PASQUA et al v. THE COUNTY OF HUNTERDON et al
OPINION filed. Signed by Judge Freda L. Wolfson on 11/27/2017. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARGARET PASQUA and
Civil Action No. 15-3501 (FLW) (DEA)
THE COUNTY OF HUNTERDON;
THE HUNTERDON COUNTY BOARD :
OF CHOSEN FREEHOLDERS; et al.,
WOLFSON, United States District Judge:
Following the termination of their employment with the County of Hunterdon (the
“County”), Plaintiffs Margaret Pasqua and Kimberly Browne (collectively, “Plaintiffs”) filed two
separate, but similar, lawsuits in state court challenging their termination, which cases were
subsequently removed to this Court on the basis of federal question jurisdiction. See Pasqua et
al. v. The County of Hunterdon et al., No. 14-4203 (“Pasqua I”) and Pasqua et al. v. The County
of Hunterdon et al., No. 15-3501 (“Pasqua II”). On August 11, 2016, this Court issued an
Omnibus Opinion granting summary judgment as to the majority of Plaintiffs’ claims in the first
of those cases, Pasqua I, and remanded the remainder of that case to state court. See Pasqua v.
Cty. of Hunterdon, No. 14-4203, 2016 WL 4253958 (D.N.J. Aug. 11, 2016) (the “Omnibus
Opinion”). In the same Opinion, the Court also ruled upon motions to dismiss filed in the instant
Presently before the Court is Defendants, the County, the Hunterdon County Board of
Chosen Freeholders (the “Board”), and various County employees and officers’1 (collectively
with the County and the Board, the “Moving Defendants”) Motion for Summary Judgment as to
certain claims asserted by Plaintiffs in Pasqua II. For the reasons that follow, the Court: (1)
grants the Moving Defendants’ Motion for Summary Judgment as to Counts Five, Twelve,
Thirteen, and Fourteen, the federal claims asserted by Plaintiffs in the Pasqua II Complaint; (2)
declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims; and (3)
denies the remainder of Defendants’ Motion for Summary Judgment without prejudice.
Accordingly, this matter is remanded to the Superior Court of New Jersey, Law Division,
Hunterdon County, for further proceedings.
This matter has a protracted procedural history, involving two separate litigations that
have proceeded through state and federal courts. Because the parties are intimately familiar with
the facts and procedural history of this case, the Court will only recount the relevant portions
herein, and will also incorporate the background facts set forth in the Omnibus Opinion. See
Pasqua, 2016 WL 4253958 at *2-5.
The instant dispute arises out of the termination of Plaintiffs’ employment with the
County. In May 2008, Ms. Pasqua was appointed to the positions of Chief Financial Officer
Specifically, the following County employees and officers move for summary judgment:
Cynthia J. Yard, George B. Melick, William G. Mennen, Robert G. Walton, J. Matthew Holt,
John King, John E. Lanza, Suzanne Lagay. The Court notes that individual defendant Edward J.
Florio has not moved for summary judgment.
The following facts are undisputed, except where noted, and are viewed in the light most
favorable to Plaintiffs, the non-moving parties on the instant Motion for Summary Judgment.
(“CFO”) and Treasurer of the County. Defendants’ Statement of Material Facts (“Defs.’
Statement”), ¶ 1; Plaintiffs’ Response to Defendants’ Statement of Material Facts (“Pls.’ Resp.”),
¶ 1. In her positions as CFO and Treasurer, Ms. Pasqua had responsibility for the County’s
financial statements, budget, and books. Plaintiffs’ Supplemental Statement of Material Facts
(“Pls.’ Suppl. Statement”), ¶ 4; Defendants’ Response to Plaintiffs’ Supplemental Statement of
Material Facts (“Defs.’ Resp.”), ¶ 4. Also in 2008, Ms. Browne was hired as the County’s
Director of Finance.3 Defs.’ Statement at ¶ 9; Pls.’ Resp. at ¶ 9. Ms. Pasqua and Ms. Browne
served in their respective positions until December 30, 2013, when they were both terminated by
the Board for, inter alia, allegedly authorizing improper payments of medical benefits and failing
to maintain accurate financial records. Pls.’ Suppl. Statement at ¶ 1; Defs.’ Resp. at ¶ 1.
According to Defendants, Plaintiffs occupied the top two positions in the County’s
Finance Department (“Finance”), which bore ultimate responsibility for all financial matters in
the County. Defs.’ Statement at ¶¶ 15-16; Pls.’ Resp. at ¶¶ 15-16. Defendants contend, and
Plaintiffs deny, that as part of Plaintiffs’ job duties, they were “were responsible for the
development of internal controls to protect County assets and for recommendations ensuring
accurate fiscal and financial management,” as well as for implementing “internal controls to
avoid the County’s payment of health benefits to ineligible persons.” Defs.’ Statement at ¶¶ 1718; Pls.’ Resp. at ¶¶ 17-18.
In 2013, the County hired an accounting firm to conduct an internal investigation and
audit (the “Audit”) of the County’s finances. The Audit revealed that, for years, numerous
aspects of the County’s finances had been misstated and misrepresented, with negative financial
As Director of Finance, Ms. Browne served as Ms. Pasqua’s direct supervisor. Defs.’
Statement at ¶ 9; Pls.’ Resp. at ¶ 9.
consequences to the County. Defs.’ Statement at ¶¶ 29, 44-50, 53-55, 58-59, 62, 71-72, 74, 78,
86, 98, 105; Pls.’ Resp. at corresponding paragraphs. The parties dispute whether Plaintiffs were
responsible for the issues detected in the Audit.4 In June of 2013, as a result of the Audit,
Plaintiffs were placed on administrative leave and the accounting firm of Donohue Gironda &
Doria (“Donohue”) was engaged to undertake the operation of Finance and to identify necessary
improvements. Defs.’ Statement at ¶¶ 29-30; Pls.’ Resp. at ¶¶ 29-30.
On September 24, 2013, the County’s Administrator, Cynthia J. Yard, served Plaintiffs
with a notice of disciplinary action, charging Plaintiffs with the following offenses:
(1) Neglect of Duty;
(2) Serious mistake due to carelessness where . . . there is a financial loss to the
(3) Failure to complete regular report;
(4) Incompetency of inability to perform assigned duties;
(6) Conduct Unbecoming a Public Employee;
(7) Violation of a rule, regulation, policy, procedure, order or administrative
decision where there is a financial loss to the County; and
(8) Other sufficient cause.
Pls.’ Suppl. Statement at ¶ 7; Defs.’ Resp. at 7. The County scheduled the first hearing on
Plaintiffs’ charges for the same day, with both Plaintiffs to appear jointly. Pls.’ Suppl. Statement
at ¶¶ 10-12; Defs.’ Resp. at ¶¶ 10-12. Despite Plaintiffs’ arguments that they were entitled to
Specifically, Defendants contend that Plaintiffs were responsible for these errors, yet
disclaimed responsibility for internal controls and quality assurance efforts, despite a directive
from Cynthia J. Yard, the County’s Administrator, that Plaintiffs should develop internal
controls to address the issues identified in the Audit. Defs.’ Statement at ¶¶ 123-130; Pls.’ Resp.
at ¶¶ 123-130. Conversely, Plaintiffs take the position that they are not responsible for the issues
detected in the Audit. To that end, Plaintiffs maintain that, contrary to Defendants’ assertions,
many of the errors in the County’s financial records originated from failures by the County’s
human resources department to perform its designated responsibilities. Pls.’ Suppl. Statement at
¶ 22; Defs.’ Resp. at ¶ 22. Furthermore, Plaintiffs claim that a number of the errors already
appeared in the County’s financial books in May 2008, when Plaintiffs were appointed to their
respective positions in the finance department. Pls.’ Statement at ¶¶ 26-27; Defs.’ Resp. at ¶¶
separate hearings, the Hearing Officer in the matter, Edward J. Florio, ultimately conducted joint
hearings concerning the charges against Plaintiffs over the course of nine days. Pls.’ Suppl.
Statement at ¶¶ 10-12; Defs.’ Resp. at ¶¶ 10-12.
On December 27, 2013, after nine days of hearings, wherein both sides presented
testimony and documentary evidence, and Plaintiffs were represented by an attorney and
permitted to cross-examine witnesses, the Hearing Officer issued a nine-page Preliminary
Report, recommending that Plaintiffs be terminated based on the asserted charges. Defs.’
Statement at ¶¶ 33-34, 145; Pls.’ Resp. at ¶¶ 33-34, 145; Pls.’ Suppl. Statement at ¶¶ 12-13;
Defs.’ Resp. at ¶¶ 12-13. On December 30, 2013, the Board voted in favor of terminating
Plaintiffs from their respective positions. Defs.’ Statement at ¶ 147; Pls.’ Resp. at ¶ 147. On
May 16, 2014, following Plaintiffs’ termination, the Hearing Officer issued a Final Report.
