITY OF JERSEY CITY, et al.,
Defendants.
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Civil Action No. 15-7030 (ES) (SCM)
OPINION
SALAS, DISTRICT JUDGE
Pending before the Court are Defendants’ motion for summary judgment (D.E. No. 98)
and pro se Plaintiff’s cross-motion for summary judgment (D.E. No. 100). The Court has
jurisdiction under 28 U.S.C. § 1331. Having considered the parties’ submissions in support of an
in opposition to the pending motions, the Court decides the motions without oral argument under
Federal Rule of Civil Procedure 78(b). For the reasons below, the Court GRANTS-IN-PART
Defendants’ motion, DENIES-IN-PART Plaintiff’s cross-motion for summary judgment, and
RESERVES its determination on certain claims pending submission of the parties’ supplemental
briefing.
I.
BACKGROUND1
The Parties. Pro se Plaintiff Philip Carrington (“Plaintiff”) filed a Complaint against
thirteen Defendants comprising City of Jersey City (“Jersey City”); the Jersey City City Council
(“City Council”); the Internal Affairs Unit; Police Director James Shea (“Director Shea”); Director
1
The Court distills these facts from Defendants’ Statement of Undisputed Material Facts in Support of
Defendants’ Motion for Summary Judgment (D.E. No. 98-1 (“Def. SMF”)), Plaintiff’s Statement of Undisputed
Material Facts in Support of Plaintiff’s Motion for Summary Judgment (D.E. No. 100-1 (“Pl. SMF”)), and exhibits
accompanying the parties’ submissions. Unless otherwise noted, these background facts are undisputed.
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Alvin Pettit; Sergeant James Crecco (“Sergeant Crecco”); Officers N. Gerand, S. Collier, Sean
Mullahey, Ramon Peguero, Hennessy, and Comandatore (“Police Officer Defendants”); and
Assistant Corporation Counsel John Hallanan (collectively, “Defendants”). (See D.E. No. 1
(“Compl.”) at 1-2).
Facts. Plaintiff brings this action in connection with summonses he received in March
2011 and September 2014 for serving food without a license and an eviction from property he
rented from Jersey City to run a day-care center. (See generally id.).
Plaintiff, a Barbadian American, operated a food truck. (Id. ¶ 22). He was issued
summonses for serving food without a proper license on March 4, 2011 (“2011 Summonses”) and
September 10, 2014 (“2014 Summonses”) (together, the “2011 and 2014 Summonses”). (Pl. SMF
¶¶ 34-35). Officers Gerand and Collier issued the 2011 Summonses. (Id. ¶ 34). Sergeant Crecco
ordered and Officer Mullahey issued the 2014 Summonses. (Id. ¶ 35).
Plaintiff also owned and operated the Remarkable Mossi Youth Council (the “Remarkable
Mossi”), a day-care center. (Id. ¶¶ 7, 18, 45). Plaintiff operated the Remarkable Mossi out of a
complex owned by Jersey City and located at 134-150 Martin Luther King Jr. Drive in Jersey City,
New Jersey, known as the “Bethune Center.” (Id. ¶ 7; Def. SMF ¶ 5). Plaintiff rented the Bethune
Center in accordance with City Council Resolution 05-556, dated July 13, 2005, which authorized
the Remarkable Mossi to rent a room at the Bethune Center from July 1, 2005 to August 31, 2005.
(Def. SMF ¶ 5). The lease does not appear to have been extended. (See D.E. No. 100-3 at 33
(June 11, 2015 letter from Jersey City Business Administrator to Plaintiff stating that Plaintiff’s
“prior License expired in September of 2005 and there is no record of it ever having been
extended”)). In August 2015, Pettit posted several eviction notices at the Remarkable Mossi in
the Bethune Center and alerted Plaintiff’s customers they would have to find a new day-care center
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because the Remarkable Mossi was being evicted. (Pl. SMF ¶ 26). Plaintiff continued to operate
the Remarkable Mossi out of the Bethune Center until his eviction on January 4, 2016. (Id. ¶ 32).
