NICHOLAS J. RUSSO, JR. v. ATLANTIC CITY BOARD OF EDUCATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6143-03T16143-03T1

NICHOLAS J. RUSSO, JR.,

Plaintiff-Appellant,

v.

ATLANTIC CITY BOARD OF

EDUCATION, JOSEPH LaTORRE,

individually and in his

official capacity,

Defendants-Respondents

and

JACK IMFELD, individually

and in his official capacity,

Defendant.

 

Argued March 1, 2006 - Decided March 20, 2006

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, ATL-L-3440-02.

Arthur L. Raynes argued the cause for appellant (Wiley, Malehorn, and Sirota, attorneys; Mr. Raynes and Kristen V. Hayes, on the brief).

Gregory J. Giordano argued the cause for respondent, Atlantic City Board of Education (Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey, attorneys; Mr. Giordano and Laurie B. Tilghman, on the brief).

PER CURIAM

Plaintiff Nicholas Russo is a truancy officer employed by the Atlantic City Board of Education (Board). He sued the Board and two of its members individually, alleging multiple causes of action, including violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; 42 U.S.C.A 1981 and 1983; and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21; he also alleged defamation and intentional infliction of emotional distress. He appeals from two May 28, 2004 summary judgments that dismissed his claims against the Board and defendant Joseph LaTorre, a Board member. We affirm in part and reverse in part.

Plaintiff was hired by the Board as a truancy officer in 1994. Prior to that employment, he served as a Board member from 1989 to 1993. As a Board member, he was instrumental in the Board's hiring of the district's first African-American superintendent. According to plaintiff, the hiring was opposed by many members of the community.

LaTorre and Imfeld are police officers who were elected to the Board in 2001. In his lawsuit, plaintiff claimed the Board, LaTorre, and Imfeld retaliated against him for his role in hiring the new superintendent. Specifically, plaintiff claimed that the Board arbitrarily changed his hours of employment, and refused to negotiate the terms of his employment, which resulted in his salary being disproportionate to the salaries of other Board employees. He asserted that Imfeld and LaTorre used their positions as police officers to harass him and falsely reported him for employment violations. Plaintiff alleged defendants published statements about him that "contained slanderous, false, libelous, malicious, scandalous and defamatory words." Finally, he alleged that the Board discussed him at Board meetings without providing notice to him, a violation of the OPMA.

Plaintiff's primary argument on appeal is that his complaint was dismissed before he had an opportunity to complete his discovery. Thus, we will review the procedural and factual posture of the case at the time summary judgment was entered.

Plaintiff filed an amended complaint on October 31, 2002. LaTorre and the Board filed answers by December 20, 2002. On January 31, 2003, the trial judge entered an order referring the matter to mediation. Among the provisions of the order, was that discovery was to proceed pursuant to the court rules, "independent of the mediation process." On May 29, 2003, the court entered a subsequent order captioned "Discovery Plan and Management Order." That order, which was structured as a stipulation among counsel, reads:

THE PARTIES HEREBY AGREE to comply with the discovery plan set forth below. Shall any of the parties desire to deviate from this schedule, they shall first attempt to obtain written consent of the other parties, and then, if necessary, seek the Court's assistance.

1. Defendants, Atlantic City Board of Education and Jack Imfeld, shall produce their answers to interrogatories and responses to Notices to Produce by June 15, 2003.

2. The depositions of all parties and fact witnesses shall be concluded by October 1, 2003.

3. Plaintiff's expert reports shall be produced by November 1, 2003.

4. Defendants' expert reports shall be produced by December 31, 2004.

5. All expert depositions shall be concluded by February 1, 2004.

6. Discovery shall end on March 6, 2004.

7. All dispositive motions shall be filed by March 5, 2004.

The judge executed a subsequent order, captioned "Amended Discovery Plan And Management Order," on November 13, 2003, which extended the date to take depositions of parties and fact witnesses until November 14, 2003; it also extended the dates to submit experts' reports and depose experts; but, it did not change the discovery end date March 6, 2004 or the date by which all dispositive motions were to be filed March 5, 2004. That order too was initially couched in the language of a stipulation. Before signing it, however, the judge eliminated the stipulation language that was identical to the first paragraph of the May 29, 2003 order.