Defs.’ Statement at ¶ 148; Pls.’ Resp. at ¶ 148.
Following the termination of their employment with the County, Plaintiffs filed Pasqua I
and the instant suit in state court, which cases were subsequently removed to this Court on the
basis of federal question jurisdiction. The Court will address the relevant procedural history
pertaining to Pasqua I and Pasqua II, in turn.
On February 14, 2014, Plaintiffs filed Pasqua I in the Superior Court of New Jersey, Law
Division, Hunterdon County, naming as defendants the County and the Board (collectively, the
“County Defendants”). Plaintiffs’ original complaint asserted that they were entitled to, inter alia,
a de novo review by the Superior Court of their termination hearings, pursuant to N.J.S.A. 40A:9-
25. Plaintiffs also asserted claims against the County Defendants, alleging that the County
Defendants terminated them for political reasons, in violation of N.J.S.A. 40A:9-25.
On May 9, 2014, the Honorable Thomas C. Miller, P.J.Cv., dismissed Ms. Browne’s claim
for de novo review under N.J.S.A. 40A:9-25, finding that Ms. Browne was not entitled to a de
novo review because she was an at-will employee. Margaret Pasqua, et al., v. The County of
Hunterdon, et al, Civ. No. HNT-L-66-14, slip op at 7-8 (N.J. Law Div. May 9, 2014). However,
because Plaintiffs alleged that Ms. Browne was terminated for political reasons, Judge Miller
determined that she could state a claim for violation of N.J.S.A. 40A:9-25 on that basis. Id. at 8.
Moreover, Judge Miller opined that although Ms. Browne did not have a federal property interest
in her job, she might have a federal liberty interest in her “good name, reputation. honor, or
integrity” that entitled her to a due process hearing under the Fourteenth Amendment of the United
States Constitution to defend her good name. Id. at 9-10. Accordingly, Judge Miller gave
Plaintiffs leave to amend their Complaint in Pasqua I to bring claims on behalf of Ms. Browne for
political discharge, in violation of New Jersey law, and for federal Fourteenth Amendment due
process violations. Id. at 12-13.
On June 20, 2014, Plaintiffs filed the Amended Complaint in Pasqua I (the “Pasqua I
Amended Complaint”), asserting seven claims against the County Defendants. In Counts One and
Three, Plaintiffs requested a de novo review of the County’s decision to terminate them from their
employment, pursuant to N.J.S.A. 40A:9-25, and sought, inter alia, back pay and lost benefits, a
determination clearing Plaintiffs’ names, and “such other relief and damages as may be obtainable
. . . under N.J.S.A. 40:9-25.” Pasqua I Am. Compl. ¶¶ 1-6, 10, 16 (emphasis added). In Counts
Two and Four, Plaintiffs asserted claims for political discharge, in violation of N.J.S.A. 40A:9-25,
seeking the same relief as Counts One and Three. Id. at ¶¶ 7-9, 17-19. In Count Five, Ms. Browne
alleged that her due process rights were violated, in violation of the United States Constitution and
the New Jersey Constitution, based on “her right to liberty including her rights to her reputation
and her right to seek, gain, and maintain, contract for, and engage in employment and her right to
fundamental fairness.” Id. at ¶¶ 20-24. Specifically, Count Five alleged that Ms. Browne’s
“discharge for cause imposes on her a stigma or other disability that affects her freedom to take
advantage of employment opportunities and as a result affects her reputation and employment
eligibility.” Id. at ¶ 22. Count Five further alleged that “the procedure and process of the hearing
and the Decision were deficient and inadequate in numerous and various respects which violated
her due process rights . . . referenced above.” Id. at ¶ 24. Count Six incorporated the allegations
in Count Five, and alleged further that the hearing and decision to terminate Ms. Browne violated
her due process rights, because it was “deficient and inadequate, . . . not reasoned, failed to provide
findings of fact, a reference to the evidence, and the specific rationale for the decision.” Id. at ¶¶
25-29. Counts Five and Six sought back pay and lost benefits, and “other relief and damages.”
Id. at ¶¶ 24, 29 (emphasis added). Count Seven sought a declaration that various “damages claims”
arising from Plaintiffs employment with the County did not need to be pled at that time. Id. at ¶¶
On July 2, 2014, Defendants removed Pasqua I to this Court, under 28 U.S.C. § 1331,
based on original jurisdiction arising from Ms. Browne’s federal due process claims. The parties
filed cross motions for summary judgment on December 11, 2015, and December 21, 2015, which,
as described below, were resolved in this Court’s August 11, 2016 Omnibus Opinion.
On April 28, 2015, Plaintiffs filed the instant complaint in state court (the “Pasqua II
Complaint”), naming as defendants the County, the Board, and various County employees and
officers,5 in both their official and individual capacities, and certain accounting professionals6
(collectively, “Defendants”). The Pasqua II Complaint is based on the same factual conduct
underlying the Pasqua I Amended Complaint; i.e., Plaintiffs assert claims relating to the
termination of their employment with the County. Specifically, the Pasqua II Complaint asserts
the following twenty-one causes of action:
Count One: Plaintiffs assert a state law claim for constructive discharge. Pasqua II
Compl. ¶¶ 1-15.
Count Two: Plaintiffs assert a damages claim alleging that the County and various
Individual Defendants violated New Jersey’s Open Public Meetings Act, N.J.S.A. 10:46 et seq., and the requirements of a RICE Notice under N.J.S.A. 10:4-12(b)(8). Id. at ¶¶
Count Three: Plaintiffs assert a state law claim for defamation and damages to their
reputations. Id. at ¶¶ 21-25.
Count Four: Plaintiffs assert a state law claim for harassment. Id. at ¶¶ 26-44.
Count Five: Plaintiffs allege that after they opined that the County needed a tax rate
increase, various individual defendants retaliated against them on the basis of political
motivations, in violation of N.J.S.A. 40A:9-25, as well as in violation of Plaintiffs’ due
process and First Amendment rights under the United States Constitution and New
Jersey Constitution. Id. at ¶¶ 45-58.
Count Six: Plaintiffs allege that the Board violated its duty of care, under the New
Jersey Constitution, to protect Plaintiffs against workplace harassment, discrimination,
and retaliation. Id. at ¶¶ 59-64.
Count Seven: Plaintiffs allege that the Board’s failure to uphold their duty of care to
Plaintiffs, as described in Count Six, was negligent. Id. at ¶¶ 65-67.
Specifically, the Pasqua II Complaint names the following defendants: Cynthia J. Yard,
George B. Melick, William G. Mennen, Robert G. Walton, J. Matthew Holt, John King, John E.
Lanza, Suzanne Lagay, and Edward J. Florio (collectively, the “Individual Defendants”).
Specifically, Pasqua II asserted state professional malpractice and tort claims against the
following accounting firms and accountants: Donohue Gironda & Doria, Louis J. Garbaccio,
Frederic J. Tomkins (“Donohue Firm”), Samuel Klein & Co., Michael McGuire (“Samuel
Firm”), Wiss & Co., LLP and David J. Gannon (“Wiss Firm”) (collectively, the “Accountant
Defendants”). Nonetheless, as discussed, infra, this Court subsequently dismissed all claims
against the Accountant Defendants.
Count Eight: Plaintiffs allege that the County, Board, and Individual Defendants failed
to investigate, stop, prohibit, and correct the pattern of workplace harassment and
retaliation directed towards Plaintiffs. Id. at ¶¶ 68-73.
Count Nine: Plaintiffs allege that various defendants breached a duty to Plaintiffs to
perform an independent audit and investigation of the circumstances leading to
Plaintiffs’ terminations. Id. at ¶¶ 74-79.
Count Ten: Plaintiffs allege that Defendants wrongfully brought disciplinary charges
against them, pursuant to a pattern of harassment and retaliation by Defendant Yard
against Plaintiffs. Id. at ¶¶ 80-86.
Count Eleven: Plaintiffs allege that they were unlawfully terminated from their
employment for political reasons, prior to the issuance of a final decision in their
administrative hearing, in violation N.J.S.A. 40A:9-25. Id. at ¶¶ 87-94.
Count Twelve: Plaintiffs allege that they were terminated for political reasons, and that
the Individual Defendants failed to adequately consider whether Plaintiffs termination
was justified, in violation of Plaintiffs “rights and privileges under the Constitution and
laws of the United States and the State of New Jersey and in violation of their due
process and First Amendment rights under 42 U.S.C.A. Section 1983 and 1985.” Id. at
Count Thirteen: Plaintiffs allege that following Plaintiffs’ hearing, the Individual
Defendants failed to read, study, and analyze the report of the Hearing Officer, for
political reasons, in violation of N.J.S.A. 40A:9-25, Plaintiffs’ “rights and privileges
under the laws of the United States and the State of New Jersey and in violation of their
due process and First Amendment rights under 42 U.S.C.A. Section 1983 and 1985.”
Id. at ¶¶ 100-06.