Allegations. Plaintiff maintains that he received the 2011 and 2014 Summonses and was
unlawfully evicted from the Bethune Center because of his race and nationality. (See Compl. ¶ 55
at 10; ¶¶ 56-57, 59; ¶ 61 at 13-14). On September 23, 2015, Plaintiff filed a suit in this Court
alleging arbitrary and capricious action (Count I); violation of 42 U.S.C. § 1983 (Count II);
malicious prosecution (Count III); and violation of the New Jersey Law Against Discrimination
(“NJLAD”) (Count IV). (See id. ¶¶ 45-61). Specifically, Plaintiff alleges that Defendants violated
his civil rights by arbitrarily and capriciously issuing the 2011 and 2014 Summonses because
Plaintiff had a valid license to serve food on both occasions. (Id. ¶¶ 45-50 at 8-9). Plaintiff further
alleges that Defendants prevented and disrupted Plaintiff’s business, thereby denying Plaintiff
“equal protection of the law and discriminat[ing] against the plaintiff on the basis of race” in
violation of § 1983 and the New Jersey Constitution. (Id. ¶¶ 51-57 at 9-11). Next, Plaintiff alleges
that certain police officers maliciously prosecuted him “by issuing summons [sic] requesting the
plaintiff to appear in court when there was no violation of law” and with “an absence of probable
cause.” (Id. ¶¶ 58-65 at 11-12). Finally, Plaintiff asserts a NJLAD claim against all Defendants
alleging that “[D]efendants unlawfully discriminated against the plaintiff on the basis of race and
violated LAD by selective enforcement and prosecution of state and municipal laws and
ordinances.” (Id. ¶¶ 66-67 at 12-13; ¶¶ 55-61 at 13-14).
State Court Actions. In his Complaint, Plaintiff asserts that he “now brings this action
before this court after unsuccessfully exhausting all local municipal remedy [sic] and the defendant
[sic] continue to harassing [sic] plaintiff while legal actions are file [sic] against them in the State
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Superior Court.” (Id. ¶ 15). Plaintiff’s claims appear to have been addressed in three separate
New Jersey Superior Court actions and are summarized below. (Def. SMF ¶¶ 6-43).
On March 25, 2015, Plaintiff filed a complaint in the New Jersey Superior Court, Hudson
County, bearing docket number HUD-L-1310-15 (“Carrington I”), against City Council President
Rolando Lavarro, Chief Health Inspector J. Happy Boar, Sergeant Crecco, and Officer Mullahey,
alleging that the 2011 and 2014 Summonses were arbitrary, unreasonable, and deprived Plaintiff
of due process rights under the Fourteenth Amendment. (Id. ¶¶ 7-12; D.E. No. 98-7 at 1-12).
Plaintiff also asserted a claim for malicious prosecution. (Id. ¶¶ 7-12; D.E. No. 98-7 at 1-12). The
defendants filed a motion to dismiss the complaint in lieu of answer, which Plaintiff opposed.
(Def. SMF ¶ 13; D.E. No. 98-9 at 3). “After considering the arguments and facts presented by the
parties,” the Superior Court dismissed the complaint without prejudice on June 12, 2015. (Def.
SMF ¶ 14; D.E. No. 98-9 at 2-3).
On August 28, 2015, Plaintiff filed a new complaint in the New Jersey Superior Court,
Hudson County, bearing docket number HUD-L-3611-15 (“Carrington II”), against Jersey City,
the City Council, the City Council President Rolando Lavarro, Chief Health Inspector J. Happy
Boar, Sergeant Crecco, and Officer Mullahey. (Def. SMF ¶¶ 15-24; D.E. No. 98-10 at 4-20). In
Count I of this complaint, Plaintiff alleges arbitrary and capricious action by Jersey City’s Chief
Health Inspector, H. James Boar, and that Plaintiff received a series of “arbitrary, capricious and
unreasonable summonses.” (Def. SMF ¶¶ 16-17). In Count II, Plaintiff alleges malicious
prosecution in connection with the 2011 and 2014 Summonses. (Id. ¶ 19). In Count III, Plaintiff
alleges a claim for violations of NJLAD. (Id. ¶ 20). Specifically, Plaintiff asserts his NJLAD
claims in the August 28, 2015 complaint “against Jersey City, Jersey City Police Department,
Sergeant James Crecco, Officers Sean Mullahey, officer Hennessey, officer Ramon Peguero and
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Officer Comandatore.” (D.E. No. 98-10 at 16). On October 23, 2015, “[a]fter considering the
arguments and facts presented by the parties,” the Superior Court dismissed the August 28, 2015
complaint with prejudice. (D.E. No. 98-12 at 2-3).