According to plaintiff's counsel, because the mediation appeared to be proceeding successfully the parties reached an understanding that to conserve resources, depositions would be postponed until they became necessary. On December 8, 2003, after he received a letter from the Board's attorney concerning experts' reports, plaintiff's counsel responded that it had been his "impression that further discovery was being held in abeyance pending the mediation." He was "quite certain" that such an understanding was discussed with the mediator.

On January 22, 2004, LaTorre notified the mediator and the parties that he was exercising his right to opt out of the mediation. Thereafter, plaintiff served deposition notices for LaTorre, Imfeld, and Board member Theresa Kelly. Plaintiff scheduled the depositions for February 17 and 18, 2004, beyond the deposition deadline set forth in the amended Discovery Plan and Management Order, but before the final discovery deadline. Between February 6 and 12, 2004, defendants' attorneys notified plaintiff that their clients would not appear for the depositions because the time set forth in the November 13 order to conduct depositions had passed.

Meanwhile, LaTorre filed a motion for summary judgment on January 2, 2004; plaintiff opposed the motion and cross-moved to compel the depositions of LaTorre and Kelly. In support of the cross-motion, plaintiff's attorney certified that the depositions had been postponed by mutual understanding to conserve resources while the mediation appeared to be proceeding successfully but LaTorre's decision to opt out made the depositions necessary.

LaTorre's motion for summary judgment and plaintiff's cross-motion were first argued on February 20, 2004. Plaintiff's counsel claimed that he required depositions of LaTorre and Kelly to properly defend the summary judgment motion. When asked by the court what he would gain by the depositions, counsel responded that: "We would be interested in knowing what sort of relationship [LaTorre] has with Ms. Kelly and what has been his motivating factors in the harassment that he has exercised upon Mr. Russo." During the colloquy with the court, plaintiff's counsel conceded that plaintiff did not have "a cause of action against Mr. LaTorre" under the OPMA.

Responding to plaintiff's request to be permitted to take depositions past the deposition deadline in the November 13, 2003 order, the court commented:

I'm not inclined frankly to prolong this. I'm not inclined even -- we have a discovery end date of March 6th. My only . . . concern is this. We generally, although I have talked about the "Few Good Men" scene, we generally are not too concerned with the intermediate deadlines and those management orders. We're concerned with that discovery end date. Here the discovery end date has not come. It's March 6th, but I want to take a look at this a little further before I indicate that Mr. LaTorre has to be subjected to a deposition. I'm not . . . in a position to make the call right this moment, but I will be on Monday . . . .

The Board filed its summary judgment motion on April 7, 2004, approximately one month after the deadline for dispositive motions had passed. That motion, as well as the pending motions that were first argued on February 20, were heard on May 28, 2004. During that argument, the judge again asked plaintiff's counsel why depositions were not taken during the time frame established by the November 13, 2003 order. Counsel replied:

[A] mediation was scheduled originally for early October. That mediation was put off, and I don't recall the exact reason.

. . . .

[O]ne of the first things that the mediator said was let's put off these motions, and that's what happened. So, the motions got put off really in conjunction with the mediator.

. . . .

There was not a request from the mediator, no, but there was a discussion at the mediation about putting off the motions, and everybody agreed and the motions were put off with everyone's consent.

. . . .

[I]t was discussed -- put off the motions, and there was consent to put off the motions.

Counsel for the Board said the Board never agreed to postpone discovery. The attorney told the motion judge:

My recollection, and I don't know that you were in the room when this was going on, Mr. Raynes [plaintiff's counsel], so it's quite possible you got a different take from the mediator, but I can tell you because I recall specifically. The mediator did ask whether Mr. LaTorre would be willing to put off his motion, and I actually called Mr. Latorre and he indicated that he would not be.

I then reported that back to the mediator, and the mediator at that point, and this was all not with Mr. Raynes present, indicated to me that if my client wasn't willing to adjourn the motion, that he would report back to the judge that my client was being uncooperative in the mediation.

We then left the mediation, and on the way home I telephoned my client again who advised me that if that was what the mediator was saying, then he would prefer to opt out of mediation because he didn't feel that the mediator was being helpful in the settling the case. And that's why we ultimately opted out.