Count Fourteen: Plaintiffs assert a § 1983 claim against Defendant Florio, alleging that
Florio’s conduct in connection with Plaintiffs’ hearings violated their due process rights
under the United States Constitution. Id. at ¶¶ 107-17. Specifically, Plaintiffs allege
that Defendant Florio violated Plaintiffs “right to liberty including their rights to their
reputations and their rights to seek, gain, and maintain, contract for, and engage in
employment and their right to fundamental fairness.” Id. at ¶ 111. Count Fourteen
further alleges that Plaintiffs “discharge for cause imposes on them a stigma or other
disability that affects their freedom to take advantage of employment opportunities and
as a result affects their reputation and employment eligibility.” Id.
Counts Fifteen through Eighteen: Plaintiffs allege various state law claims against the
Accountant Defendants, each of which were dismissed in this Court’s Omnibus
Opinion. Id. at ¶¶ 118-143.
Count Nineteen: Plaintiffs allege that Defendants retaliated against Plaintiffs in
violation of the New Jersey Conscientious Employee Protection Act (“CEPA”),
N.J.S.A. 34:19-1 et seq. Id. at ¶¶ 144-52.
Count Twenty: Plaintiffs allege a state law spoliation claim against Defendant Yard
and the County. Id. at ¶¶ 153-59.
Count Twenty One: Plaintiffs allege a claim for intentional infliction of emotional
distress against Defendant Yard and the County. Id. at ¶¶ 160-63.
As this Court explained in its Omnibus Opinion, “the Pasqua II Complaint is not a model of
clarity.” Pasqua, 2016 WL 4253958 at *5. To that end, while Plaintiffs assert the aforementioned
twenty-one separate causes of action, “not all causes of action are specifically identified such that
it would be readily apparent what type of claim(s) Plaintiffs are bringing in each count,” as well
as which Defendants are implicated in each count. Id. Nonetheless, it is clear – and there is no
dispute – that of the twenty-one counts asserted, only Counts 5, 12, 13, and 14 (collectively, the
“Federal Claims”) assert causes of action arising under federal law. On May 22, 2015, Pasqua II
was removed to this Court based on federal question jurisdiction arising from the Federal Claims.
The August 11, 2016 Omnibus Opinion
On August 11, 2016, this Court issued an Omnibus Opinion in response to summary
judgment motions filed in Pasqua I, and motions to dismiss filed in the instant case. With
respect to Pasqua I, the Court dismissed all counts asserted in the Amended Complaint, with the
exception of Count One, Plaintiffs’ state law claim seeking de novo review of Ms. Pasqua’s
termination.7 Because this Court’s analysis of Plaintiffs’ federal claims in Pasqua I is central to
the instant dispute, the Court will briefly recount its discussion of those claims.
The Court declined to exercise supplemental jurisdiction over Count One, and remanded that
claim to state court for further proceedings.
In the Omnibus Opinion, the Court noted that, in Counts Five and Six of the Pasqua I
Amended Complaint, Ms. Browne asserted claims against the County Defendants, pursuant to 42
U.S.C. § 1983, for deprivation of procedural due process, in violation of the Fourteenth
Amendment of the United States Constitution. Specifically, Ms. Browne alleged that that she
was deprived of her liberty interest in her reputation without sufficient due process of law. See
Pasqua I Am. Compl. ¶¶ 22-23.
The Court explained that in order to state a claim for deprivation of procedural due
process under § 1983, a plaintiff must demonstrate that “(1) [s]he was deprived of an individual
interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or
property,’ and (2) the procedures available to [her] did not provide ‘due process of law.’” Hill v.
Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). The Court further observed that, in
order to state a due process claim for deprivation of a liberty interest in one’s reputation, the
Third Circuit requires a plaintiff to show “a stigma to [her] reputation plus deprivation of some
additional right or interest.” Id. at 236 (citing Paul v. Davis, 424 U.S. 693, 701 (1976); Siegert v.
Gilley, 500 U.S. 226, 233-234 (1991); Edwards v. California Univ. of Pennsylvania, 156 F.3d
488, 492 (3d Cir. 1998). Within the public employment context, the Court noted that the stigmaplus test operates as follows:
Applied in the context of public employment, under the stigma-plus test, “when an
employer ‘creates and disseminates a false and defamatory impression about the
employee in connection with his termination,’ it deprives the employee of a protected
liberty interest.” Id. (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)). As the Third
Circuit has explained, “[t]he creation and dissemination of a false and defamatory
impression is the ‘stigma,’ and the termination is the ‘plus.’ When such a deprivation
occurs, the employee is entitled to a name-clearing hearing.” Borough of Kutztown, 455
F.3d at 236. In that connection, to satisfy the “stigma” prong of the test, a plaintiff must
demonstrate that her employer’s stigmatizing statements “(1) were made publicly and (2)
were false.” Id. (internal citations omitted). A plaintiff will satisfy the “plus” prong of the
test if she has been terminated or constructively discharged from her position as a public
employee. Id. at 238.
Pasqua, 2016 WL 4253958 at *14.
The Court dismissed Ms. Browne’s procedural due process claims, finding that, although
Ms. Browne satisfied the “plus” prong of the stigma-plus test by demonstrating that she was
terminated or constructively discharged, she failed to satisfy the “stigma” prong of the test,
because she “presented no evidence that the County Defendants have publicly disseminated any
information that would be injurious to Ms. Browne's reputation.” Id. at *15. To that end, the
Court explained that while Ms. Browne generally indicated that the County Defendants made
public comments that were detrimental to her reputation, “nowhere in either Plaintiffs' statement
of material facts not in dispute or their briefs do Plaintiffs identify what these statements were,
when they were made, or how they were disseminated.” Id. at *16. Accordingly, the Court
found that Plaintiffs failed to set forth evidence of the alleged public dissemination of
defamatory comments sufficient to withstand a motion for summary judgment, and dismissed
Ms. Browne’s federal due process claims.8
In dismissing Ms. Browne’s federal due process claims, the Court also rejected Ms. Browne’s
arguments that, despite her status as an at-will employee, she was entitled, under the Due Process
Clause of the Fourteenth Amendment, to have a pre-termination hearing to clear her name.
Pasqua, 2016 WL 4253958 at *14. Specifically, the Court found that, in order to have a
property interest in one's employment that is protected by the Fourteenth Amendment, “a person
must have more than a unilateral expectation of continued employment; rather, she must have a
legitimate entitlement to such continued employment.” Id. (quoting Elmore v. Cleary, 399 F.3d
279, 282 (3d Cir. 2005). And, because the law is clear that an at-will employee, like Ms. Browne,
“does not have a legitimate entitlement to continued employment because she serves solely at the
pleasure of her employer,” Elmore, 399 F.3d at 282, the Court found that Ms. Browne could not
bring a Fourteenth Amendment due process claim merely because she was terminated from her
public employment. Pasqua, 2016 WL 4253958 at *14. Additionally, the Court noted that
although Ms. Browne asserted in the Pasqua I Amended Complaint that she was deprived of a
constitutional “right to fundamental fairness,” Ms. Browne did not assert such a claim separate
from her reputational liberty interest claim, and Plaintiffs provided no substantive arguments in
their briefing to support the recognition of such a right in that case. Id. at *15 n. 11.
Accordingly, the Court declined to construe the reference to a right to fundamental fairness as a
separate claim under the Fourteenth Amendment. Id. Importantly, despite this Court’s prior
In the Omnibus Opinion, the Court also granted summary judgment as to Plaintiffs’
political discharge claims, asserted in Counts Two and Four of the Pasqua I Amended
Complaint. In Counts Two and Four, Plaintiffs alleged that the Board removed Plaintiffs from
their positions with the County for political reasons, in violation of N.J.S.A. 40A:9-25,9 after
Plaintiffs had advised one of the Board members, Robert G. Walton, of their belief that the
County needed a tax increase. Importantly, while Plaintiffs did not directly allege that they were
terminated for political reasons in violation of the First Amendment, the Court, with consent of
the parties, construed Plaintiffs’ state-based political discharge claims under the First
Amendment. See Pasqua, 2016 WL 4253958 at *10. In that regard, the Court explained that to
“state a prima facie case for political discharge in violation of the First Amendment, a plaintiff
‘must show that (1) she was employed at a public agency in a position that does not require
political affiliation, (2) she was engaged in constitutionally protected conduct, and (3) this
conduct was a substantial or motivating factor in the government's employment decision.’” Id.
(quoting Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir. 2007)).
The Court found that Plaintiffs failed to meet the second prong of the constitutional test,
because Plaintiffs’ statement to Mr. Walton was made in the course of their official duties as
public employees, and therefore, the statement was not constitutionally protected conduct under
ruling, here, Plaintiffs again have not distinguished their fundamental fairness claim against the
Hearing Officer, asserted in Count Fourteen of the Pasqua II Complaint, from their reputational
liberty interest claim. See Pasqua II Compl. ¶ 111 (asserting a due process claim for a violation
of Plaintiffs’ “right to liberty including their rights to their reputations and their rights to seek,
gain, and maintain, contract for, and engage in employment and their right to fundamental
fairness.”). Nor have Plaintiffs attempted to make such a distinction in their briefing. Thus, the
Court will again decline to construe the reference to a right to fundamental fairness as a separate
claim under the Fourteenth Amendment.