On September 1, 2015, Jersey City filed a verified complaint in the Superior Court of New
Jersey, Hudson County, bearing docket number HUD-LT-11861 (“Carrington III”), against the
Remarkable Mossi. (Def. SMF ¶ 25; D.E. No. 98-13 at 2-9). In particular, Jersey City sought to
evict the Remarkable Mossi from the Bethune Center for failure to pay rent in the amount of
$162,594.96 and sought a judgment for possession of the property occupied by the Remarkable
Mossi. (Def. SMF ¶ 25; D.E. No. 98-13 at 2-9). On November 2, 2015, the Remarkable Mossi
(represented by attorney Neal E. Brunson) and Jersey City (represented by Defendant Hallanan)
entered into a Consent Order to Enter Judgment of Possession (the “consent order”), whereby the
Remarkable Mossi agreed to voluntarily leave the Bethune Center premises by December 31,
2015. (D.E. No. 98-14 at 2-4).
Pending Motions. On November 21, 2017, Defendants filed a motion for summary
judgment. (D.E. No. 98-2 (“Def. Mov. Br.”)). Plaintiff filed a cross-motion for summary
judgment on the same date. (D.E. No. 100-2 (“Pl. Mov. Br.”)). The parties opposed the pending
motions. (D.E. No. 107 (“Pl. Opp. Br.”);2 D.E. No. 108 (“Def. Opp. Br.”)). They also submitted
replies in further support of their motions. (D.E. No. 110 (“Def. Reply Br.”): D.E. No. 109 (“Pl.
First Reply Br.”); D.E. No. 111 (“Pl. Second Reply Br.”)). The matter is now ripe for resolution.
II.
LEGAL STANDARD
A court shall grant summary judgment under Federal Rule of Civil Procedure 56 “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
2
For this document, the Court refers to the ECF-generated page numbers.
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affidavits . . . show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).3 The mere existence of an alleged disputed fact is not enough. Id. Rather, the opposing
party must prove that there is a genuine issue of a material fact. Id.
An issue of material fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248. A fact is “material” if under the governing
substantive law, a dispute about the fact might affect the outcome of the lawsuit. Id. Factual
disputes that are irrelevant or unnecessary will not preclude summary judgment. Id.
On a summary-judgment motion, the moving party must first show that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts
to the nonmoving party to present evidence that a genuine issue of material fact compels a
trial. Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish
a genuine issue of material fact, not just “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Thus, the nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation
to defeat summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252
(3d Cir. 1999). The Court must, however, consider all facts and their reasonable inferences in the
light most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d
Cir. 1995).
III.
DISCUSSION
Defendants argue Plaintiff already litigated his current claims, on several occasions, to a
final disposition on the merits in the Superior Court of New Jersey, and this federal lawsuit is
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Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.
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barred under New Jersey’s res judicata and entire controversy doctrines. (Def. Mov. Br. at 8-23).
The Court will discuss the two doctrines, and then separately analyze Plaintiff’s claims stemming
from the 2011 and 2014 Summonses and the Remarkable Mossi’s alleged unlawful eviction.
A. Res Judicata
“New Jersey res judicata or claim preclusion law,4 like federal law, has three essential
elements: (1) a final judgment on the merits; (2) the prior suit involved the same parties or their
privies; and (3) the subsequent suit is based on the same transaction or occurrence.” Smith v.
