ZACHARIAH CLIFTON, JR. v. NEW JERSEY TRANSIT CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1095-08T11095-08T1

ZACHARIAH CLIFTON, JR. and CONSTANCE CLIFTON,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT CORPORATION and NEW JERSEY TRANSIT RAIL OPERATIONS, INC.,

Defendants-Respondents.

________________________________

 

Submitted: August 25, 2009 - Decided:

Before Judges C.L. Miniman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8201-07.

Richard S. Mazawey, attorney for appellants.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer M. Carlson, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiffs Zachariah Clifton, Jr. (Zachariah), and Con stance Clifton (Constance) appeal from an order dismissing their claims against defendants New Jersey Transit Corporation and New Jersey Transit Rail Operations, Inc., under applicable statutes of limitations and on other grounds. Because their claims are clearly as a matter of law barred by statutes of limitations, we affirm.

Defendants employed Zachariah under a Collective Bargaining Agreement (CBA) until October 29, 2001, when defen dants termi nated his employment. Pursuant to the CBA, his union grieved, and then arbitrated, this adverse employment action. The arbi trators decided adversely to Zachariah on November 25, 2002, mailing their decision to him on January 3, 2003. On August 6, 2003, Zachariah filed an astute pro se complaint against these defendants in the United States District Court for the District of New Jer sey, which he amended on November 5, 2003. Therein, he alleged one cause of action under the Family and Medical Leave Act (FMLA), 29 U.S.C.A. 2611 to 2654; three under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and one under the Railway Labor Act (RLA), 45 U.S.C.A. 151 to 188.

Defendants subsequently moved for summary judgment on the FMLA and RLA claims. The District Court judge issued an opinion and order on September 22, 2005, dismissing the FMLA and RLA claims and declining to exercise supplemental jurisdiction under U.S.C.A. 1367(c)(3) because he dismissed all claims over which the court had original jurisdiction. In dismissing the LAD claims, the District Court judge cited Kohn v. AT&T Corp., 58 F. Supp. 2d 393 (D.N.J. 1999). That case states:

Section 1367(c) permits a court to decline to exercise supplemental jurisdic tion when "the district court has dismissed all claims over which it has original juris diction." 28 U.S.C. 1367(c)(3); see also Carnegie-Mellon [Univ. v. Cohill, 484 U.S. [343,] 350[, 98 L. Ed. 2d 720, 729-730, 108 S. Ct. 614, 619 (1988)] ("When the Federal-law claims have dropped out of the lawsuit in its early stages and only State-law claims remain, the Federal court should decline the exercise of jurisdiction by dis missing the case without prejudice.") (foot note omitted); Fuentes v. South Hills Cardi ology, 946 F.2d 196, 198 n.3 (3d Cir. 1991) (dismissal of "pendent State law claim[]" proper where Federal claims dismissed for lack of subject matter jurisdiction).

[Id. at 421-22 (emphasis added).]

The order entered by the judge provided that summary judg ment was granted as to the federal claims and the court declined to exercise supplemental jurisdiction over the state claims. It then provided that it was "ORDERED that the Amended Complaint of Plaintiff Zachariah Clifton, Jr., is DISMISSED WITH PREJUDICE" and closed the case. However, it is clear from the opinion that dismissal of the state claims was without prejudice. In any event, no appeal was taken.

With the assistance of counsel, this action was begun on or about October 12, 2007. The complaint alleged four violations of the LAD; tortious interference with economic advantage; rack eteering, contrary to N.J.S.A. 2C:41-1 to -6.2; violation of the Federal Employers Liability Act (FELA), 45 U.S.C.A. 51 to 60; and loss of consortium. Defendants answered the complaint on or about April 22, 2008, asserting applicable statutes of limitations as one of their affirmative defenses.

Defendants thereafter sought dismissal of the complaint, which was heard on September 12, 2008. The judge granted the motion, finding that "[a]ll of [the] claims are barred by the applicable statute of limitations for all of the reasons placed on the record[,]" although the judge did not place any fact-findings or legal conclusions on the record, contrary to Rule 1:7-4(a). This appeal followed.

Plaintiffs contend that their discrimination claims are not barred by N.J.S.A. 2A:14-2, which our Supreme Court applied to the LAD in Montells v. Haynes, 133 N.J. 282 (1993), because "the trial court failed to consider the extraordinary circumstances that belie [sic] this matter . . . ." Those circumstances were the allegedly erroneous dismissal of the federal complaint with prejudice, "including the state claims that were never decided on the merits." Zachariah also contends he is "a severely men tally handicapped Pro Se, [who] had no knowledge that the Dis trict Judge's Order was improper in dismissing the state law claims with prejudice" and he "believed he was left with no recourse." He also claims he was "ambushed" by defendants in the federal action and "bombarded" with discovery requests despite his men tal handicap. He urges that dismissing his LAD claims under these circumstances will deprive him of his First Amendment right to access the courts.

Plaintiffs further contend that the judge erred in dismiss ing their racketeering claims because they did allege the com mission of one of the requisite crimes assault and because the statute of limitations should not act as a bar for the same rea sons stated with respect to the discrimination claims. They urge their failure to include this claim in their federal action is irrelevant because Zachariah "believed he was barred forever from bringing any State law claims regarding any of the issues that were dismissed with prejudice in the Federal Court order."