N.J.S.A. 40A:9-25 provides, in relevant part, that “[n]o [County] officer or employee shall be
removed from his office or position for political reasons.” N.J.S.A. 40A:9-25.
the First Amendment. Pasqua, 2016 WL 4253958 at *11. Additionally, the Court found that
Plaintiffs had not satisfied the third prong of the test, because they failed to demonstrate that
three of the five Board members had knowledge of Plaintiffs’ statement to Mr. Walton, and thus,
a reasonable jury could not conclude that the Board as a whole terminated Plaintiffs for their tax
views. Id. at *12-13. Accordingly, the Court granted summary judgment as to “Plaintiffs' claims
for political discharge under N.J.S.A. 40A:9-25 (Counts Two and Four), as well as any such
claims asserted under 42 U.S.C.S. § 1983.” Id. at *13 (emphasis added).
With respect to Pasqua II, the Court dismissed all claims asserted against the Accountant
Defendants. Nonetheless, because the Court determined that the remaining claims asserted
against the County Defendants and the Individual Defendants were substantially similar, if not
identical, to those asserted in Pasqua I, it ordered Plaintiffs to show cause as to why the
decisions rendered in Pasqua I should not apply to the federal claims in Pasqua II. The Court
subsequently vacated its order to show cause and directed Defendants to file dispositive motions,
if they so elected, on the issue of whether the Court’s resolution of the federal claims in Pasqua I
was dispositive of Plaintiffs’ federal claims in this case. In response to the Court’s directive, the
Moving Defendants moved for summary judgment on April 28, 2017. Plaintiffs filed their
opposition on June 6, 2017, and the Moving Defendants filed their reply on June 28, 2017.
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v.
Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). A factual dispute is genuine only if
there is “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party,” and it is material only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).
The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp., 477 U.S. at 322. Once the moving party has satisfied this initial
burden, the opposing party must identify “specific facts which demonstrate that there exists a
genuine issue for trial.” Orson, 79 F.3d at 1366; see Gleason v. Norwest Mortg. Inc., 243 F.3d
130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact if it has
provided sufficient evidence to allow a jury to find in its favor at trial.”). The non-moving party
must present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Not every issue of fact is
sufficient to defeat a motion for summary judgment; issues of fact are genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. Additionally, the nonmoving party cannot rest upon mere allegations; he or she must
present actual evidence that creates a genuine issue of material fact. See FED. R. CIV. P. 56(e);
Anderson, 477 U.S. at 249. In conducting a review of the facts, the nonmoving party is entitled
to all reasonable inferences and the record is construed in the light most favorable to that party.
See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). Accordingly,
it is not the Court’s role to make findings of fact, but to analyze the facts presented and
determine if a reasonable jury could return a verdict for the nonmoving party. See Brooks v.
Kyler, 204 F.3d 102, 105, n.5 (3d Cir. 2000); Big Apple BMW v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
At the outset, the Court notes that because, for the reasons set forth below, I ultimately
conclude that dismissal of each of the Federal Claims asserted in Pasqua II is warranted, and
because, as in Pasqua I, the Court declines to exercise supplemental jurisdiction over Plaintiffs’
remaining state law claims, the following analysis pertains solely to Plaintiffs’ Federal Claims.10
The Court notes that while the Moving Defendants have moved for summary judgment of
Counts Five, Twelve, and Thirteen on res judicata grounds, in Count Fourteen of the Pasqua II
Complaint, Plaintiffs assert a § 1983 claim solely against the Hearing Officer, Edward J. Florio –
alleging that Mr. Florio violated Plaintiffs’ due process right to liberty in conducting the hearings
on Plaintiffs’ termination – and Mr. Florio has not moved for summary judgment. Specifically,
Count Fourteen alleges that Mr. Florio denied Plaintiffs a name-clearing hearing by refusing to
conduct separate hearings for Plaintiffs and for failing to support the reasoning in his Preliminary
Report. See Pasqua II Compl. ¶¶ 107-17. With respect to Mr. Florio, the non-moving
Defendant, the Court notes that while res judicata is an affirmative defense, which must
generally be raised by the moving party, Ciarrocchi v. Kennedy Mem'l Hosp., 378 F. App'x 239,
241 (3d Cir. 2010), even if no party has raised a res judicata defense, a court may sua sponte
dismiss a claim on res judicata grounds “if a court is on notice that it has previously decided the
issue presented . . . .” Arizona v. California, 530 U.S. 392, 412 (2000) (citation and internal
quotation marks omitted); see Reaves v. Pennsylvania Bd. of Prob. & Parole, 580 F. App'x 49,
52 (3d Cir. 2014) (“We have suggested that sua sponte consideration of preclusion can be
appropriate in certain circumstances.”); see, e.g., Salerno v. Corzine, 449 F. App'x 118, 122 (3d
Cir. 2011) (affirming district court’s sua sponte dismissal on the basis of claim preclusion);
Ciarrocchi, 378 F. App'x 239, 241 (3d Cir. 2010) (affirming the district court’s sua sponte
dismissal of the complaint on the ground of issue preclusion); King v. E. Lampeter Twp., 69 F.
App'x 94, 96 (3d Cir. 2003) (affirming the district court’s finding that the plaintiff was “barred
from raising any allegations relating to claims that were or could have been raised in [the first
action] by principles of [claim preclusion] and collateral estoppel,” where the district court had
sua sponte raised both preclusion defenses); Bieregu v. Ashcroft, 259 F. Supp. 2d 342, 352
(D.N.J. 2003) (sua sponte raising issue preclusion to dismiss a claim); Hussein v. Lolita Reality,
No. 11-3955, 2013 WL 5530256, at *3-4 (D.N.J. Oct. 3, 2013) (sua sponte raising claim
preclusion to bar a plaintiff from asserting a claim). Indeed, the ability to sua sponte raise a
preclusion defense “is fully consistent with the policies underlying res judicata: it is not based
Moving Defendants argue that Plaintiffs are barred from asserting the Federal Claims
under the doctrines of claim preclusion and issue preclusion. Specifically, Moving Defendants
argue that, under the doctrine of claim preclusion, this Court’s final judgment on Plaintiffs’
federal political discharge claims (Counts Two and Four of the Pasqua I Amended Complaint)
and Ms. Browne’s procedural due process claims (Counts Five and Six of the Pasqua I Amended
Complaint) in Pasqua I precludes Plaintiffs from asserting the Federal Claims in Pasqua II.11
Alternatively, Moving Defendants contend that the issues presented in Plaintiffs’ Federal Claims
were adjudicated in Pasqua I, and that Plaintiffs are barred under the doctrine of issue preclusion
from relitigating those issues. Before applying those preclusion concepts to the facts of this case,
however, I will briefly review the distinction between claim preclusion and issue preclusion.
“Res judicata encompasses two preclusion concepts-issue preclusion, which forecloses
litigation of a litigated and decided matter (often referred to as direct or collateral estoppel), and
claim preclusion, which disallows litigation of a matter that has never been litigated but which
should have been presented in an earlier suit.” Bierley v. Dombrowski, 309 F. App'x 594, 596–
solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also
based on the avoidance of unnecessary judicial waste.” Arizona, 530 U.S. at 412 (citation and
internal quotation marks omitted). Here, because Plaintiffs’ claim against Defendant Florio
mirrors the federal claims asserted against the Moving Defendants, and concerns the same
conduct at issue in Pasqua I, the Court will sua sponte consider whether Plaintiffs are barred,
under both claim preclusion and issue preclusion, from asserting Count Fourteen against
The Court notes that while in Pasqua I, the federal due process claims were asserted solely on
behalf of Ms. Browne, in Pasqua II, Plaintiffs assert identical federal due process claims on
behalf of both Ms. Browne and Ms. Pasqua. Nonetheless, Moving Defendants argue that this
Court’s prior judgment has preclusive effect, for res judicata purposes, as to both Plaintiffs’ due
process claims in Pasqua II. As discussed, infra, the Court agrees.
97 (3d Cir. 2009). The distinction between claim and issue preclusion has been aptly
summarized as follows:
The rules of res judicata, as the term is sometimes sweepingly used, actually comprise
two doctrines concerning the preclusive effect of a prior adjudication. The first such
doctrine is “claim preclusion,” or true res judicata. It treats a judgment, once rendered, as
the full measure of relief to be accorded between the same parties on the same “claim” or
“cause of action.” . . . When the plaintiff obtains a judgment in his favor, his claim
“merges” in the judgment; he may seek no further relief on that claim in a separate
action. Conversely, when a judgment is rendered for a defendant, the plaintiff's claim is
extinguished; the judgment then acts as a “bar.” . . . Under these rules of claim
preclusion, the effect of a judgment extends to the litigation of all issues relevant to the
same claim between the same parties, whether or not raised at trial. . . . The aim of claim
preclusion is thus to avoid multiple suits on identical entitlements or obligations between
the same parties, accompanied, as they would be, by the redetermination of identical
issues of duty and breach.
