PETER J. CRESCI v. THE BAYONNE PARKING AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3165-09T3

PETER J. CRESCI,

Plaintiff-Appellant,

v.

THE BAYONNE PARKING AUTHORITY,

Defendant-Respondent.

_______________________________________________

January 10, 2011

Submitted November 15, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4739-09.

Cresci, L.L.C., attorneys for appellant (Peter J. Cresci, on the brief).

Gordon & Rees, L.L.P., attorneys for respondent (Elizabeth F. Lorell, of counsel and on the brief; Sarir Zandi, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, R. 4:69, plaintiff, Peter J. Cresci, appeals from a trial court order dismissing the complaint. We affirm.

The complaint, filed on September 17, 2009, alleged violations by defendant, The Bayonne Parking Authority (BPA), of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21,1 in connection with its efforts to terminate plaintiff from his employment as General Counsel. Plaintiff contended that defendant had violated the requirements for adequate public notice of its meetings, N.J.S.A. 10:4-8d, -9a, and those mandating that official actions be taken in sessions open to the public, N.J.S.A. 10:4-12, -13. Therefore, the complaint asserted that the actions taken in respect of plaintiff were void. Plaintiff sought a judgment reinstating him to his position, and awarding attorneys' fees and costs, as well as holding the BPA commissioners to be "personally liable for their knowing violation of the OPMA." On an earlier date, July 13, 2009, plaintiff had filed a complaint in the United States District Court for the District of New Jersey, seeking determinations that acts with the same result by the BPA and certain individuals, including the BPA's seven commissioners, had violated several federal and State statutes and regulations, including the OPMA,2 and had constituted tortious conduct.

In an order entered on January 27, 2010, the trial court granted defendant's motion to dismiss the complaint. Judge DeCastro, in a written opinion attached to the order, explained that she viewed the action in lieu of prerogative writs, in the light of the pendency of a previously filed federal suit seeking essentially the same relief, to have violated the entire controversy doctrine.

Judge DeCastro held that, as in Gross v. Cohen Dufour & Assocs., 273 N.J. Super. 617 (Law Div. 1993), the state suit needed to be dismissed under the entire controversy doctrine because, in pursuing both a federal court action and a state court action, plaintiff had "fragmented [his] claims based upon identical events and transactions." See id. at 630. Dealing with the fact that the meeting events specified in the state action occurred after the federal suit had been filed, the judge determined that plaintiff should have amended his federal suit complaint to include the later events, and had had a convenient opportunity to do so when he amended that complaint for other purposes on November 5, 2009. She noted that the federal court "may exercise supplemental jurisdiction over related state claims pursuant to 28 U.S.C.A. 1367." See, e.g., Scott v. Board of Ed., City of East Orange, 219 F.R.D. 333, 336, 338 (D. N.J. 2004); Siss v. County of Passaic, 75 F. Supp. 2d 325, 328, 334-35 (D.N.J. 1999), aff'd o.b., 234 F.3d 1265 (3d Cir. 2000); see also Cunningham v. Lenape Reg. High Dist. Bd. of Ed., 492 F. Supp. 2d 439, 451 (D.N.J. 2007). The judge also observed that defendant had consented "to permitting plaintiff to amend the federal complaint to include the OPMA claim" reflected in the state action.

Guided by DiTrolio v. Antiles, 142 N.J. 253, 274 (1995), Judge DeCastro held: "[T]he underlying claim for both the federal and state action is plaintiff's alleged wrongful termination from his position." She concluded that the state action in lieu of prerogative writs should be dismissed on entire controversy doctrine grounds in order "to avoid piecemeal litigation, and to promote judicial efficiency and fairness to parties with material interests in the action."

We specifically reject plaintiff's argument that, in applying the entire controversy doctrine to dismiss the state action, Judge DeCastro effectively removed the state matter to federal court, exercising an authority that state courts do not possess. In entering the order on the form submitted by defendant, the prevailing party, Judge DeCastro struck out the clause that would have been a removal exercise. We take that to be a recognition on her part of the limitations under which her court functioned. This matter has not been removed to the federal court; the onus is on plaintiff to plead the underlying specific facts in his federal court suit.

We are in substantial agreement with the reasons articulated by Judge DeCastro, primarily her sense that plaintiff sought essentially the same relief in the two causes of action and may not, under the entire controversy doctrine, so fragment his claim.

1 The State action's allegations of OPMA violations specified three dates in late July and early August of 2009.

2 The federal action's allegations of OPMA violations specified eight dates culminating with July 13, 2009.