Hillside Vill., No. 17-0883, 2018 WL 588923, at *6 (D.N.J. Jan. 26, 2018) (citing Watkins v.
Resorts Int’l Hotel & Casino, Inc., 591 A.2d 592, 599 (N.J. 1991) (state law); and United States v.
Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984) (federal law)). If those three requirements
are met, then the doctrine bars “the parties or their privies from relitigating issues that were or
could have been raised in that action.” Allen, 449 U.S. at 94; Brown v. Felsen, 442 U.S. 127, 131
(1979) (“Res judicata prevents litigation of all grounds for, or defenses to, recovery that were
previously available to the parties, regardless of whether they were asserted or determined in the
prior proceeding.”); Watkins, 591 A.2d at 599 (“Claim preclusion applies not only to matters
actually determined in an earlier action, but to all relevant matters that could have been so
determined.”)
B. Entire Controversy Doctrine
A “blood relative[]” to res judicata, the entire controversy doctrine is New Jersey’s
“specific, and idiosyncratic, application of traditional res judicata principles.” Rycoline Prods.,
4
Whether a state court judgment should have a preclusive effect in a subsequent federal action depends on the
law of the state that adjudicated the original action. Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999); see
also Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically required all federal courts to give preclusive
effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.”).
Here, that State is New Jersey.
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Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). “The entire controversy rule precludes,
not just claims actually decided by a prior judgment, but all claims and parties that a party could
have joined in a prior case based on the same transaction or occurrence.” Smith, 279 F. Supp. 3d
at 545. “There is no requirement that the claim as to which preclusion is sought have been actually
asserted in the prior action.” Id. at 546. Rather, the necessary relation between the prior action and
the present one is a factual, transactional one:
In determining whether a subsequent claim should be barred under this
doctrine, the central consideration is whether the claims against the different
parties arise from related facts or the same transaction or series of
transactions. It is the core set of facts that provides the link between distinct
claims against the same parties and triggers the requirement that they be
determined in one proceeding. There is no requirement that there be a
commonality of legal issues.
Wadeer v. N.J. Mfrs. Ins. Co., 110 A.3d 19, 27 (N.J. 2015) (cleaned up). So, the entire controversy
doctrine applies in federal court “when there was a previous state-court action involving the same
transaction.” Bennun v. Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991). In other words,
“[i]t extinguishes any subsequent federal-court claim that could and should have been joined in
the prior state action.” Smith, 279 F. Supp. 3d at 546.
“The objectives behind the doctrine are threefold: (1) to encourage the comprehensive and
conclusive determination of a legal controversy; (2) to achieve party fairness and (3) to promote
judicial economy and efficiency by avoiding fragmented, multiple and duplicative litigation.”
DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995). “As an equitable doctrine, its application is
flexible, with a case-by-case appreciation for fairness to the parties.” Paramount Aviation Corp.
v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999).
C. Plaintiff’s Claims Premised on the 2011 and 2014 Summonses
Plaintiff alleges that the Police Officer Defendants improperly issued the 2011 and 2014
Summonses against him because of his race and nationality. (See generally Compl.). Defendants
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argue that Plaintiff already litigated his current claims based on these allegations, on several
occasions, to a final disposition on the merits in the Superior Court of New Jersey and the instant
federal lawsuit is therefore barred as a matter of law. (Def. Mov. Br. at 8-23). The Court agrees.
The Prior Suit Comprised a Final Judgment on the Merits. The Court turns to whether
the prior state action comprised final judgments on the merits. Smith, 2018 WL 588923, at *6.
Relevant here, the Court finds that the New Jersey Superior Court’s judgment in Carrington II was
final and on the merits, as the action was dismissed with prejudice. (D.E. No. 98-12 at 2-3); ITT
Corp. v. Intelnet Int’l Corp., 366 F.3d 205, 214 n.17 (3d Cir. 2004) (“[A] dismissal with prejudice
clearly constitutes an adjudication on the merits . . . .”) (citation omitted); Proano v. United Parcel
Serv., Inc., No. 14-5853, 2015 WL 3938647, at *3 (D.N.J. June 25, 2015) (holding that a dismissal
with prejudice “was valid, final, and on the merits”).