Finally, plaintiffs contend the judge erred in dismissing their FELA claims for the same reasons stated with respect to the discrimination claims and because they are entitled to the benefit of the discovery rule that applies to the FELA statute of limitations. They contend Zachariah "while becoming disabled in 2001, did not make any causal connection between the disabil ity and the workplace harassment and discrimination until early 2005." As a result, they contend the FELA claim was timely.

Our review of a trial court order is limited to matters in the record on appeal. We ordinarily will not consider material that is not in the record by way of adduced proof (deposition testimony, interrogatory answers, certifica tions, etc.), judi cially noticeable facts, stipulations, admis sions, or a recorded proffer of excluded evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007); Cipala v. Lincoln Technical Inst., 179 N.J. 45, 52 (2004); Gross v. Borough of Neptune City, 378 N.J. Super. 155, 159 (App. Div. 2005); Darak jian v. Hanna, 366 N.J. Super. 238, 246 (App. Div. 2004). Pleadings are not evidence. Scott-Newcomb, Inc. v. Marron, 125 N.J.L. 628, 629 (E. & A. 1941). However, the pleadings are con sid ered on a motion to dismiss based on a failure to state a claim, which was the basis identified by the judge for the motion.

Plaintiffs' complaint does allege Zachariah "went into a state of severe depression and anxiety, and failed to report to work" and "subsequent thereto, learned that this depression was caused by the intolerable, racially discriminatory episodes he was forced to endure during his employment." But the complaint does not allege Zachariah "had no knowledge that the District Judge's Order was improper in dismissing the state law claims with prejudice" and he "believed he was left with no recourse." Neither did it allege Zachariah was "ambushed" by defendants in the federal action and "bombarded" with discovery requests despite his mental handicap. It contains no allegation that Zachariah "believed he was barred forever from bringing any State law claims regarding any of the issues that were dismissed with prejudice in the Federal Court order." Finally, the com plaint does not allege Zachariah "while becoming disabled in 2001, did not make any causal connection between the disability and the workplace harassment and discrimination until early 2005." Furthermore, no certification from Zachariah attesting to these facts is in the record on appeal.

In the absence of a certification from Zachariah, we will not consider any of these "facts" in deciding this appeal, as they are not properly before us. M.M., supra, 189 N.J. at 278; Cipala, supra, 179 N.J. at 52; Gross, supra, 378 N.J. Super. at 159; Darakjian, supra, 366 N.J. Super. at 246. The pleadings, however, do establish that Zachariah admitted in his 2003 amended complaint that he filed his federal action on August 6, 2003; thus, we can calculate the running of time. His federal action was dismissed on September 22, 2005, and this action was begun on or after October 12, 2007, when his counsel signed the state complaint.

Indisputedly, the LAD claims are time-barred because three years, ten months, and twenty-eight days elapsed during which no com plaint was pending. N.J.S.A. 2A:14-2; Montells, supra, 133 N.J. 282. Thus, the judge did not err in dismissing these claims under the applicable two-year statute of limitations.

One court in New Jersey has concluded that the statute of limitations applicable to a civil racketeering action is four years. In re Liquidation of Integrity Ins. Co., 245 N.J. Super. 133, 137 (Law Div. 1990). We have twice noted that we did not have to decide the issue of whether the four-year limitations period of N.J.S.A. 56:9-14 applicable to the antitrust actions or the five-year limitations period of N.J.S.A. 2C:1-6g applica ble to criminal actions applied because the complaints in those cases would be untimely under either limitations period. Smith v. Estate of Kelly, 343 N.J. Super. 480, 486 n.4 (App. Div. 2001); Fraser v. Bovino, 317 N.J. Super. 23, 34 (App. Div. 1998). Once again, we do not have to decide the issue because plaintiff's racketeering claims were not included in the federal action and were not filed in state court until five years, eleven months, and thirteen days after Zachariah was terminated from his employment. Dismissal of this claim was entirely appropriate.

This leaves only plaintiffs' FELA claims for consideration. Claims brought under the FELA are subject to a three-year period of limitations. 45 U.S.C.A. 56. "The claim accrues when 'the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need[s] to investigate to determine whether he is entitled to redress.'" Polizzi v. N.J. Transit Rail Operations, Inc., 364 N.J. Super. 323, 328 (App. Div. 2003) (citation omitted). More than three years have elapsed since defendants terminated plaintiff's employment, which gave him "sufficient critical facts" to con duct an inves tigation. The judge committed no legal error in dismissing these claims.

 
In affirming the dismissal of this action, we do not con sider any of the equitable tolling arguments advanced by plain tiffs as they are all predicated on facts which are not contained in the record on appeal.

Affirmed.

This opinion contains a recitation of the facts. Clifton v. N.J. Transit Corp., No. 03-3725, slip op. at 2-6 (D.N.J. Sep. 22, 2005). We do not repeat them here except to the extent that they bear on the application of the statutes of limitations.

The First Count alleged a claim for hostile work environment, but did not cite the LAD.

We do not suggest that the cause of action for civil racketeering accrued when defendants terminated Zachariah's employment, but that is certainly the latest date when it may have accrued.

(continued)

(continued)

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A-1095-08T1

October 19, 2009