The second doctrine, collateral estoppel or “issue preclusion,” recognizes that suits
addressed to particular claims may present issues relevant to suits on other claims. In
order to effectuate the public policy in favor of minimizing redundant litigation, issue
preclusion bars the relitigation of issues actually adjudicated, and essential to the
judgment, in a prior litigation between the same parties. . . . It is insufficient for the
invocation of issue preclusion that some question of fact or law in a later suit was
relevant to a prior adjudication between the parties; the contested issue must have been
litigated and necessary to the judgment earlier rendered.
Wright, et al., 18A Fed. Prac. & Proc. Juris. § 4402 (2d ed.). In short, “[c]laim preclusion
prevents the relitigation of identical cases, whereas issue preclusion prevents the relitigation of
discrete issues.” Sec'y United States Dep't of Labor v. Kwasny, 853 F.3d 87, 94 (3d Cir. 2017).
Claim preclusion is a broader doctrine than issue preclusion, in that it bars not only
claims that were actually brought in a previous lawsuit, but also claims that could have been
brought in the prior suit. Duhaney v. Attorney Gen. of U.S., 621 F.3d 340, 347 (3d Cir. 2010).
Claim preclusion “protect[s] litigants from the burden of relitigating an identical issue with the
same party or his privy and . . . promot[es] judicial economy by preventing needless litigation.”
Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir. 2007) (quoting Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 327 (1979)); see Gage v. Warren Tp. Committee & Planning Bd. Members,
463 Fed. Appx. 68, 72 (3d Cir. 2012) (“The doctrine of claim preclusion is central to the purpose
for which civil courts have been established, the conclusive resolution of disputes, and seeks to
avoid the expense and vexation of multiple lawsuits, while conserving judicial resources and
fostering reliance on judicial action by minimizing the possibility of inconsistent decisions.”). A
party seeking to invoke claim preclusion must establish three elements: (1) a final judgment on
the merits in a previous lawsuit involving; (2) the same parties or their privies; and (3) a
subsequent action based on the same cause of action. Mullarkey v. Tamboer, 536 F.3d 215, 225
(3d Cir. 2008) (citations omitted).
By contrast, issue preclusion “prevents parties from relitigating an issue that has already
been actually litigated.” Peloro v. United States, 488 F.3d 163, 174 (3d Cir. 2007). Issue
preclusion “ensures that ‘once an issue is actually and necessarily determined by a court of
competent jurisdiction, that determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation.’” Burlington N. R. Co. v. Hyundai
Merch. Marine Co., 63 F.3d 1227, 1231 (3d Cir. 1995) (quoting Montana v. United States, 440
U.S. 147, 153 (1979)). Issue preclusion applies if four requirements are met: “(1) 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.” Id. (quoting Burlington N. R. Co, 63 F.3d
at 1231-32). Because Moving Defendants argue that Plaintiffs are barred from asserting the
Federal Claims under both the doctrines of claim preclusion and issue preclusion, the Court will
analyze whether the dismissal of Plaintiffs’ Federal Claims is warranted under either doctrine.
As noted above, claim preclusion attaches where there was: “‘(1) a final judgment on the
merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit
based on the same cause of action.’” Strunk v. Wells Fargo Bank, N.A., 614 F. App'x 586, 588
(3d Cir. 2015) (quoting Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991)). The
Third Circuit has advised that this test should not be applied “mechanically”; instead, courts
should “‘focus on the central purpose of the doctrine, to require a plaintiff to present all claims
arising out [of] the same occurrence in a single suit.’” Sheridan v. NGK Metals Corp., 609 F.3d
239, 260 (3d Cir. 2010) (quoting Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir.
1999)); see Strunk, 614 F. App'x at 588 (“The principle of claim preclusion bars not only claims
that were brought, but also those that could have been brought, in a previous action.”).
Requiring plaintiffs to present all claims arising out of the same occurrence in a single suit is
designed to “avoid piecemeal litigation and conserve judicial resources.” Sheridan, 609 F.3d at
Here, the first element of claim preclusion is satisfied, because this Court’s Omnibus
Opinion, granting summary judgment on Plaintiffs’ federal due process and political discharge
claims, constituted a final judgment on the merits with respect to those claims. Indeed, “the law
is clear that summary judgment is a final judgment on the merits sufficient to raise the defense of
res judicata in a subsequent action between the parties.” Hubicki v. ACF Indus., Inc., 484 F.2d
519, 524 (3d Cir. 1973); see, e.g., McLaughlin v. Bd. of Trustees of Nat'l Elevator Indus. Health
Benefit Plan, 686 F. App'x 118, 122 (3d Cir. 2017) (“District Court's grant of summary judgment
in favor of the Plan in McLaughlin I constitutes a final judgment on the merits for the purposes
of res judicata.”). Conversely, “a dismissal for jurisdictional purposes does not serve as a final
judgment on the merits.” Simoni v. Luciani, 872 F. Supp. 2d 382, 390 (D.N.J. 2012); see
Costello v. United States, 365 U.S. 265, 286 (1961) (“If the first suit was dismissed for . . . want
of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the
judgment rendered will prove no bar to another suit.”).
In its Omnibus Opinion, the Court granted summary judgment as to the federal claims
asserted in Counts Five and Six of the Pasqua I Amended Complaint, finding that, even viewing
the evidence in the light most favorable to Plaintiffs, Ms. Browne failed to establish claims for
deprivation of procedural due process, in violation of the Fourteenth Amendment. The Court
also granted summary judgment as to Plaintiffs’ political discharge claims under the First
Amendment, finding that Plaintiffs failed to demonstrate that they were terminated for engaging
in constitutionally protected conduct. The federal claims asserted in Pasqua I were thus
disposed of in a final judgment on the merits for the purposes of res judicata.12
Second, the Court finds that Defendants have satisfied the “same parties or their privies”
requirement of the claim preclusion defense.13 At the outset, it is important to note that Plaintiffs
The finality of the Court’s summary judgment order is not altered by the fact that Plaintiffs
have appealed the Court’s decision. See United States v. 5 Unlabeled Boxes, 572 F.3d 169, 175
(3d Cir. 2009) (“[T]he pendency of an appeal does not affect the potential for res judicata
flowing from an otherwise-valid judgment.”); Cohen v. Superior Oil Corp., 90 F.2d 810, 811 (3d
Cir. 1937) (finding that the pendency of an appeal does not affect a judgment’s finality for the
purposes of res judicata) (cited approvingly in McLaughlin v. Bd. of Trustees of Nat'l Elevator
Indus. Health Benefit Plan, 686 F. App'x 118, 122 (3d Cir. 2017)); see also
Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941) (finding that an
appeal of a judgment “does not—until and unless reversed—detract from [the judgment’s]
decisiveness and finality.”); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486
F.3d 279, 284 (7th Cir. 2007) (“[T]he fact that an appeal was lodged does not defeat the finality
of the judgment.”). Additionally, the Court notes that because it declined to exercise
supplemental jurisdiction over Court One of the Pasqua I Amended Complaint, Ms. Pasqua’s
state law claim under N.J.S.A. 40A:9-25 for a de novo review of the Board’s decision to
terminate her employment, that jurisdictional ruling did not constitute a final judgment on the
merits for res judicata purposes. Accordingly, the Court will not include that state-based claim
in its claim preclusion analysis.
The Court notes that it is unclear from the Pasqua II Complaint which parties Plaintiffs seek to
assert the Federal Claims against. However, it is apparent that Plaintiffs have not asserted any of
do not dispute that this element of claim preclusion has been satisfied, and, because Plaintiffs
named the County and the Board as defendants in both actions, these parties clearly meet the
identity of the parties test. Additionally, while Plaintiffs did not name the Individual Defendants
in Pasqua I, the Third Circuit has explained that claim preclusion “may be invoked against a
plaintiff who has previously asserted essentially the same claim against different defendants
where there is a close or significant relationship between successive defendants.” Lubrizol, 929
F.2d at 966 (quoting Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972)); see, e.g., Hickox
v. Cty. of Blair, 591 F. App'x 107, 110 (3d Cir. 2014) (affirming the district court’s dismissal of
the plaintiff’s second complaint on the ground of claim preclusion, despite the fact that the
second complaint included an additional defendant not named in the first). And, importantly for
the purposes of the present case, “a lesser degree of privity is required for a new defendant to
benefit from claim preclusion than for a plaintiff to bind a new defendant in a later action.”
Lubrizol, 929 F.2d at 966.