The Subsequent Suit is Based on the Same Transaction or Occurrence. The Court next
turns to whether the instant suit is based on the same transaction or occurrence as Plaintiff’s
Carrington II action. Smith, 2018 WL 588923, at *6. Whether two causes of action are identical
depends, in general, on a consideration of:
(1) whether the acts complained of and the demand for relief are the same
(that is, whether the wrong for which redress is sought is the same in both
actions); (2) whether the theory of recovery is the same; (3) whether the
witnesses and documents at trial are the same (that is, whether the same
evidence necessary to maintain the second action would have been
sufficient to support the first); and (4) whether the material facts alleged are
the same.
Athlone Indus., Inc., 746 F.2d at 984. Additionally, as explained above, “[c]laim preclusion . . .
prohibits reexamination not only of matters actually decided in a prior case, but also those that
parties might have, but did not, assert in that action.” Edmundson v. Boro. of Kennett Square, 4
F.3d 186, 189 (3d Cir. 1993); see supra Section III.A. In other words, a new legal theory “does
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not make the second case different for purposes of claim preclusion.” Jones v. Lapina, 450 F.
App’x 105, 108-09 (3d Cir. 2011).
The Court concludes that the claims in Plaintiff’s current Complaint, as they pertain to the
2011 and 2014 Summonses, are identical to Carrington II for the purposes of res judicata. The
acts complained of and the theories of recovery in both Carrington II and the matter at hand are
the same. In Carrington II, Plaintiff alleged (like in this case) arbitrary and capricious action,
malicious prosecution, and discrimination in violation of the NJLAD against Jersey City, the City
Council, and several city officials in connection with the issuance of the 2011 and 2014
Summonses. (See D.E. 98-10 at 6-20; Compl. ¶¶ 52, 55, 57 at 10-11; id. ¶¶ 56-57 at 13). In that
case, Plaintiff alleged (like here) that the summonses would not have been issued but for his race.
(D.E. 98-10 at 16-17). And in both cases, Plaintiff seeks injunctive relief and penalties for
Defendants’ “historical” actions. (See D.E. 98-10 at 19; Compl. at 16). Moreover, the same
evidence necessary to maintain Plaintiff’s allegations stemming from the 2011 and 2014
Summonses in this action would have been sufficient to support his claims in Carrington II. Put
differently, to prove his claims here, Plaintiff would have to present the same evidence—including
testimony and documents—that would have been necessary in Carrington II.
Indeed, it is undisputed that the issues before this Court are the same as those previously
adjudicated in state court in Carrington II. By his own admission, Plaintiff’s Complaint states that
“[P]laintiff now brings this action before this court after unsuccessfully exhausting all local
municipal remedy [sic] and the defendant [sic] continue to harassing [sic] plaintiff while legal
actions are file [sic] against them in the State Superior Court.” (Compl. ¶ 15). Moreover, in
response to Defendants’ interrogatories requesting that Plaintiff set forth the facts supporting his
claims, Plaintiff stated on nine separate occasions that facts supporting his instant allegations are
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provided in, among other cases, Carrington II (i.e., docket number HUD-L-3611-15). (See D.E.
No. 98-18 at 3-16 (responses to interrogatories 1, 2, 3, 4, 6, 7, 8, 9 and 23)).