In response, plaintiff's counsel told the court he had not been aware of defense counsel's discussion with the mediator. Counsel stated:

I guess we were remiss in not pushing the depositions earlier, but we were relying on what seemed to be a fruitful mediation. And even the whole day seemed to me to be a mediation that was going to end up in a settlement. . . .

And just as far as good cause goes, this is a complicated matter with various causes of action and -- over a span of time, and relying on the paper discovery, I feel, would prejudice us.

We did make the application and sent the notices before the deposition -- I'm sorry -- before the discovery end date even though it was after the deposition deadline, and a case like this without having those depositions, especially with one of the parties threatening affirmative claims against my client, I really feel would be a great prejudice to us, Judge.

So, certainly Your Honor's right, there was an order in place. We should have complied fully with the order, but in the course of the months that were involved in which people were just trying to get together for this mediation and the mediation took place, and then as soon as it ended we had these motions to deal with, I think that we were diligent, you know reasonably diligent.

The trial judge denied plaintiff's cross-motion to compel the depositions of Kelly and LaTorre. Emphasizing that the depositions of parties and fact witnesses should have been completed by November 14, 2003, and that the order referring the matter to mediation specifically indicated that discovery should proceed, the court said:

I came to the bar in an era where we didn't take depositions in every case like now. . . . I know one thing, it was cheaper to prepare the case in those days and the trials didn't take as long because we didn't have as much to rely upon one way or the other.

But in any event, this trial is scheduled for June 7, and the Court will hear the motions for summary judgment that are pending today, but will not extend discovery and will not adjourn the trial date.

The judge concluded that "the rationale given, waiting because of the mediation, is not good cause."

On that same date, the trial judge granted both the Board's and LaTorre's summary judgment motions. The court found that plaintiff, in his deposition, had "essentially walked away from the claim against Mr. LaTorre," because, when questioned about it, "he didn't have any information that he could supply to support his claim." With respect to plaintiff's discrimination claims against the Board, the trial court found that plaintiff did not present adequate evidence to support his allegations of retaliation.

The judge dismissed plaintiff's intentional state tort claims on the grounds that notice was not provided to the public entities as required by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act). He dismissed plaintiff's OPMA claim, reasoning that the OPMA does not give an individual plaintiff the right to recover monetary damages for a violation of the act.

"[A] party is entitled to conduct full discovery to find support for a claim before a motion for summary judgment will be entertained, especially when critical facts are within the knowledge of other parties to the action." Standridge v. Ramey, 323 N.J. Super. 538, 547 (App. Div. 1999). Every litigant who has a bona fide cause of action should be afforded the opportunity for "full exposure" of his or her case. Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193 (1988) (quoting United Rental Equip. Co. v. Aetna Life and Cas. Ins. Co., 74 N.J. 92, 99 (1977)).

A trial judge's ruling on discovery issues is entitled to deference, and will not be reversed absent a showing of an abuse of discretion. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997); Il Grande v. DiBenedetto, 366 N.J. Super. 597, 610 (App. Div. 2004). As an appellate court, we should not substitute our judgment for that of the trial court unless that court's finding was so wide of the mark that a manifest denial of justice resulted. Hill v. Newman, 126 N.J. Super. 557, 563 (App. Div. 1973), certif. denied, 64 N.J. 508 (1974).

Applying the law to the facts and procedural history here, we conclude that the court's refusal to allow plaintiff to depose defendants and Board member Kelly constituted a manifest denial of justice under the circumstances. We arrive at this decision for a number of reasons. First, the discovery end date had not expired at the time plaintiff sought to take the depositions. The judge himself recognized that in most cases it is the discovery end date, not the intermediate discovery schedule, which controls. At the February 20 argument, he said: "[W]e generally are not too concerned with the intermediate deadlines and those management orders. We're concerned with that discovery end date. Here the discovery end date has not come." In that statement the court was correct. The depositions were scheduled before the discovery end date. There was no justification for not permitting them to take place before the court ruled on the summary judgment motions.

This is not a case where it was critical to take fact witness's depositions so the experts could prepare timely reports. Indeed, defendants did not argue that the depositions should not be taken because it would delay the submission of experts' reports or the taking of experts' depositions. Nor was that a factor relied on by the motion judge.

