Hicks v. State of NJ Department of Corrections

REPLY BRIEF to Opposition to Motion

D.N.J.March 3, 2017

HUGHES JUSTICE COMPLEX • TELEPHONE: (609) 292-6252 • FAX: (609) 984-6446 New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and Recyclable CHRIS CHRISTIE Governor State of New Jersey OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW CHISTOPHER S. PORINNO Attorney General KIM GUADAGNO Lt. Governor 25 MARKET STREET PO Box 112 TRENTON, NJ 08625-0112 Michelle L. Miller Acting Director joel.clymer@dol.lps.state.nj.us March 3, 2017 Via Electronic Court Filing and Regular Mail Hon. Brian R. Martinotti, U.S.D.J. UNITED STATES DISTRICT COURT District of New Jersey Clarkson S. Fisher Federal Bldg & U.S. Cthse 402 East State Street, Room 341 Trenton, NJ 08608 Re: Hicks v. State of New Jersey, Department of Corrections, et al. Civil Docket No. 3:16-cv-00927 - MAS-LHG Dear Judge Martinotti: This office represents Defendant, Major Gerald Caldarise, in the above referenced matter. Please except this letter brief in lieu of a more formal submission in reply to Plaintiff’s opposition to Defendant’s Motion to Dismiss currently returnable on March 6, 2017. I have recently become aware of a recent District of New Jersey decision directly on point with an issue in this case that supports Defendant’s contention that Plaintiff’s New Jersey Law Against Discrimination (“LAD”) claims against Defendant Caldarise in his individual capacity should be dismissed. The Honorable Michael A. Shipp, U.S.D.J., recently found that where LAD claims against a State entity have been dismissed in Federal Court on sovereign immunity grounds, a plaintiff’s claims against an individual defendant for aiding and abetting under the LAD must also be dismissed. Shreve v. N.J. Motor Vehicle Comm'n, 2016 U.S. Dist. LEXIS 129608, *14-*15 (D.N.J. Sept. 22, 2016). Judge Shipp cited to the cases of Hughes and Monaco for the proposition that "[I]ndividual liability does not exist under the NJLAD absent evidence that the individual was 'aiding and abetting' discrimination by the employer...” because “…[s]uch proof is impossible if the [c]ourt has no jurisdiction over the employer." Id. (citing Hughes v. N.J., Office of the Public Defender/Dep’t of Public Advocate, No. 11-1442, 2012 U.S. Dist. LEXIS 30607, 2012 WL 761997, at *3 (D.N.J. Mar. 7, 2012); see also, Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 307 n.15 (3d Cir. 2004). Case 3:16-cv-00927-BRM-LHG Document 58 Filed 03/03/17 Page 1 of 3 PageID: 408 March 3, 2017 Page 2 In Shreve, Judge Shipp found that because he dismissed the State entity, MVC, on sovereign immunity grounds, that the individual defendant, Stephen Murphy, could not be found liable under the LAD for aiding and abetting because there was no longer a principal actor in the litigation for him to have aided and abetted. Shreve, 2016 U.S. Dist. LEXIS 129608, *15. Just as in Shreve, here, the alleged principal actor, Department of Corrections (“Corrections”), cannot be found liable under the LAD because this Court found that it is entitled to sovereign immunity from suit under the Eleventh Amendment and was dismissed. Therefore, it would be impossible to establish aiding and abetting liability for Defendant Caldarise under the LAD. Therefore, the aiding and abetting claim against Defendant Caldarise under the LAD should be dismissed. Although Plaintiff relies upon District of New Jersey cases holding otherwise, it is important to note that those cases relied upon authority that improperly failed to take into consideration how New Jersey State Courts interpret the LAD. (See Plaintiff’s Opp. Brief at 5- 6). 1 Indeed, those cases relied heavily upon a holding in Dennis v. Sparks, 449 U.S. 24, 26, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), which had absolutely nothing to do with individual liability for aiding and abetting under the LAD. Uwalaka v. State of N.J., CIV. 04-2973, 2005 WL 3077685, at *3 (D.N.J. Nov. 15, 2005). In Sparks the Supreme Court found that judicial immunity did not extend to individual defendants against whom a plaintiff alleged § 1983 claims in Federal Court. Not only is Sparks distinguishable because it did not involve an issue of Eleventh Amendment sovereign immunity, but, more importantly, it did not involve the adjudication of State law anti-discrimination claims in Federal Court. Thus, there is no Federal authority directly on point with the issue at hand. However, Defendant contends that, absent such authority, the Court should apply the State Court interpretation of the LAD and dismiss Plaintiff’s aiding and abetting claim against Caldarise. Dismissing aiding and abetting claims against an individual defendant under the LAD where the principal State actor was dismissed on sovereign immunity grounds does not extend Eleventh Amendment immunity to the individual defendant. Shreve, 2016 U.S. Dist. LEXIS 129608, at *15. Rather, such a result is necessary because aiding and abetting under the LAD draws on principles of agency that require “the party whom the defendant aids [to] perform a wrongful act that causes injury.” Tarr v. Ciasulli, 181 N.J. 70, 82-84, 853 A.2d 921 (2004). Therefore, “individual liability does not exist under the NJLAD absent evidence that the individual was ‘aiding and abetting’ discrimination by the employer.” Hughes, 2012 U.S. Dist. 1 Plaintiff cites to the District Court cases of Lindesy v. New Jersey Dept. of Corrections, CIV 04-3815 (RMB), 2007 WL 836667, at *6-7 (D.N.J. Mar. 14, 2007), Uwalaka v. State of N.J., CIV. 04-2973, 2005 WL 3077685, *2-3 (D.N.J. Nov. 15, 2005), and Wahab v. State of New Jersey Dept. of Envtl. Protec., CIV.A. 12-6613 PGS, 2015 WL 1969405, at *8 (D.N.J. Apr. 30, 2015) for the ill-reasoned proposition that an aiding abetting claim should not be dismissed against an individual defendant simply because the principal State actor was dismissed on sovereign immunity grounds because such a result would improperly extend the State’s sovereign immunity to the individual defendant. Case 3:16-cv-00927-BRM-LHG Document 58 Filed 03/03/17 Page 2 of 3 PageID: 409 March 3, 2017 Page 3 LEXIS 30607, at *9 (quoting Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 138 (D.N.J. Mar. 18, 1999)). “Such proof is impossible if the Court has no jurisdiction over the employer.” Hughes, 2012 U.S. Dist. LEXIS 30607, at *9. Therefore, Plaintiff’s insistence on the distinction between an employer that has not been found liable on the merits and one that has not been found liable because of immunity is irrelevant. Absence of employer liability for any reason completely negates a claim for aiding and abetting under the LAD. Shreve, 2016 U.S. Dist. LEXIS 129608, at *15. Allowing Plaintiff’s aiding and abetting claim to survive on this motion to dismiss where there is no possibility of principal actor liability would mean that Defendant Caldarise could have aided and abetted his own conduct which cuts directly against the agency principles that the New Jersey Courts relied upon to interpret individual liability under the LAD. For the foregoing reasons, and those provided in Defendant’s moving brief, the LAD claims against Defendant Major Gerald Caldarise in his individual capacity should be dismissed. Respectfully submitted, CHRISTOPHER S. PORINNO ACTING ATTORNEY GENERAL OF NEW JERSEY By: /s/Joel Clymer___________ Joel Clymer Deputy Attorney General Encl. Cc: Timothy Seiler, Esq. (via Overnight Mail) Case 3:16-cv-00927-BRM-LHG Document 58 Filed 03/03/17 Page 3 of 3 PageID: 410