The only new cause of action in the present Complaint relating to the 2011 and 2014
Summonses absent from Carrington II is Plaintiff’s § 1983 claim. (See Compl. at 9-11). But
Plaintiff’s § 1983 claim relating to the 2011 and 2014 Summonses is based on allegations of
arbitrary and capricious action, malicious prosecution, and NJLAD violations that are identical to
the claims adjudicated in Carrington II. (See D.E. No. 98-10 at 6-20; Compl.). “Simply presenting
new allegations is not sufficient to overcome claim preclusion if the thrust of the two complaints
remain[s] practically identical.” Zahl v. Warhaftig, 655 F. App’x 66, 73 (3d Cir. 2016). And
Plaintiff does not contend that there were any barriers which prevented him from bringing this
claim in Carrington II. Despite being an issue of federal law, Plaintiff’s § 1983 claim could have
and should have been raised in his state action. See Lui v. Comm’n, Adult Entm’t, De, 369 F.3d
319, 326 (3d Cir. 2004) (“State courts are every bit as competent to deal with . . . claims . . . as are
federal courts, and this, of course, includes the ability to address claims under both the State
constitution and the Federal constitution.”). Plaintiff’s attempt to relitigate claims that have
resulted in a final judgment fails under New Jersey’s claim preclusion jurisprudence.
Cf.
Edmundson, 4 F.3d at 189 (“Claim preclusion . . . prohibits reexamination not only of matters
actually decided in prior cases, but also those that the parties might have, but did not, assert in that
action.”).
The Prior Suit Involved the Same Parties or Their Privies. Next, the Court turns to
whether the prior suit involved the same parties or their privies. Smith, 2018 WL 588923, at *6.
Defendants argue that “[b]oth state court matters were adjudicated and dismissed on the merits
and the parties in these state matters are undoubtedly identical to or are in privity with the
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Defendants in the Federal Complaint.” (Def. Mov. Br. at 27). As to Carrington II, the Court
agrees.
The Third Circuit describes privity as “merely a word used to say that the relationship
between one who is a party on the record and another is close enough to include that other within
the res judicata.” Zahl, 655 F. App’x at 73 (citations omitted). “The term ‘privity’ is used merely
as ‘a way to express the conclusion that nonparty preclusion is appropriate on any
ground.’” Salerno v. Corzine, 449 F. App’x 118, 122-23 (3d Cir. 2011) (quoting Taylor v.
Sturgell, 553 U.S. 880, 894 n.8 (2008)). “New Jersey courts are more willing to find that parties
are in privity if the plaintiff had a full and fair opportunity to litigate its claims in the first
action.” Hamburg Music Corp. v. Winter, No. 04-2738, 2005 WL 2170010, at *3 (3d Cir. Sept.
8, 2005) (citing Zirger v. Gen. Accident Ins. Co., 676 A.2d 1065, 1071 (N.J. 1996)); Bruszewski v.
United States, 181 F.2d 419, 422 (3d Cir. 1950) (explaining that the res judicata doctrine has
developed away “from formalism which impedes the achievement of fair and desirable results” in
cases where a plaintiff has asserted “essentially the same claim against different defendants” on
subsequent occasions). The Third Circuit further explained that, in these circumstances, “courts
have . . . enlarged the area of res judicata beyond any definable categories of privity between the
defendants.”
Zahl v. Warhaftig, No. 13-1345, 2015 WL 1197095, at *5 (D.N.J. Mar. 16,
2015), aff’d, 655 F. App’x 66 (3d Cir. 2016).
Plaintiff (along with the Remarkable Mossi) was a party to the Carrington II action. (D.E.
No. 98-10 at 4, 7). Defendants Jersey City, City Council, Sergeant Crecco, and Officer Mullahney
also meet this element because they were named defendants in Carrington II. (Id. at 6-7). As for
Plaintiff’s claims arising from the 2011 and 2014 Summonses, the instant Complaint also includes
claims against Police Officer Defendants Gerand, Collier, Peguero, Comandatore, and Hennessy;
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Director Shea; and the Internal Affairs Unit of the Jersey City Police Department. (Compl. at 12). But these additional parties were known to Plaintiff as all but two were identified in the
Carrington II complaint.5
And Plaintiff’s opposition notes that Plaintiff also knew of the
involvement of the two officers not identified in the Carrington II complaint: Officers Collier and
Garand.6 Yet Plaintiff never alleged any claims against these newly added defendants even though
he knew of their involvement. “Adding in new defendants and claims does not prevent [this Court]
from finding privity, as the connections between the parties and claims implicated in the
[Carrington II] complaint, and those in the instant complaint reveal that . . . [Plaintiff] had a full
and fair opportunity to litigate his claims in the first action.” Zahl, 655 F. App’x at 73. Again,
“[t]he entire controversy rule precludes, not just claims actually decided by a prior judgment, but
all claims and parties that a party could have joined in a prior case based on the same transaction
or occurrence.” Smith, 279 F. Supp. at 545. Given these circumstances, the Court finds that all
Defendants who face allegations based on the 2011 and 2014 Summonses are the same as or the
privies of the Carrington II defendants. Because Plaintiff “had a full and fair opportunity” to join
these parties and has provided no reason for not doing so in his state court matter, he is precluded
from doing so now. See id.