For example, in Gambocz, after the plaintiff’s first action against several alleged
conspirators was dismissed without prejudice, the plaintiff brought a second action, based on the
same underlying facts, naming additional defendants who allegedly participated in the same
conspiracy. 468 F.2d at 839. Despite the addition of several new defendants in the second
action, the Third Circuit affirmed the lower court’s dismissal of the plaintiff’s second complaint
on clam preclusion grounds. Id. at 842. The Court reasoned:
We previously determined that the essential allegations of the second complaint parallel
those of the first. Moreover, what was averred in the original action was a conspiracy
participated in by named individuals, and the sole material change in the later suit was the
addition of certain defendants, some of whom had been named in the original complaint
the Federal Claims against the Accountant Defendants, who were already dismissed from this
action. Accordingly, the Court will analyze the “same parties or privies” element of claim
preclusion with regard to the County, the Board, and the Individual Defendants.
as participating in the conspiracy but had not been named as parties defendant at that
time. We conclude that the relationship of the additional parties to the second complaint
was so close to parties to the first that the second complaint was merely a repetition of the
first cause of action and, therefore, it is barred by application of [claim preclusion].
Similarly, here, the Court finds that although the Individual Defendants were not named
as defendants in Pasqua I, they may invoke claim preclusion against Plaintiffs’ Federal Claims,
because there is a sufficiently “close and significant relationship” between the Individual
Defendants and the County Defendants, with respect to the Federal Claims, to satisfy the privity
requirement. In that regard, the conduct forming the basis of Plaintiffs’ Federal Claims against
the Individual Defendants all relates to Plaintiffs’ termination, and pertain solely to acts taken by
the Individual Defendants in the course of their official duties with the County. Additionally, the
allegedly unconstitutional conduct referenced in Plaintiffs’ Federal Claims are the same acts
complained of in Pasqua I. The only material difference between the federal claims in Pasqua I
and this case is the addition of the Individual Defendants as named defendants here. Under these
circumstances, where the claims presented in the two actions are identical, the County
Defendants were named in both actions, and the Individual Defendants have a close and
significant relationship to the County Defendants, the Court finds that the “same parties or their
privies” requirement of the claim preclusion defense has been satisfied. See, e.g., Sheridan, 609
F.3d at 261 (finding that the defendant-company “met the ‘same parties’ requirement of the
claim preclusion defense because [the plaintiff] and the [defendant-company] were parties in
both actions. The fact that there are additional parties in [the second action] does not affect our
conclusion.”); Heine v. Dir. of Codes & Standards, No. 15-8210, 2017 WL 3981135, at *8
(D.N.J. Sept. 11, 2017) (applying claim preclusion, where the parties in the first and second
actions were identical, with the exception of several additional parties in the second case); Heine
v. Comm'r of Dep't of Cmty. Affairs of New Jersey, No. 21-15347, 2017 WL 4516568, at *9 n. 13
(D.N.J. Oct. 10, 2017) (applying claim preclusion, despite the fact that four of the plaintiffs in
the second action were not parties to the first, where the remainder of the plaintiffs and
defendants involved in the second action were parties to the first action).14
The Court notes that Plaintiffs have sued the Individual Defendants in both their official and
individual capacities. To the extent that the Individual Defendants are sued in their official
capacities, they are in privity with the County Defendants as a matter of law. Gregory v. Chehi,
843 F.2d 111, 120 (3d Cir. 1988) (“[G]overnmental officials sued in their official capacities for
actions taken in the course of their duties are considered in privity with the governmental
body.”); Opdycke v. Stout, 233 F. App'x 125, 129 n. 6 (3d Cir. 2007) (“To the extent that the
individual defendants . . . are sued in their official capacities, they are, as a matter of law, in
privity with Franklin Township.”). To the extent that the Federal Claims are asserted against
Plaintiffs in their individual capacities, however, the privity question is less clear. To that end,
the Third Circuit has observed that some courts “have declined to assume that privity exists
between a municipality and its officers or other employees, . . . especially where . . . the added
defendants are sued in both their personal and official capacities.” Huertas v. City of
Philadelphia, 188 F. App'x 136, 137 (3d Cir. 2006). Nonetheless, in Huertas, the Third Circuit
declined to resolve the question of whether, for the purposes of res judicata, privity exists
between a county and its officers or employees, where the officers have been sued in their
individual capacities, and that issue remains an open question in this Circuit. Id. And, where, as
here, a plaintiff fails to allege any actions taken by the defendants in their individual capacities
that are separate and distinct from actions taken in their official capacities, several courts have
found that the same parties or privies requirement of claim preclusion is satisfied. See Licari v.
City of Chicago, 298 F.3d 664, 667 (7th Cir. 2002) (finding that the plaintiff’s “addition of Board
members as defendants in their individual and official capacities [did] not prevent satisfaction of
[the same parties requirement],” where the plaintiff did “not allege any action taken against him
by the defendants (in either their official or individual capacities) that is separate and distinct
from any action taken by the Board.”); see also Williams v. City of Allentown, 25 F. Supp. 2d
599, 604 (E.D. Pa. 1998) (finding that the same parties or privies element of claim preclusion
was satisfied, despite the plaintiff’s addition of individual capacity claims against new
government officials in the second action, because the officials were being sued for the same
actions implicated in the first suit, and they had a “sufficiently close relationship with prior
parties that they should be considered in privity with those former parties.”); Fleming v. City of
Detroit, No. 04-74081, 2006 WL 2559862, at *6 (E.D. Mich. Sept. 1, 2006) (“Where there is a
sufficient identity of interest between a government official and the governmental entity or
where the inclusion of the personal capacity claim amounts to nothing more than a pleading
artifice, privity may be found to exist regardless of the fact that the official has been sued in his
personal capacity.”). In the instant case, the Court finds that the “same parties or their privies”
requirement of claim preclusion has been satisfied, despite Plaintiffs’ addition of individual
capacity claims against the Individual Defendants in Pasqua II. Importantly, Plaintiffs have not
explicitly alleged, in the Federal Claims, any actions taken by the Individual Defendants in their
Third, the Federal Claims in this action are based on the same cause of action asserted in
Pasqua I. Courts within the Third Circuit “take a ‘broad view’ of what constitutes the same
cause of action.” Sheridan, 609 F.3d at 261. To that end, the Third Circuit has disavowed
attempts to create a “simple test . . . for . . . determining what constitutes a cause of action for res
judicata purposes.” United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984)
(quoting Donegal Steel Foundry Co. v. Accurate Prod. Co., 516 F.2d 583, 588 n. 10 (3d Cir.
1975)). Rather, courts “look toward the ‘essential similarity of the underlying events giving rise
to the various legal claims.’” Lubrizol, 929 F.2d at 963 (quoting Davis v. U.S. Steel Supply, Div.
of U.S. Steel Corp., 688 F.2d 166, 171 (3d Cir. 1982)); see Blunt v. Lower Merion Sch. Dist., 767
F.3d 247, 277 (3d Cir. 2014) (“‘Res judicata generally is thought to turn on the essential
similarity of the underlying events giving rise to the various legal claims.’”) (quoting Sheridan,
individual capacities, as opposed to their official capacities, that are separate and distinct from
the actions of the County Defendants, and the Court cannot discern, in conducting its own
examination of the Complaint, any allegations against the Individual Defendants that differ from
the allegations Plaintiffs asserted against the County Defendants in Pasqua I. Rather, it appears
that the Individual Defendants are being sued for the same conduct complained of in Pasqua I.
Indeed, Plaintiffs do not even draw the individual capacity versus official capacity distinction in
their Opposition brief, or otherwise argue that the same parties requirement for claim preclusion
has not been satisfied. Accordingly, the Court finds that the “same parties or their privies”
element has been satisfied. Indeed, it would undermine the animating purposes of the claim
preclusion doctrine to allow Plaintiffs to circumvent claim preclusion and relitigate claims
already decided against the County Defendants by merely adding several additional defendants
in the subsequent suit. See Wood v. Coleman, No. 83-27, 1989 WL 29250, at *15 (E.D. Pa.
Mar. 29, 1989) (“[M]erely adding some facts, naming additional defendants, or proposing a
different theory of recovery will not convert one cause of action into a second cause of action
and thereby evade the preclusive effect that the first cause of action has if both actions involve
the same liability-creating conduct on the part of the defendants and the same alleged invasion of
the plaintiffs' rights.”). In any event, as discussed, infra, even if the identity of the parties
element is not met in this case, precluding the application of claim preclusion, nonetheless,
because the Court finds that Plaintiffs are also barred from asserting the Federal Claims under
issue preclusion, summary judgment as to those claims is warranted.
609 F.3d at 261). The “essential similarity” approach “reflects the ‘present trend . . . of requiring
that a plaintiff present in one suit all the claims for relief that he may have arising out of the same
transaction or occurrence.’”15 Duhaney, 621 F.3d at 348 (quoting Lubrizol, 929 F.2d at 963.
