CARR v. DEPARTMENT OF HUMAN SERVICES et al

Filing 19

MEMORANDUM & ORDER granting the Motion to Administratively stay this matter; Denying 9 Motion to Dismiss. Signed by Judge Peter G. Sheridan on 10/9/2014. (eaj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KATHLEEN CARR,
Plaintiff,

Civil Action No: 13-cv-5478 (PGS)
MEMORANDUM AND ORDER

V.

STATE OF NEW JERSEY DEPARTMENT
OF HUMAN SERVICES, et a!.
Defendants.

This matter is before the Court on a motion to dismiss in part pursuant to Fed. R. Civ. P.
12(b)(6) (ECF No. 9). More specifically, Defendants ask the Court to 1) dismiss Count II of the
Complaint based upon the Conscientious Employee Protection Act’s (CEPA) waiver provision,
or alternatively to stay that count of the Complaint; and 2) by way of a letter to a reply
memorandum, dismiss the New Jersey Law against Discrimination (LAD) claim.
With regard to Plaintiffs CEPA claim (Count II) and the LAD claim, Defendant argues
that they are barred from being asserted by the doctrine of collateral estoppel since both are
being litigated in another lawsuit. That is, the issues raised by Plaintiff in the instant matter are
identical to the issues raised by Plaintiff during her hearing before Administrative Law Judge
Futey (AU Futey), which seeks termination of Plaintiffs employment. See In the Matter of
Kathleen Carr, Office of Administrative Law, Dkt. No. CSV 740-2, CSV 3844-12, Agency Dkt.
20 12-2828.

Defendant argues that AU Futey, in his August 16, 2013 decision, rejected

Plaintiff’s CEPA and discrimination claims which were raised during the hearing. After the
hearings, AU Futey relied upon a recent decision of the New Jersey Supreme Court. See Winters

v. North Hudson Regional Fire and Rescue, 212 N.J. 67, 72-73 (N.J. 2012); In Re Kathleen
Carr, OAL Docket No. 3844-12, p. 21(8/16/13).
Currently, the decision of AU Futey is the subject of an appeal to the Superior Court of
New Jersey, Appellate Division. When applying collateral estoppel, there is an assessment of
considerations such as ‘finality and repose; prevention of needless litigation; avoidance of
duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts,
confusion and uncertainty; and basic fairness.” Olivieri v. YMF Carpet, Inc., 186 N.J. 511, 522
(quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599-600 (N.J. 2005). Since Plaintiffs

Complaint has three related counts, it is prudent to stay all counts and await the Appellate
Division’s decision in order to avoid duplication and confusion. Once the Appellate Division
has rendered a decision, either party may seek relief.
ORDER
This matter having come before the Court on a motion to dismiss in part pursuant to Fed.
R. Civ. P. 12(b)(6) (ECF No. 9): and the Court having reviewed the submissions of the parties;
for the reasons set forth above;
IT IS on this

th
9

day of October, 2014,

ORDERED that the motion to administratively stay the matter is granted; and the motion
to dismiss is denied without prejudice.

PETER G. SHERIDAN, U.S.D.J.