LARRY MUNGIELLO v. FEDERAL EXPRESS CORPORATION

NOT FOR PUBLICATION WITHOUT THE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-0

LARRY MUNGIELLO, ROBERT CHABAK

and ROCCO NOTARFRANCESCO,

Plaintiffs-Appellants,

v.

FEDERAL EXPRESS CORPORATION,

Defendant-Respondent.

_________________________________

November 21, 2016

Argued October 31, 2016 Decided

Before Judges Nugent, Haas and Currier.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7813-12.

Vincent A. Antoniello argued the cause for appellants (Resnick Law Group, PC, attorneys; Mr. Antoniello, on the briefs).

Sandra C. Isom of the Tennessee bar, admitted pro hac vice, argued the cause for respondent (Elizabeth Low and Ms. Isom, attorneys; Ms. Low and Ms. Isom, on the brief).

PER CURIAM

Plaintiffs Larry Mungiello, Robert Chabak, and Rocco Notarfrancesco appeal from the Law Division's February 20, 2015 order granting defendant Federal Express Corporation's motion for summary judgment and dismissing plaintiffs' complaint alleging, among other things, discrimination and retaliation in violation of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, on statute of limitations grounds. We affirm.1

We derive the following material facts from the evidence submitted by the parties on defendant's summary judgment motion, viewed in a light most favorable to plaintiffs, the non-moving parties. Polzo v. Cnty. Of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Defendant employed plaintiffs in New Jersey as couriers. Defendant terminated Mungiello on August 31, 2005; Notarfrancesco on April 28, 2008; and Chabak on July 10, 2008.

On December 28, 2005, three other couriers filed a proposed class action suit against defendant in the United States District Court for the Central District of California. Clausnitzer v. Fed. Express Corp., SA CV 05-1269 DOC-AN (C.D. Cal. Dec. 28, 2005). These couriers alleged that defendant discriminated against them and all similarly situated couriers on the basis of their age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. 621-624. On February 22, 2006, Mungiello and Notarfrancesco opted into this class action, and Chabak joined them on May 15, 2007.

On October 19, 2007, the federal district court denied the couriers' motion for class certification and dismissed the claims of the opt-in plaintiffs, including Mungiello, Chabak, and Notarfrancesco, without prejudice. The court found that the plaintiffs in Clausnitzer "were not similarly situated because many members of the purported class did not meet the class definition of being over [forty years old] and having more than [ten] years of service with" defendant. In addition, some of the class members, like Chabak and Notarfrancesco, were still employed by defendant, and others had left their jobs voluntarily. "Given the variety of circumstances relating to the [individual couriers'] circumstances, the [c]ourt concluded that [defendant's] defenses to the claims would vary substantially, and that [its] defenses did not pertain to the opt-in class as a whole."

The plaintiffs in Clausnitzer filed an appeal to the Ninth Circuit Court of Appeals. During the pendency of this appeal, the same attorney who had represented the Clausnitzer plaintiffs filed a virtually identical proposed class action on March 20, 2008 in the United States District Court for the Northern District of California. Hulac v. Fed. Express Corp., SA CV 08-4449 DOC-AN (C.D. Cal. March 20, 2008).2 Mungiello, Chabak, and Notarfrancesco were all named plaintiffs in the Hulac litigation.

In January 2009, defendant filed a motion to preclude class claims and to bar the Hulac plaintiffs from relitigating the same class certification issues previously determined in Clausnitzer. The plaintiffs responded by filing a motion to stay the proceedings in Hulac pending the Ninth Circuit's decision in the Clausnitzer appeal. On February 18, 2009, the district court granted the plaintiffs' motion to stay proceedings in the Hulac case, including defendant's motion to preclude class claims, pending appeal.

On November 20, 2009, the Ninth Circuit affirmed the district court's decision denying class certification in Clausnitzer. On December 7, 2009, defendant notified the district court in the Hulac matter of the Ninth Circuit's decision in Clausnitzer.

