ROBERT RODANO VS. LAURA KOUSMINE (L-0279-14, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3925-15T1
TYRONE MCEADY, ROBERT
BABNEW, and STEVEN L. FRITZ,
Plaintiffs,
and
KAREN FELICIANO RUIZ,
KENYATTA KELLY, ORLANDO
SEGARRA, RAUL BELTRAN, JR.,
VINCENT J. SAUNDERS, MARK
S. HOOPES, CHRISTOPHER M.
KELLY, DARRYL LOFLAND, NEIL
W. LONG and HENRY L. MCLEOD,
JR.,
Plaintiffs-Appellants,
v.
CAMDEN COUNTY POLICE
DEPARTMENT,
Defendant-Respondent.
________________________________________________
Argued March 21, 2017 – Decided April 21, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. L-4444-15.
Christopher A. Macey argued the cause for
appellants (Bell & Bell, L.L.P., attorneys;
James A. Bell, IV, on the brief).
Benjamin S. Teris argued the cause for
respondent (Brown & Connery, L.L.P.,
attorneys; Christine P. O'Hearn, of counsel
and on the brief; Mr. Teris, on the brief).
PER CURIAM
This is yet another appeal with its genesis in "the City of
Camden's decision to disband its municipal police department and
to contract with Camden County for the delivery of police services
. . . by a countywide police department." Redd v. Bowman, 223
N.J. 87, 94 (2015).1 The unions representing Camden's police
officers challenged the Civil Service Commission's approval of the
reorganization plan, and we affirmed the Commission's decision in
an unpublished decision. In re Camden County Police Dep't Pilot
Program, No. A-1004-12, A-1018-12 (App. Div. Aug. 13, 2014).2
1 The factual background is more fully set forth in the Court's
opinion, id. at 97-102.
2 Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law . . . ." See Badiali v. N.J. Mfrs. Ins. Grp.,
429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544
(2015).
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In 2013, the union representing Camden's rank and file police
officers (the Union) also filed an action in the Law Division in
lieu of prerogative writs (the Union's lawsuit) challenging the
plan. Although originally not named in the complaint, the Union
was granted leave to amend its complaint to add plaintiffs Tyrone
McEady, Robert Babnew, Steven L. Fritz, Karen Feliciano Ruiz,
Kenyatta Kelly, Orlando Segarra, Raul Beltran, Jr., Vincent J.
Saunders, Mark S. Hoopes, Christopher M. Kelly, Darryl Lofland,
Neil W. Long, and Henry L. McLeod, Jr. (collectively, plaintiffs),
as individually-named plaintiffs. All plaintiffs were former city
police officers whose employment terminated as part of the
reorganization plan, and who, on the very day the motion to amend
was filed, November 25, 2013, were not offered positions with the
county police force. In support of the motion to amend, plaintiffs
argued "nothing would presumably prevent the filing of an entirely
new complaint, at least for the purposes of pursuing a claim of
damages," but that would "require a consolidation of the matters
or would otherwise negatively impact judicial economy."
Additionally, in 2013, the Union filed an unfair labor
practice charge with the Public Employee Relations Commission
(PERC). Plaintiffs McEady, Babnew, Segarra, Beltran, Saunders and
Lofland were all added to the Union's amended PERC complaint in
January 2014. PERC ultimately dismissed the charge.
3 A-3925-15T1
In the Law Division, the trial court granted summary judgment
and dismissed the Union's lawsuit. We affirmed that decision on
appeal in an unpublished decision. Fraternal Order of Police
Camden Lodge #1, Inc. v. Cty. of Camden, No. A-5588-13 (App. Div.
Oct. 21, 2015).
Within a month of our decision, plaintiffs filed this
complaint against defendant, Camden County Police Department (the
Department), alleging violations of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Specifically,
plaintiffs claimed the Department did not hire them because of
their age, race or in retaliation for their opposition to illegal
discrimination or harassment. The Department moved to dismiss the
complaint based upon the Entire Controversy Doctrine (ECD).