Asking this Court to determine, based on the same evidence as was before the New Jersey
Superior Court, whether there was wrongdoing in the issuance of the 2011 and 2014 Summonses,
would require a federal court to question the final judgment of a state court. The Full Faith and
Credit Clause of the Federal Constitution, codified in statute, requires that federal courts give “full
5
(See D.E. No. 98-10 at 15, 16, 20 (identifying Officer Peguero); id. at 16 (identifying Officer Comandatore);
id. (identifying Officer Hennessy); id. at 10 (identifying Director Shea); id. at 10, 11 (identifying Internal Affairs
Unit)).
6
(See Pl. Opp. Br. at 23 (“On March 4 2011 notorious Officer Steven Collier and his partner Officer N Garand
and four contingents of police units converge on plaintiff fully license and insured community facility and unlawfully
disrupted plaintiff fundraising event and ordered the business to close.”) (reproduced verbatim)).
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faith and credit” to the judgments of state courts. U.S. Const. art. IV, § 1; 28 U.S.C. § 1738.
Accordingly, Defendants’ motion for summary judgment is granted (and Plaintiff’s cross-motion
is denied) on all of Plaintiff’s claims arising from the issuance of the 2011 and 2014 Summonses,
as those claims are barred by res judicata and the entire controversy doctrine.
D. Plaintiff’s Claims Premised on the Remarkable Mossi’s Eviction
Plaintiff also asserts a number of claims stemming from the Remarkable Mossi’s eviction
from the Bethune Center. (See generally Compl.). In essence, Plaintiff complains of illegal
eviction based on race discrimination. (Pl. Opp. Br. at 8). Specifically, Plaintiff alleges that “[t]he
defendants unlawfully discriminated against the plaintiff on the basis of race by unfairly closing
plaintiff[’s] business, posting publishing and distributing deceitful and defamatory notices along
with illegal eviction notices and instructing plaintiff[’s] customers to take their business
somewhere else.” (Compl. ¶ 57 at 13). Plaintiff appears to allege these claims against Defendants
Pettit, Hallanan, and “the police of Jersey City.”7 (Pl. Opp. Br. at 20-25; Pl. Mov. Br. at 4-27;
Compl. ¶ 52 at 10; id. ¶ 61 at 11).8
7
In his summary-judgment briefing, Plaintiff also appears to be asserting claims against “Business
Administrator Robert Kakoleski” and “former Ward F Council-Woman Diane Coleman” for acts relating to the
Remarkable Mossi’s eviction from the Bethune Center. (See, e.g., Pl. Opp. Br. at 29 (“Jersey City Business
Administrator Robert Kakoleski and former Ward F Council-Woman Diane Coleman must be joined in the above
action.”); Pl. Mov. Br. at 5-7, 13, 16, 18, 23 (listing allegations against Kakoleski and Coleman)).
“Plaintiffs,” however, “cannot amend their pleadings in a summary judgment motion.” Olmo v. Atl. City
Parasail, LLC, No. 13-4923, 2016 WL 1704365, at *6 (D.N.J. Apr. 28, 2016); see also Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (noting that “[a]t the summary judgment stage, the proper procedure for
plaintiffs to assert a new claim is to amend the complaint in accordance with FED. R. CIV. P. 15(a)” and that “[a]
plaintiff may not amend her complaint through argument in a brief opposing summary judgment”); Taveras v. Resorts
Int’l Hotel, Inc., No. 07-4555, 2008 WL 4372791, at *6, n.7 (D.N.J. Sept. 19, 2008) (“[Plaintiff] may not amend a
complaint through her briefs to the Court.”).