Another reason we find the decision to have been an abuse of discretion is that the court virtually ignored plaintiff's counsel's arguments that he was under the impression, based upon his conversations with the mediator, that the depositions would be delayed. While defense counsel indicated that he had a different impression from his conversation with the mediator, he acknowledged that plaintiff's counsel was not present during those conversations. In fact, plaintiff's representation that his understanding was based on his conversations with the mediator was unchallenged. Yet, the court rejected that argument out of hand. Plaintiff's representations, unchallenged as they were, constituted good cause for granting the application.

Nor should the June 7, 2004 trial date have been a reason to deny the request to take depositions. The trial date was not a consideration at the February 20, 2004 argument, and only became an issue at the May 28, 2004 proceeding because plaintiff's motion had not been resolved on the initial return date three months earlier.

Next, while the trial judge strictly held plaintiff to the time frames in the November 13, 2003 management order, he did not similarly restrict the Board. That order indicated that all dispositive motions were to be filed by March 5, 2004. The Board did not file its summary judgment motion until more than a month after that date had passed. While this issue was raised with the motion judge on May 28, 2004, he declined to address it because it had not been raised in plaintiff's papers. We consider it inequitable to have inflexibly held plaintiff to the time frames set forth in the November 13, 2003 order, and not to have held the Board to those same restrictions.

We also note that the May 29, 2003 discovery plan and management order, which was initially submitted as a stipulation among the parties, indicated that: "Shall any of the parties desire to deviate from this schedule, they shall first attempt to obtain written consent of the other parties, and then, if necessary, seek the Court's assistance." (emphasis added). This appears to have given the parties the right to adjust the discovery deadlines without first seeking the court's permission. While this language was deleted from the November 13, 2003 order, no reason for its deletion has been provided.

We agree with the motion judge that the record before him supported summary judgment when he dismissed plaintiff's retaliation, discrimination, and civil rights claims against LaTorre and the City. And, based on our review of plaintiff's deposition testimony and the certifications of record, plaintiff appears to have substantial hurdles ahead of him to reach a jury. Nevertheless, he deserves an opportunity to complete his discovery before facing motions to dismiss his complaint. We therefore reinstate plaintiff's claims for retaliation, discrimination, and civil rights violations to allow plaintiff an opportunity to complete discovery.

We next turn to the intentional torts. The trial judge dismissed plaintiff's state law claims for defamation and intentional infliction of emotional distress because plaintiff failed to file a tort claims notice with the Board as required by the Act. While the trial judge was correct that a plaintiff must comply with the tort claims notice requirements of the Act to proceed on its intentional tort claims, that requirement is only effective to causes of action accruing after June 29, 2004. See Velez v. City of Jersey City, 180 N.J. 284, 297 (2004), which was decided after summary judgment was entered in this case. Therefore, because plaintiff's alleged causes of action accrued prior to that date, it was not necessary that plaintiff satisfy the Act's notice requirements. Hence, we reinstate plaintiff's claims for intentional infliction of emotional distress and defamation. Again, we do not address plaintiff's substantive proofs on these issues.

Finally, we affirm the trial court's dismissal of plaintiff's claim of violations of the OPMA. First, plaintiff has conceded that it made no such claim against LaTorre. Second, and significantly, the OPMA does not give an individual the right to seek damages for a violation of the act's provisions. See N.J.S.A. 10:4-15, -16, -17; Matawan Reg. Teacher's Ass'n v. Matawan-Aberdeen Reg'l Bd. of Educ., 212 N.J. Super. 328, 334 (Law Div. 1986).

Plaintiff also seeks an injunction to prevent the Board from violating the OPMA in the future. The arguments as to this issue are without sufficient merit to warrant additional discussion in this opinion. R. 2:11-3(e)(1)(E). Consequently, we affirm dismissal of plaintiff's claim pursuant to the OPMA as to all parties.

In sum, we affirm dismissal of the OPMA and reinstate plaintiff's complaint as to the Board and LaTorre on all remaining claims. We remand to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

 

Plaintiff has settled his claims against defendant Jack Imfeld.

At the close of the February 20 proceeding, the judge said he would conduct a conference call at 1:00 p.m. the following Monday to decide the issue. It does not appear that the call took place. If it did, we have not been provided with a transcript.

For example, at his deposition, plaintiff testified that he had no evidence to suggest that LaTorre retaliated against him for his involvement in hiring the superintendent.

(continued)

(continued)

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A-6143-03T1

March 20, 2006