In a concisely written, well-reasoned decision, Judge David
M. Ragonese examined in detail the factual underpinnings contained
in the Union's lawsuit, the PERC charge and the present suit. He
noted plaintiffs' complaint acknowledged the Department informed
them on November 25, 2013, they would not be rehired. Quoting the
Court's opinion in Wadeer v. New Jersey Manufacturers Insurance
Co., 220 N.J. 591, 605 (2015), Judge Ragonese wrote 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."
4 A-3925-15T1
Applying this and other precedent, Judge Ragonese concluded
plaintiffs' complaint was barred by the ECD. He reasoned:
[P]laintiffs' LAD claims were required to be
asserted in the 2013 action because those
claims could be most soundly and appropriately
litigated and disposed of in a single
comprehensive adjudication. Plaintiffs were
aware of their LAD claims while the prior
action was pending. Plaintiffs' failure to
develop their LAD claims in the prior action
makes it fair that they be precluded from
asserting them in a later action.
The judge further reasoned that plaintiffs' complaint "allege[d]
a discrete act of retaliation and discrimination, which took place
on November 25, 2013, when the county rejected their employment
applications." Yet, plaintiffs unfairly "wait[ed], and upon
obtaining an unfavorable result, refil[ed] under a different
theory[,] . . . precisely the kind of unfairness the ECD strives
to eliminate." Judge Ragonese granted the Department's motion and
dismissed plaintiffs' complaint.3
Before us, plaintiffs reiterate their position asserted in
the Law Division. They contend the Department failed to show
their omission of LAD claims from the earlier suit was anything
3 On the day the Department's motion to dismiss was heard,
plaintiffs' counsel sought to voluntarily dismiss the complaint
as to McEady, Babnew and Fritz, who apparently sought to pursue
an administrative remedy for their discrimination claims.
Although the record contains no order of dismissal, plaintiffs'
amended notice of appeal reflects McEady, Babnew and Fritz are not
participating in this appeal.
5 A-3925-15T1
but "an innocent omission by . . . uninformed litigant[s]," the
LAD case does not share "core facts" with the Union lawsuit, the
Department suffered no prejudice, and fairness and equity militate
against dismissal. We disagree and affirm substantially for the
reasons expressed by Judge Ragonese. We add only the following
brief comments.
"[T]he purpose[s] of the entire controversy doctrine 'are
threefold: (1) the need for complete and final disposition through
the avoidance of piecemeal decisions; (2) fairness to parties to
the action and those with a material interest in the action; and
(3) efficiency and the avoidance of waste and the reduction of
delay.'" Wadeer, supra, 220 N.J. at 605 (quoting DiTrolio v.
Antiles, 142 N.J. 253, 267 (1995)). Throughout its various
iterations, including as presently articulated in Rule 4:30A, the
ECD always reflected "our long-held preference that related claims
and matters arising among related parties be adjudicated together
rather than in separate, successive, fragmented, or piecemeal
litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co.,
207 N.J. 428, 443 (2011).
Critically, "[t]he ultimate authority to control the joinder
of parties and claims remains with the court; the parties may not
choose to withhold related aspects of a claim from consideration
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. . . ." Id. at 446 (emphasis added) (citations omitted).
Therefore,
[t]he [ECD] "requires a litigant to present
all aspects of a controversy in one legal
proceeding. It is intended . . . to prevent a
party from voluntarily electing to hold back
a related component of the controversy in the
first proceeding by precluding it from being
raised in a subsequent proceeding thereafter."
[Wreden v. Twp. of Lafayette, 436 N.J. Super.
117, 129 (App. Div. 2014) (quoting Hobart
Bros. Co. v. Nat'l Union Fire Ins. Co., 354
N.J. Super. 229, 240-41 (App. Div.) (citations
and internal quotation marks omitted), certif.
denied, 175 N.J. 170 (2002)).]
Despite plaintiffs' arguments to the contrary, we must
conclude they "had ample opportunity to . . . fully litigate[]
the[ir] claim[s] in the first action" but "simply chose not to."
DiTrolio, supra, 142 N.J. at 274. We find nothing unfair or
inequitable about applying the ECD under these circumstances to
bar plaintiffs from litigating claims they knew of during the
course of the prior litigation and failed to include, particularly
since plaintiffs were added to the complaint in the Union's lawsuit
by motion filed on the very day they were advised defendant would
not rehire them.
Affirmed.
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