RICHARD S. MUTI v. WILLIAM H. SCHMIDT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2906-05T32906-05T3

RICHARD S. MUTI,

Plaintiff-Appellant,

v.

WILLIAM H. SCHMIDT and

COUNTY OF BERGEN,

Defendants-Respondents.

_________________________________

 

Argued: November 28, 2006 - Decided March 2, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-6737-01.

Richard S. Muti, appellant, argued the cause pro se.

Adam B. Schwartz argued the cause for respondents (Pashman Stein, attorneys; Michael S. Stein and Mr. Schwartz, on the brief).

PER CURIAM

Plaintiff, Richard S. Muti, was, until discharged from his position, the Deputy First Assistant Prosecutor for Administration and Office Manager of the Bergen County Prosecutor's Office. Defendant William H. Schmidt was the Prosecutor of Bergen County who terminated plaintiff's employment. This dispute arises from defendant's discharge of plaintiff from that position.

On August 10, 2001, plaintiff filed a six-count complaint in the Law Division alleging violation of 42 U.S.C.A. 1983 by reason of a First Amendment infringement under color of state law; violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; defamation; and violation of State constitutional guarantees contained in N.J. Const. art. 1, 1 and 6. On August 14, 2001, defendants removed the matter to the United States District Court for the District of New Jersey; and, on October 22, 2001, they moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the complaint. On November 9, 2001, plaintiff filed an amended complaint in three counts in the U.S. District Court, again alleging violations of 1983 and CEPA, as well as the retaliation provisions of the Americans With Disabilities Act, 42 U.S.C.A. 12101 to 12300, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. On December 31, 2002, the U.S. District Court dismissed the federal law claims and remanded the "remaining state law claims . . . to the Superior Court of New Jersey." Plaintiff appealed that determination and, on December 29, 2004, the United States Court of Appeals for the Third Circuit affirmed.

The amended complaint was filed in the Law Division on February 17, 2005. Defendants then moved, returnable December 16, 2005, "to dismiss [the] complaint in lieu of answer." Argument on the motion occurred on December 20, 2005, and Judge Donohue issued a comprehensive written opinion in the matter on December 27, 2005.

Plaintiff appeals in a single point: "The amended complaint, accepting all allegations therein as true and drawing all reasonable inferences therefrom, stated viable causes of action under New Jersey State law and should not have been dismissed under R. 4:6-2(e)." Having analyzed the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards, we are in substantial agreement with the reasons for decision Judge Donohue articulated.

Judge Donohue was correct to treat the matter as a motion for summary judgment when both parties relied on matter outside the pleadings. See R. 4:6-2 (last sentence). Reading the claims indulgently and "consider[ing] whether the competent evidential materials presented, when viewed in the light most favorable to [plaintiff], are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of [plaintiff]," Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we, as Judge Donohue, are unable to discern any prospect for success under any of the State statutes cited or on any other basis. As to CEPA, the primary source for plaintiff's suit, his claims must be seen to allege faulty judgment and mismanagement by the Prosecutor, not any violation of law or of public policy bearing in any direct way on "the public health, safety, or welfare or protection of the environment." N.J.S.A. 34:19-3c(3). In the circumstances, there was no reasonable basis for any belief on plaintiff's part that the Prosecutor had violated any law or public policy in a way that supervened the duty of loyalty and obedience to higher authority plaintiff owed to him. Plaintiff was not privileged to act as he did upon his belief that his judgment in the matter at issue was better than the Prosecutor's, or that he could express his contrary views to various County officials without risking the disapproval that led to his discharge.

The order dismissing the complaint with prejudice is affirmed.

 

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A-2906-05T3

March 2, 2007