The opinion of the court was delivered by: SAROKIN
This action is before the court on defendant's motion for summary judgment. At issue is the preclusive effect to be accorded a prior disposition of this matter in state administrative and judicial proceedings.
Plaintiff Darwin Wood alleges that he was discriminatorily terminated from his position as a third hand winder operator employed by defendant in violation of 42 U.S.C. § 1981. Plaintiff claims that his termination was based upon his race, and as retaliation for having filed an earlier action alleging a discriminatory failure to promote.
The termination underlying this action occurred on August 9, 1977. On October 12, 1977, plaintiff filed a complaint with the New Jersey Department of Law and Public Safety, Division on Civil Rights ("the Division"), pursuant to N.J. Stat. Ann. 10:5-13. The Division investigated plaintiff's complaint as required by N.J. Stat. Ann. 10:5-14, concluding that plaintiff had been terminated for cause and not on the basis of race. Based upon this investigation, on June 26, 1980 the Division made a determination of "no probable cause" and, almost three years after its initiation, the case was closed. Plaintiff appealed this determination to the Superior Court, Appellate Division, and on July 6, 1983, that court affirmed the Division, holding that "the finding of no probable cause was not an abuse of discretion and rested upon ample credible evidence." Affidavit of Roslyn S. Harrison, Appendix C at 2. On August 8, 1983, the instant action was filed. Defendant now moves for summary judgment, arguing that plaintiff has already litigated this action in the New Jersey state system and that 28 U.S.C. § 1738 requires the federal court to give the state judgment full preclusive effect.
Title 28 U.S.C. § 1738 states, in pertinent part:
. . . judicial proceedings . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of [the] State, Territory or Possession from which they are taken.
This provision has been construed to require federal courts to give preclusive effect to state court judgments whenever the courts of the state from which the judgments emerged would do so. See, e.g., Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). One is thus referred to state court rules of res judicata or collateral estoppel, unless Congress has explicitly carved out an exception to these principles with respect to particular statutes. The Supreme Court has held § 1738 applicable to suits brought under 42 U.S.C. § 1983, Allen v. McCurry, supra, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982). Furthermore, the Third Circuit Court of Appeals has extended Kremer to cover suits such as this one, brought under 42 U.S.C. § 1981. Davis v. United States Steel Supply, 688 F.2d 166 (3d Cir. 1982), cert. denied, 460 U.S. 1014, 103 S. Ct. 1256, 75 L. Ed. 2d 484 (1983). Thus, a prior adjudication of certain state statutory or common law rights may preclude federal causes of action arising under these statutes.
Defendant argues that the instant action would be precluded in New Jersey either under the common law principles of res judicata or collateral estoppel or as a result of statute, N.J. Stat. Ann. 10:5-27. In New Jersey
Res judicata as a principle of law bars a party from relitigating a second time what was previously fairly litigated and determined finally. The general requirements for the invocation of this principle are a final judgment by a court or tribunal of competent jurisdiction, identity of issues, parties and causes of action and thing sued for.
City of Hackensack v. Winner, 162 N.J. Super. 1, 28-29, 392 A.2d 187 (App. Div.), modified on other grounds, 82 N.J. 1, 410 A.2d 1146 (1978), citing Lubliner v. Board of Alcoholic Beverage Control for the City of Paterson, 33 N.J. 428, 165 A. 2d 163 (1960). Collateral estoppel, on the other hand, "is that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186-87, 380 A.2d 1128 (1977). It is indisputable that, as defendant argues, identical parties have been involved and identical issues raised in the prior New Jersey state proceedings.
The Superior Court, Appellate Division was certainly a court of competent jurisdiction. And N.J. Stat. Ann. 10:5-27 states, in pertinent part:
. . . as to practices and acts declared unlawful by . . . this act, the procedure herein shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.
Plaintiff does not contest the applicability of these criteria or argue that these standards have not been satisfied. Rather, he argues only that he should prevail on this motion because he has not yet had his day in court. The court agrees, and holds that, as plaintiff has never had the merits ...