Thereafter, plaintiffs took no action to pursue their individual ADEA claims in Hulac, and they also never sought class certification. Instead, the matter lay dormant for over two years. Finally, the district court conducted a status conference on August 23, 2012, where the parties entered into a "stipulation." The plaintiffs agreed to dismiss "[t]he ADEA collective claim and the ERISA class claim" with prejudice. They further agreed that "[t]he individual claims of all plaintiffs other than the first named plaintiff, Fred Hulac, will be dismissed without prejudice." Plaintiffs' attorney also agreed to pay defendant's attorney's "out-of-pocket expenses" in connection with an earlier August 6, 2012 conference that plaintiffs' attorney failed to attend. Significantly, the stipulation did not provide that defendant waived its right to assert a statute of limitations defense in any future proceeding.

On October 9, 2012, Mungiello and Chabak filed the complaint that is the subject of this appeal in the Law Division. For the first time, Mungiello and Chabak alleged that defendant discriminated against them on the basis of their age, subjected them to a hostile work environment, and retaliated against them in violation of the LAD. On June 9, 2014, Judge Charles Powers, Jr. granted Mungiello and Chabak's motion to amend the complaint to add Notarfrancesco "as a party plaintiff." Plaintiffs filed the amended complaint on June 17, 2014, and discovery ensued.

On January 5, 2015, defendant filed a motion for summary judgment, arguing that plaintiffs' LAD claims were barred by the two-year statute of limitations applicable to such claims. See Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 324 (2010) (holding that a LAD complaint must be filed within two years of the date on which the cause of action accrued) (citing Montells v. Haynes, 133 N.J. 282, 285 (1993)). Plaintiffs responded by asserting that the time to file their LAD claims had been "tolled" by their participation in the prospective class actions in the Clausnitzer and Hulac matters. Following oral argument on February 20, 2015, Judge Powers rendered a comprehensive written opinion, granting defendant's motion for summary judgment and dismissing plaintiffs' complaint as untimely.

The judge began by noting that each plaintiff's LAD claims accrued upon his termination from defendant's employ and, therefore, the two-year statute of limitations began to run on their individual termination dates. However, citing well-established precedents, the judge found that a plaintiff's participation in a class action lawsuit would toll the running of the limitations period for their individual claims. SeeAm. Pipe & Constr. v. Utah, 414 U.S. 538, 553, 94 S. Ct. 756, 766, 38 L. Ed. 2d 713, 726 (1974); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S. Ct. 2392, 2395-96, 76 L. Ed. 2d 628, 633 (1983); Staub v. Eastman Kodak Co., 320 N.J. Super.34, 58 (App. Div.), certif. denied, 161 N.J.334 (1999).

As the judge observed, tolling only applies when the claims presented in a plaintiff's subsequent suit are substantially the same as those presented in the prior class action. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 467, 95 S. Ct. 1716, 1723, 44 L. Ed. 2d 295, 305 (1974). Here, plaintiffs raised ADEA claims in Clausnitzer and Hulac, which the judge found were substantially similar to the LAD claims they asserted in the present matter. See Lawrence v. Nat'l Westminster Bank, 98 F.3d 61, 65 (3d Cir. 1996) (noting that "[a]ge discrimination claims under the ADEA and LAD are governed by the same standards and allocation of burdens of proof").

Thus, the judge concluded that the two-year LAD limitations period was subject to tolling in this case because all three plaintiffs participated in proceedings in which class certification was sought. Relying upon our decision in Staub, the judge stated the general rule for determining the period of tolling as follows

[F]rom the filing of a putative class action until the entry of an order denying class certification, the applicable statute of limitations will be tolled from the claim of a plaintiff who would be a member of the asserted class if the class were certified and whose identity was disclosed or readily ascertainable upon the filing of the class action or upon its amendment within the period of limitations or who shows that he has deferred filing an individual suit in reliance on the pendency of the class action, provided that the plaintiff s claim is substantially the same as a claim alleged by the putative class plaintiff.

[Staub, supra, 320 N.J. Super. at 58.]