As such, the Court will not consider these claims. Cf. Anderson v. DSM N.V., 589 F. Supp. 2d 528, 534 n.5
(D.N.J. 2008) (declining to consider claim not pleaded in the complaint).
8
(See, e.g., Compl. ¶ 52 at 10 (“The plaintiff has a right, privilege, and immunity secured by the Fourteenth
Amendment to the United States Constitution and the laws of the United States to equal protection under law and to
be free from racial discrimination by defendant Alvin Pettit, Attorney John [J.] Hallanan or the police of Jersey City.
By their conduct in preventing and disrupting the plaintiff’s training business program and closing his business, the
defendants denied the plaintiff equal protection of the law and discriminated against the plaintiff on the basis of race.”);
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In support of their motion, Defendants contend that “Plaintiff’s claims for unlawful
eviction from the Bethune Center and any related claims are barred by res judicata.” (Def. Mov.
Br. at 19-20). But Defendants fail to address two of the three elements required to establish the
affirmative defense of res judicata. See Smith, 2018 WL 588923, at *6 (listing the three elements
of res judicata). Defendants state only that “all claims in the Federal Complaint regarding the
alleged unlawful eviction arise out of the same transaction (i.e. plaintiff’s occupancy of the
Bethune Center) and involve the same parties that were involved in the state matter bearing docket
no. HUD-LT-11861-15,” (i.e., Carrington III). (Def. Mov. Br. at 19-20). Even if the Court were
to determine from the parties’ exhibits that the prior suit involved the same parties or their privies,
Defendants nowhere address whether the consent order—signed only by the parties’ counsel and
not by the New Jersey Superior Court—comprises a final judgment on the merits.
Moreover, Defendants advance the unsupported argument that “[a]ny claims for unlawful
conduct by the Defendants regarding the removal of the Remarkable Mossi from the Bethune
Center are (a) affirmative defenses that should have been raised to defend against the eviction
and/or, (b) amount to counterclaims that should have been brought in the Superior Court . . . and/or,
(c) plaintiff should have appealed the entry of the consent order.” (Id. at 19).9 Yet the consent
order states: “The Defendant [i.e., Remarkable Mossi] also does not waive any legal rights by
signing this Agreement. The payment of $1,350.00 is not a concession that the Tenant’s rent
was/is $1,350.00 and not a waiver of that defense.” (D.E. No. 98-14 at 2).
id. ¶ 61 at 11 (“Director Alvin Pettit and John Hallanan did not only post the defamatory notice, they told all of
plaintiff[’s] customers to take their business somewhere else.”)).
9
(See also Def. Mov. Br. at 10 (“The claims for unlawful eviction constitute affirmative defenses and/or
counterclaims that should have previously been brought and/or plaintiff should have appealed the entry of the consent
order.”) (without citation to authority)).
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Because Defendants have not addressed all the elements required to establish the
affirmative defense of res judicata on Plaintiff’s claims stemming from the Remarkable Mossi’s
alleged unlawful eviction, the Court will order the parties to submit supplemental briefing
addressing this issue. In their supplemental submissions, the parties may—with citations to the
relevant authorities—raise any and all arguments relevant to Plaintiff’s claims premised on the
alleged unlawful eviction. Accordingly, the Court will reserve its determination of Defendants’
motion and Plaintiff’s cross-motion for summary judgment on Plaintiff’s claims arising from the
Remarkable Mossi’s eviction from the Bethune Center.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion on Plaintiff’s claims
arising from the 2011 and 2014 Summonses, DENIES Plaintiff’s cross-motion for summary
judgment on these claims, and RESERVES its determination on the parties’ motions relating to
Plaintiff’s claim of unlawful eviction from the Bethune Center pending submission of the parties’
supplemental briefing. An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
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