In conducting the essential similarity inquiry, courts look to the following Athlone
factors: “‘(1) whether the acts complained of and the demand for relief are the same . . . ; (2)
whether the theory of recovery is the same; (3) whether the witnesses and documents necessary
at trial are the same . . . ; and (4) whether the material facts alleged are the same.’” Sheridan,
609 F.3d at 261 (quoting Athlone, 746 F.2d at 984). “It is not dispositive that a plaintiff asserts a
different theory of recovery or seeks different relief in the two actions.” Blunt, 767 F.3d at 277
(internal quotation marks and citation omitted); see Elkadrawy v. Vanguard Grp., Inc., 584 F.3d
169, 173 (3d Cir. 2009) (advising that the same cause of action analysis “does not depend on the
specific legal theory invoked, but rather ‘the essential similarity of the underlying events giving
rise to the various legal claims.’”) (citation omitted); Lubrizol, 929 F.2d at 963 (“A mere
difference in the theory of recovery is not dispositive.”). And, as referenced above, claim
preclusion “bars not only claims that were brought in the previous action, but also claims that
could have been brought.” Post, 501 F.3d at 169 (emphasis added). Thus, “‘[t]he fact that
several new and discrete discriminatory events are alleged does not compel a different result. A
claim extinguished by res judicata includes all rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction, or series of connected transactions,
out of which the action arose.’” Blunt, 767 F.3d at 277 (citation omitted).
For this reason, the “essential similarity” approach to defining a cause of action is alternatively
referred to as the “transactional” approach. See Duhaney, 621 F.3d at 350.
Here, focusing on the Athlone factors in light of the “essential similarity of the underlying
events giving rise” to Plaintiffs’ legal claims, the Court finds that the Federal Claims in this
action are essentially duplicative of the federal claims asserted in Pasqua I. Principally, the
material facts and events underlying the federal claims in both actions are virtually identical,
arising entirely out of the investigation and termination of Plaintiffs from their positions with the
County. And, even accepting that Pasqua II alleges several new, discrete facts, these facts arise
from the same transaction complained of in Pasqua I, and thus, could have been asserted in the
initial action. See Elkadrawy, 584 F.3d at 173–74 (“Even crediting [the plaintiff’s] attempt to
distinguish his second set of facts as ‘new,’ it is beyond dispute that these allegations ‘could have
been brought’ as part of his first complaint.”). To that end, the allegations levied against the
Individual Defendants all arise out of the same employment relationship and all concern the
termination of Plaintiffs’ employment with the County. Thus, the fact that several new and
discrete factual allegations are raised here does not alter this Court’s finding that the federal
claims alleged in both actions are essentially the same, particularly since any of these facts could
have been discovered with due diligence and raised in the first action. See Haefner v. N.
Cornwall Twp., 40 F. App'x 656, 658 (3d Cir. 2002) (“Claim preclusion . . . applies even where
new claims are based on newly discovered evidence, unless the evidence was either fraudulently
concealed or it could not have been discovered with due diligence.”).
Moreover, Plaintiffs’ federal theories of recovery are essentially the same in both actions.
In that regard, as in Pasqua I, the Pasqua II Complaint asserts constitutional claims under §
1983, alleging deprivations of Plaintiffs’ procedural due process rights in violation of the
Fourteenth Amendment. Indeed, in both cases, Plaintiffs allege due process claims for harm to
their reputations caused as a result of their termination, and for the procedure and decision
related to their termination. Additionally, Plaintiffs’ First Amendment claims in this case are
based on the same conduct that formed the basis for Plaintiffs’ First Amendment claims in
Pasqua I; i.e., that Plaintiffs were terminated for expressing their opinions that the County
needed a tax increase. And, because Plaintiffs assert virtually identical federal theories in both
actions, based on the same underlying factual conduct, the witnesses and documents necessary to
establish the Federal Claims at trial are the same as needed to establish Plaintiffs’ federal claims
in Pasqua I. Accordingly, the Federal Claims raised here are essentially the same as those raised
in Pasqua I, satisfying the third factor for the application of claim preclusion.
Plaintiffs’ attempt to circumvent the fact that the two actions assert essentially identical
federal claims is unavailing. To that end, despite Plaintiffs’ arguments to the contrary, even
assuming that Plaintiffs’ Federal Claims differ slightly than their federal theories of recovery in
Pasqua I, those differences do not render Pasqua II a discrete cause of action. As the Court has
already noted, claim preclusion bars not only claims that were actually asserted in a previous
action, but also “claims that could have been brought.” Post, 501 F.3d at 169 (emphasis added).
Thus, the relevant question is not whether Plaintiffs did, in fact, assert the Federal Claims in
Pasqua I, but whether they could have asserted these claims in Pasqua I.16 As the Court has
already discussed, the federal claims underlying both actions arise from the same employment
relationship and concern the termination of Plaintiffs’ employment from the County. As a result,
Plaintiffs argue that Defendants cannot invoke claim preclusion in this case, because “there
was a jurisdictional bar to asserting claims in the first action.” Pls.’ Opp. to Defs.’ Mot. for
Summ. J., 12. Specifically, Plaintiffs argue that since “Pasqua I was a statutory review action of
a disciplinary action,” neither the state nor the federal court would have had jurisdiction to hear
the damages claims asserted in this case. Id. at 13. Nonetheless, Plaintiffs have not cited to any
support for the proposition that they would have been barred from asserting claims,
constitutional or otherwise, that sought money damages in Pasqua I. To the contrary, Plaintiffs
did in fact assert federal claims for deprivation of their due process rights and violation of the
First Amendment in Pasqua I, and, in those federal claims, Plaintiffs sought money damages.
it is not dispositive that the federal due process claims in Pasqua I were asserted solely on behalf
of Ms. Browne, and that the federal due process claims in Pasqua II are asserted on behalf of
both Ms. Browne and Ms. Pasqua. To the contrary, it is clear that Ms. Pasqua could have
asserted procedural due process claims in Pasqua I, because there was no jurisdictional bar
against asserting such claims, and Ms. Pasqua’s federal due process claims contain the same
underlying factual conduct and identical allegations as those asserted by Ms. Browne. Indeed,
Plaintiffs do not attempt to distinguish Ms. Browne’s federal due process claims from Ms.
Pasqua’s federal due process claims in the Pasqua II Complaint. Accordingly, because Ms.
Pasqua’s federal due process claims could have been asserted in Pasqua I, the fact that Plaintiffs
chose to assert those claims solely on behalf of Ms. Browne does not render Ms. Pasqua’s due
process claims in this case a different cause of action for claim preclusion purposes.
Plaintiffs also attempt to distinguish the federal claims asserted in Pasqua I from the
Federal Claims here on the ground that Pasqua I was a prerogative writ request for de novo
review, while Pasqua II is a “broad-based damages claim involving facts and circumstances
leading up to, and following the hearing.” Defs.’ Opp. to Pls.’ Mot. for Summ. J., 11. To that
end, Plaintiffs argue that this Court’s Omnibus Opinion only addressed Ms. Browne’s claim to a
right to de novo review and for political retaliation, and did not address Ms. Browne’s other civil
rights claims for damages, including the issue of whether the procedure and decision of the
Hearing Officer were constitutionally deficient. Contrary to Plaintiffs contentions, however, the
Pasqua I Amended Complaint did assert statutory and constitutional claims for “other relief and
damages” related to the hearing and termination process. And, despite noting these damage
claims in the Omnibus Opinion, the Court determined that Ms. Browne failed to set forth a claim
for violation of procedural due process on the merits.
In sum, the Federal Claims asserted in this case are indisputably duplicative to the federal
claims that this Court dismissed in Pasqua I. Barring Plaintiffs’ Federal Claims is thus
“consistent with the purpose of claim preclusion, namely finality and avoidance of piecemeal
litigation.” Sheridan, 609 F.3d at 262. Accordingly, because the assertions underlying the
federal claims in both actions are the same, and because Plaintiffs either did bring, or could have
brought, each of the Federal Claims asserted in this case in Pasqua I, the Court finds that
summary judgment of the Federal Claims is warranted under the doctrine of claim preclusion.
Even if Defendants were not entitled to summary judgment on all of Plaintiffs’ Federal
Claims under the doctrine of claim preclusion, they would be so entitled under the alternative
theory of issue preclusion. The doctrine of issue preclusion, or collateral estoppel,17 prevents a
party from relitigating issues that were adjudicated in a prior lawsuit. Peloro, 488 F.3d at 174; In
re Docteroff, 133 F.3d 210, 214 (3d Cir. 1997). Issue preclusion exists to promote judicial
consistency, encourage reliance on court decisions, and protect defendants from being forced to
relitigate the same issues in multiple lawsuits. Allen v. McCurry, 449 U.S. 90, 94 (1980). “The
prerequisites for the application of issue preclusion are satisfied when: ‘(1) 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.’” Peloro, 488 F.3d at 174–75 (quoting Burlington N. R. Co., 63 F.3d at
While courts often use the term “collateral estoppel,” the Supreme Court has observed that
“’issue preclusion’ is the more descriptive term.” Bravo-Fernandez v. United States, 137 S. Ct.