Thus, the tolling period ends when class certification is denied. American Pipe, supra, 414 U.S.at 553, 94 S. Ct.at 766, 38 L. Ed. 2d at 726. Moreover, if a plaintiff fails to file a motion for class certification, tolling ends when it becomes evident that certification is futile or will not be pursued. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1018-19 (9th Cir. 2000). Finally, a plaintiff cannot extend the tolling period by filing a second, substantially similar class action complaint after class certification is denied in a prior action in which he or she has participated. Yang v. Odom, 392 F.3d 97, 105 (3d Cir. 2004), cert. denied, 544 U.S. 1048, 125 S. Ct. 2294, 161 L. Ed. 2d 1088 (2005).

Applying these recognized principles, Judge Powers proceeded to consider each plaintiff separately. As noted above, defendant terminated Mungiello on August 31, 2005. Thus, the two-year statute of limitations to file his LAD claims began on that date and would have ended on August 31, 2007.

After running for approximately six months, however, the judge found that the limitations period was tolled beginning on February 22, 2006, when Mungiello opted into the Clausnitzer litigation, where class certification was sought. This period of tolling ended on October 19, 2007, when class certification was denied in Clausnitzer. Staub, supra, 320 N.J. Super. at 58. Because the Hulac matter was substantially the same lawsuit as Clausnitzer, the judge found that Mungiello's subsequent participation in that litigation did not continue to toll Mungiello's LAD claims. Yang, supra, 392 F.3d at 105. Therefore, the judge concluded that the remaining eighteen months of the LAD limitations period resumed running on October 19, 2007, and expired in April 2009, over three years before Mungiello filed his complaint in this matter on October 9, 2012. Accordingly, the judge dismissed Mungiello's complaint.

Judge Powers also dismissed Chabak's and Notarfrancesco's claims on statute of limitations grounds. Defendant terminated Notarfrancesco on April 28, 2008, and Chabak on July 10, 2008, and their LAD claims accrued on those dates. The Hulac litigation, which had been filed on March 20, 2008, was pending when both Chabak and Notarfrancesco were terminated. However, plaintiffs never pursued class certification in Hulac. Moreover, the judge found that, based on the collateral estoppel doctrine, seeking class certification in Hulac would have been futile after November 20, 2009, the date the Ninth Circuit Court of Appeals upheld the federal district court's denial of class certification in Clausnitzer or, at the latest, after December 7, 2009, the date defendant apprised the Hulac court of the Ninth Circuit's decision. Aguilera, supra, 223 F.3d at 1018-19.

Using December 7, 2009 as the date the two-year LAD statute of limitations began to run, Judge Powers found that Chabak's complaint, filed almost three years later on October 9, 2012, was clearly untimely. The judge also dismissed Notarfrancesco's LAD claims on statute of limitations grounds because they were filed even later, in June 2014, when he joined the litigation. This appeal followed.

On appeal, plaintiffs raise the following contentions

POINT I: The Trial Court Erred by Applying the American Pipe/Crown, Cork & Seal Tolling Rules Applicable to Class Action Claims Rather than the American Pipe/Crown, Cork & Seal Tolling Rules Applicable to Individual Claims.

POINT II: In the Alternative, the Trial Court Erred by Not Applying Binding New Jersey State Law under Staub v. Eastman Kodak Co.

POINT III: In the Alternative, the Trial Court Erred by Not Applying the Law of ADEA Collective Action Tolling.

POINT IV: Even If Plaintiffs' Claims Were Otherwise Untimely, the Trial Court Erred in Not Applying Equitable Tolling.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. While the trial court's legal conclusions are owed no deference, Nicholas, supra, 213 N.J. at 478, this court should affirm the judgment if it finds that the trial court's conclusions of law were correct. Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010).

We have considered plaintiffs' contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Powers properly granted summary judgment to defendant, and affirm substantially for the reasons expressed in his thoughtful February 20, 2015 written opinion. However, we make the following comments.

Contrary to plaintiffs' contentions, Judge Powers properly applied the tolling rules established in American Pipe, Crown, Cork & Seal, and Staub. As established in these cases, plaintiffs' LAD claims were only tolled until the question of class certification was determined. For Mungiello, that occurred on October 19, 2007, when class certification was denied in Clausnitzer. Tolling ended for Chabak and Notarfrancesco on December 7, 2009, when seeking class certification in Hulac became futile. Thus, Mungiello and Chabak's October 9, 2012 LAD complaint was filed well beyond the expiration of the two-year statute of limitations, and Notarfrancesco's decision to join the litigation in June 2014 was even more out of time. Thus, the judge correctly dismissed the complaint on statute of limitations grounds.

