SOOKRAM SUNDERDAT v. SAMUEL M. MANIGAULT

NOT FOR PUBLICATION WITHOUT THE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-0924-17T3

SOOKRAM SUNDERDAT,

          Plaintiff-Appellant,

v.

SAMUEL M. MANIGAULT and
BOARD OF TRUSTEES, NEWARK
HOUSING AUTHORITY,

          Defendants-Respondents,

and

NAZIR MUHAMMED and FAHIYM
MUHAMMED,

     Defendants.
_________________________________

                    Submitted November 14, 2018 – Decided November 28, 2018

                    Before Judges Fisher and Suter.

                    On appeal from Superior Court of New Jersey,
                    Law Division, Essex County, Docket No. L-4266-16.

                    Eldridge Hawkins LLC, attorneys for appellant
                    (Eldridge T. Hawkins, on the brief).
            Ogletree, Deakins, Nash, Smoak & Stewart, PC,
            attorneys for respondents (Richard C. Mariani and
            Jason W. Isom, on the brief).

PER CURIAM

      In this appeal, we consider an order that transferred this action to the Civil

Service Commission without prejudice to plaintiff's future pursuit of his pleaded

claims to the extent not precluded by the Commission's disposition. Finding no

error in the orders under review, and no merit in plaintiff's other arguments, we

affirm.

      Plaintiff Sookram Sunderdat, a former civil service employee of defendant

Newark Housing Authority, was suspended in June 2014 and served, in October

2014, with a disciplinary notice charging him with a theft. According to the

pleadings, departmental hearings occurred on three nonconsecutive days in late

2014, but no decision or final notice of discipline ever issued. Plaintiff later

commenced this action, alleging in an amended complaint1: (a) a wrongful

discharge from employment, (b) an intentional interference with economic

advantage, (c) a violation of the implied covenant of good faith and fair dealing,




1
  Plaintiff included only the first page of his original complaint in the appendix,
so it is not clear to us what might have been originally alleged.


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(d) a civil rights violation under the state constitution and  N.J.S.A. 10:6- -2(c),

(e) a civil conspiracy among the defendants, 2 and (f) defamation.

      After the amended complaint was filed, the remaining defendants – the

Authority and Samuel M. Manigault3 – moved under Rule 1:13-4(a) for a

transfer of the action to the Civil Service Commission. The trial judge granted

the motion to transfer; his order also dismissed the amended complaint without

prejudice.4 The judge later denied plaintiff's motion for reconsideration.

      Plaintiff appeals, arguing:

            I. THE TRIAL COURT FAILED TO COMPLY WITH
            R. 1:7-4 AS IT PLACED NO REASONS ON THE
            RECORD, MAKING IT DIFFICULT TO UNDER-
            STAND WHY THE COURT RULED AS IT DID.



2
  The individual defendants were alleged to be officers or employees of the
Authority.
3
   The claims against the individual defendants were dismissed for lack of
prosecution. When plaintiff was permitted to file an amended complaint he was
also permitted to reinstate his action against Manigault.
4
  Obviously, the judge did not, as his order might suggest, transfer an action
that was dismissed. The judge's comments, written at the bottom of the order,
reveal an intent to transfer questions about plaintiff's employment to the
Commission, not the civil causes of action that were dismissed without
prejudice. We assume the judge intended that once the issues falling within the
Commission's expertise were resolved, plaintiff would have the right to pursue
again any of the claims in the amended complaint not precluded or eviscerated
by the Commission's disposition.
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            II. [THE] LAW DIVISION HAS EXCLUSIVE
            JURISDICTION OVER AN NJLAD FILED CASE
            PRIOR TO A HEARING AND FINAL ADMINI-
            STRATIVE DECISION OF THE STATE ADMINI-
            STRATIVE AGENCY.

            III. DEFENDANT'S MOTION [TO TRANSFER] HAS
            NO VALID BASIS.

            IV. [THE TRIAL JUDGE'S] HABITUAL FORWARD-
            ING TO THE UNDERSIGNED THE COURT
            ORDERS     GRANTING      THE  ADVERSARY'S
            REQUESTED RELIEF IN A LATE FASHION IS
            EVIDENTIARY OF THE COURT'S PREDILECTION
            AGAINST THE UNDERSIGNED COUNSEL.

We find insufficient merit in these arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only a few comments.

      A court may transfer an action to another forum when the court either

lacks jurisdiction over the action "or [an] issue therein." R. 1:13-4(a). The

transfer order under review demonstrates that the judge recognized there were

uncertainties about the administrative proceedings that preceded this suit and

the issues regarding this civil service employee that fell within the expertise of

the Commission.

      Indeed, most perplexing are the facts that the disciplinary proceedings –

as both sides acknowledge – were never completed. Consequently, there is

considerable doubt about the status of plaintiff's relationship to the Authority.


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Even plaintiff seems unsure. At times in his amended complaint, plaintiff claims

he was terminated in June 2014, and he pleaded a wrongful discharge count,

which presupposes a termination, but, in the same pleading, plaintiff alleged

other facts that appear inconsistent with termination. That is, in one paragraph,

plaintiff alleged he "was an employee in good standing with . . . [the] Authority

when he was terminated . . . on June 26, 2014."          In another, he asserted

"defendants . . . wrongfully and unlawfully 'terminated' [him] . . . under

pretextual reasons of 'immediate suspension.'" And in yet another, he alleged

he "is still not legally terminated and continues in an unlawful suspension." We

assume the judge had these ambiguities in mind, and perhaps others, when he

wrote at the bottom of the transfer order that there was a need for development

of a factual record in the Commission. We conclude that the judge's transfer

order represented a sound and sensible approach to the ultimate disposition of

plaintiff's claims that also gives deference to the Commission's expertise.

      In Muise v. GPU, Inc.,  332 N.J. Super. 140, 161 (App. Div. 2000), we said

that when a suit "presents some issues that are within an agency's special

expertise and others which are not, the proper course is for the court to refer the

former to the agency, and then to apply the agency's findings or conclusions to

its determination of the remaining issues."      We assume that, although not


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expressed in those words, the trial judge intended this same approach here;

indeed, that was a sound approach because the transfer: (1) "ensures [the] claims

will be heard, as a preliminary matter, by [an agency] possessing expertise in

the area," City of Atlantic City v. Laezza,  80 N.J. 255, 265 (1979); (2) allows

for consistent interpretation and application of the agency's regulations,

Richardson v. Standard Guar. Ins. Co.,  371 N.J. Super. 449, 475 (App. Div.

2004); (3) permits creation of a factual record, Laezza,  80 N.J. at 265; and (4)

may ultimately lead the parties to conclude that the agency decision is

satisfactory, thereby "obviat[ing] resort to the courts," ibid.

      We conclude the transfer order represents a principled and practical

approach to a fair and proper disposition of plaintiff's claims.

      Affirmed.




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