352, 356 (2016).
“In its classic form, collateral estoppel also required ‘mutuality’—i.e., that the parties on
both sides of the current proceeding be bound by the judgment in the prior proceeding.” Peloro,
488 F.3d at 175. However, under the modern doctrine of non-mutual issue preclusion,
“[c]omplete identity of parties in the two suits is not required for the application of issue
preclusion.” Burlington N. R. Co., 63 F.3d at 1232; see Peloro, 488 F.3d at 175 (“Under the
modern doctrine of non-mutual issue preclusion, however, a litigant may also be estopped from
advancing a position that he or she has presented and lost in a prior proceeding against a
different adversary.”). In this case, while the County Defendants were parties to the Pasqua I
action, the Individual Defendants, who were not parties in Pasqua I, also seek to use issue
preclusion defensively against Plaintiffs; i.e., the Individual Defendants seek to invoke defensive
non-mutual issue preclusion. For defensive non-mutual issue preclusion to apply, “the party to
be precluded must have had a ‘full and fair’ opportunity to litigate the issue in the first action.”
Peloro, 488 F.3d at 175.
Here, the Court finds that Defendants have established each of the prerequisites for the
application of issue preclusion with respect to the Federal Claims asserted in Counts Five,
Twelve, and Thirteen, and Fourteen of the Pasqua II Complaint. The Third Circuit has
previously held that “[t]o defeat a finding of identity of the issues for preclusion purposes, the
differences in the applicable legal standard must be ‘substantial.’” Raytech Corp. v. White, 54
F.3d 187, 191 (3d Cir. 1995); see also Montana v. United States, 440 U.S. 147, 155 (1979) (the
identity of issues requirement is fulfilled where the issues in the current case are “in substance
the same” as those previously resolved). In the instant case, Plaintiffs have failed to defeat a
finding of identify of the issues, because the issues presented by Plaintiffs’ Federal Claims are in
substance the same as those resolved in this Court’s decision pertaining to the federal claims
asserted in Pasqua I.
In Pasqua I, this Court dismissed Plaintiffs’ § 1983 claims for political retaliation in
violation of the First Amendment and Ms. Browne’s claim for deprivation of procedural due
process in violation of the Fourteenth Amendment. Specifically, the Court found that Plaintiffs
could not establish a claim for political discharge in violation of the First Amendment, because,
Plaintiffs’ statements regarding a tax increase were made within the scope of their employment,
and thus, did not constitute politically protected conduct under the First Amendment. Pasqua,
2016 WL 4253958 at *10-12. Additionally, the Court found that even if the statements were
constitutionally protected, Plaintiffs could not establish a claim for political discharge, because
they failed to produce evidence sufficient for a reasonable jury to find that Plaintiffs’ tax views
were a substantial and motivating factor in the Board’s decision to discharge them. Id. The
Court also found that Ms. Browne had not established a claim for deprivation of procedural due
process, because she presented no evidence that the County Defendants publicly disseminated
information that would harm her reputation. See id. at *15. In so finding, the Court noted that,
as in the present case, Ms. Browne’s due process claims in the Pasqua I Amended Complaint
alleged that the “procedure and process of the hearing and the Decision were deficient and
inadequate in numerous ways that violated [Ms. Browne’s] due process rights.” Pasqua I Am.
Compl. ¶ 23.
The Federal Claims in Pasqua II Complaint raise the same issues that were adjudicated in
Pasqua I. To that end, Counts Five, Twelve, and Thirteen of the Pasqua II Complaint assert
claims for political retaliation in violation of the First Amendment, alleging that Defendants
retaliated against Plaintiffs after Plaintiffs expressed their opinion that the County needed a tax
increase. Counts Twelve, Thirteen, and Fourteen assert § 1983 procedural due process claims
against the Board and the Individual Defendants, arising out of Plaintiffs’ termination, alleging
that those defendants violated Plaintiffs’ due process rights by, inter alia, failing to adequately
consider whether Plaintiffs’ termination was justified and failing to provide Plaintiffs with
separate hearings to clear their names. Indeed, these are precisely the issues that were decided in
Pasqua I, stemming from the same underlying factual conduct, and therefore, the first element
for the application of issue preclusion has been satisfied.
Moving Defendants have also met their burden of establishing the other elements of issue
preclusion. In that regard, the issues raised by the Federal Claims were “actually litigated” in
Pasqua I, because Plaintiffs had a full and fair opportunity to present their claims before this
Court.18 See Peloro, 488 F.3d at 176. Following extensive briefing by both parties, this Court
entered a “final and valid” judgment on those claims by granting summary judgment in
Defendants’ favor. The Court’s order was “final” for the purposes of issue preclusion, because it
was “sufficiently firm to be accorded conclusive.” See In re Docteroff, 133 F.3d at 215-16.
Indeed, this Court issued a lengthy Omnibus Opinion resolving the federal claims in Pasqua I,
While the Court acknowledges that Ms. Pasqua did not actually assert a claim for violation of
her procedural due process rights in Pasqua I, that fact does not alter the Court’s finding that
Plaintiffs had a full and fair opportunity to litigate the procedural due process claim in Pasqua I.
To that end, in Pasqua II, Plaintiffs do not distinguish between the due process claims asserted
by Ms. Browne and Ms. Pasqua; rather, the due process claims asserted by both Plaintiffs in
Pasqua II are identical to the due process claims asserted on behalf of Ms. Browne in Pasqua I.
Under these circumstances, it would strain credulity to find that the issue of whether Plaintiffs
were deprived of their due process rights was not actually litigated in Pasqua I. Additionally,
Ms. Pasqua was represented by the same attorney as Ms. Browne in Pasqua I, the due process
claims asserted in both actions require the same proofs, and, as the Court has already found, Ms.
Pasqua could have brought due process claims in Pasqua I, had she so elected. Accordingly, in
light of the “broad discretion” afforded trial courts in determining when to apply issue
preclusion, the Court finds that issue preclusion is appropriate in this case. Parklane Hosiery,
439 U.S. at 331.
and Plaintiffs appealed that decision.19 See In re Brown, 951 F.2d 564, 569 (3d Cir. 1991)
(observing that, in determining whether a judgment is final for issue preclusion purposes, the
factors to consider include whether the parties were fully heard, whether a reasoned opinion was
filed, and whether that decision could have been, or actually was, appealed.). Finally, it is clear
that the issues of whether Plaintiffs were discharged for political reasons, and whether Plaintiffs’
termination constituted a due process violation, were essential to this Court’s prior judgment.
In sum, this Court finds that Plaintiffs are not “entitled to another bite of the apple” on the
issues of whether their termination constituted a political discharge in violation of the First
Amendment, or whether the conduct and procedure related to Plaintiffs’ termination hearings
constituted a deprivation of Plaintiffs’ due process rights. Because Plaintiffs had a full and fair
opportunity to litigate those claims in Pasqua I, and because the Court issued a final, valid
judgment on those issues, the principle of defensive non-mutual issue preclusion bars Plaintiffs
from relitigating those issues in Pasqua II. Accordingly, the Court will grant summary judgment
as to Counts Five, Twelve, Thirteen, and Fourteen of the Pasqua II Complaint.
Having found that summary judgment is warranted as to Plaintiffs’ Federal Claims,
asserted in Counts Five, Twelve, Thirteen, and Fourteen of the Pasqua II Complaint, the Court
must address Plaintiffs’ remaining state law claims. Under 28 U.S.C. § 1367(c), a district court
may decline to exercise supplemental jurisdiction over a claim if the court “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Federal district courts
have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of
Moreover, as discussed in footnote twelve, supra, the fact that Plaintiffs have appealed this
Court’s summary judgment Order does not alter that Order’s finality for the purposes of res
judicata. See 5 Unlabeled Boxes, 572 F.3d at 175.
the United States.” 28 U.S.C. § 1331. Because Plaintiffs’ remaining claims arise solely under
state law, and therefore are not claims over which I have original jurisdiction, I decline to
exercise supplemental jurisdiction over those claims. As a result, Moving Defendants’ Motion
for Summary Judgment as to Counts One through Four, Six through Eleven, and Eighteen
through Twenty-One is denied without prejudice. Pasqua II (Civil Action No. 15-3501) is
remanded to the Superior Court of New Jersey, Law Division, Hunterdon County for further
For the foregoing reasons, Moving Defendants’ Motion for Summary Judgment is
granted as to Counts Five, Twelve, Thirteen, and Fourteen of the Pasqua II Complaint. The
Motion is denied without prejudice as to the remainder of Plaintiffs’ state law claims. I decline
to exercise supplemental jurisdiction over the state law claims, and therefore, this action is
remanded to the Superior Court of New Jersey, Law Division, Hunterdon County.
Dated: November 27, 2017
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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