Plaintiffs argue that the LAD statute of limitations did not begin to run until their individual claims were dismissed without prejudice in Hulac on August 24, 2012. We disagree.

It is well settled that "[a] dismissal without prejudice [merely] means that there has been no adjudication on the merits and that a subsequent complaint alleging the same cause of action will not be barred by reason of its prior dismissal." Czepas v. Schenk, 362 N.J. Super. 216, 228 (App. Div. 2003) (citing O'Loughlin v. Nat'l Cnty. Bank, 338 N.J. Super. 592, 603 (App. Div.), certif. denied, 169 N.J. 606 (2001)). Thus, "a defendant in the second suit remains free to assert a statute of limitations defense." Ibid.

As noted above, defendant did not agree to waive its statute of limitations defense when the Hulac litigation was dismissed. Here, the two-year statute of limitations on plaintiffs' individual LAD claims stopped being tolled for Mungiello in October 2007 and for Chabak and Notarfrancesco in December 2009. Thus, their opportunity to pursue LAD claims against defendant had expired long before the dismissal of the Hulac litigation and the filing of their complaint in this action in October 2012. Therefore, we reject plaintiffs' contention on this point.

Plaintiffs' assertion that the judge erred by failing to "apply[] the law of ADEA collective action tolling" also lacks merit. In support of this contention, plaintiffs cite Sperling v. Hoffman-La Roche, Inc., 24 F.3d 463 (3d Cir. 1994). However, this decision is inapposite to the issues at hand. In Sperling, the court held that a timely ADEA collective action tolled the limitations period for ADEA plaintiffs who joined the pending collective action after the limitations period for their individual claims expired. Id.at 472. Thus, this decision has no relevance to the case at hand, where class certification was never granted in Clausnitzeror Hulac, and where the two-year limitations period for plaintiffs' LAD claims expired well before they filed their October 9, 2012 complaint in this action.

Finally, we are satisfied that the judge properly rejected plaintiffs' contention that the statute of limitations on their LAD claims should have been "equitably tolled." Equitable tolling applies where "a plaintiff is misled . . . and as a result fails to act within the prescribed time limit." Bustamonte v. Borough of Paramus, 413 N.J. Super.276, 299 (App. Div. 2010) (quoting Villalobos v. Fava, 342 N.J. Super. 38, 50 (App. Div.), certif. denied, 170 N.J.210 (2001)); see alsoFreeman v. State, 347 N.J. Super.11, 31 (App. Div.) (stating that a court may apply equitable tolling where the plaintiff "has been induced or tricked by his [or her] adversary's misconduct"), certif. denied, 172 N.J.178 (2002). Equitable tolling may also be applied where a plaintiff is prevented from timely asserting his or her claims "because of gross attorney error." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999).

Here, as Judge Powers found, "there is no evidence [p]laintiffs were prevented from asserting their rights in an extraordinary way such as by the intentional inducement or trickery of" defendant. In addition, the judge found no evidence that their attorney's conduct in Clausnitzer or Hulac constituted "gross attorney error." We agree with Judge Powers' assessment of the record and, accordingly, discern no basis for disturbing his reasoned determination to dismiss plaintiffs' complaint on statute of limitations grounds.

Affirmed.

1 Plaintiffs' notice of appeal stated they were also appealing the trial court's April 24, 2015 order denying their motion for reconsideration of the February 20, 2015 order. However, plaintiffs' brief does not address this issue. We therefore assume this issue has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that issue raised in notice of appeal but not briefed is abandoned). In any event, as reflected in our discussion of the propriety of the trial judge's dismissal of plaintiffs' complaint below, it is clear that plaintiffs did not demonstrate any grounds that would warrant reconsideration of that order.

2 In July 2008, the Northern District transferred the Hulac matter to the Central District based on its "obvious relationship to Clausnitzer."