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October 16, 1989


The opinion of the court was delivered by: BROTMAN

 Presently before the court are the motion of Intervenor New Jersey Organ and Tissue Sharing Network ["Network"] for summary judgment and the cross-motion of Plaintiff Delaware Valley Transplant Program ["DVTP"] for summary judgment on Network's counterclaims. Defendant Molly Joel Coye, Commissioner of the New Jersey Department of Health [the "Commissioner"], has filed a brief in support of Network's motion for summary judgment.

 These motions present difficult issues involving interjurisdictional preclusion, the full faith and credit statute, 28 U.S.C. § 1738 (1982), the Eleventh Amendment, and the federal abstention doctrines. See Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Railroad Commission of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941).


 In August 1986, the Commissioner appointed a statewide task force to make a similar report concerning:

I. The consolidation and coordination of transplant organ retrieval in the State;
II. The equitable allocation of donated organs among transplant centers and patients; [and]
III. The equitable accessibility of transplantation and subsequent drug therapy to all medically qualified patients.

 Pretrial Order at 12. At this time there were three New Jersey-based OPAs: Transplant Foundation of New Jersey, Northern New Jersey Organ Procurement Program, and Our Lady of Lourdes Medical Center. Transplant Foundation and Northern New Jersey Organ Procurement both served the northern New Jersey area, while Our Lady of Lourdes served southern New Jersey along with DVTP, the only non-New Jersey-based OPA. In early 1987 Transplant Foundation and Northern New Jersey Organ Procurement Program merged; the combined organization, the defendant Network, received a Certificate of Need ("CON") conditioned on its filing an application to become the sole statewide OPA. *fn3" Pretrial Order at 28.

 In August, 1987, the state task force issued a draft report. In September, 1987, Network filed an application for a CON. Pursuant to the New Jersey statutory scheme, all potential affected persons were notified, including DVTP, and advised that they would be able to make a presentation to the appropriate state agency. By November, Network had entered into a preliminary agreement to merge with Our Lady of Lourdes, the remaining New Jersey-based OPA.

 Also at this time, DVTP made efforts to obtain a hearing on the propriety of issuing a CON to Network. Pretrial Order at 37, 41. DVTP was informed that Network was trying to consolidate into "a single statewide organ retrieval agency for the state through the integration of Our Lady of Lourdes Medical Center's organ procurement and transplant program." Pretrial Order at 36. As a transfer of ownership, the New Jersey Statewide Health Coordinating Council took the position that the application satisfied the "criteria for administrative review." Pretrial Order at 36. DVTP was further informed that "it has been our policy not to conduct a public review of applications in administrative review because there is no forum at the state level to where our views would be considered." Pretrial Order at 38. See Pretrial Order at 41 (the "Regulation and Statutes do not afford [DVTP] the right to this procedure [a hearing]"); id. at 42. DVTP did, however, provide statistical evidence and comments that were discussed at the December meeting of the Statewide Health Coordinating Council. Pretrial Order at 41. Subsequently, a Certificate of Need Analyst reviewed Network's application and recommended that it be granted. The Assistant Commissioner reviewed the recommendation before forwarding it to the Commissioner.

 This controversy centers on the Commissioner's decision on January 27, 1988, to grant a CON to Network to act as "an independently organized statewide organ retrieval agency for New Jersey." Pretrial Order at 42. The parties vigorously disputed whether the CON granted Network the exclusive right to act as an OPA within New Jersey. To a large extent, that dispute continues.

 On January 29, 1989, plaintiffs *fn4" filed suit in the federal district court for the District of New Jersey claiming that: (1) the Commissioner's issuance of the CON to Network violates plaintiffs' rights of interstate travel, equal protection, and substantive due process; (2) the Commissioner's actions are inconsistent with and preempted by federal regulations; and (3) the Commissioner's designation violates the Commerce Clause. Soon thereafter, Network intervened.

 On February 3, 1988, after concluding that DVTP had made the required showing, this court preliminarily enjoined the Commissioner from implementing her decision designating Network as the sole OPA for the State of New Jersey pending the final outcome of this litigation, or until such other time as the court might so direct. Delaware Valley Transplant Program, 678 F. Supp. at 483. Soon thereafter, Network filed a counterclaim seeking to stop DVTP from operating in New Jersey because it did not have a CON. Network also included a claim of tortious interference relating to two organ procurements by Network, one at the William B. Kessler Memorial Hospital in April, 1987, and the other at Helene Fuld Medical Center in June, 1987.

 On March 11, 1988, DVTP instituted a related action in the New Jersey Superior Court, Appellate Division, against the Commissioner and Network. *fn5" The papers filed in the New Jersey proceeding informed the state court of the pending federal action and stated that DVTP had commenced the action "to preserve certain issues of state law which cannot be adjudicated in the federal action." Although DVTP apparently sought a stay in the state court proceeding to allow for the development of a factual record in the federal proceeding, the state court declined to grant the stay, and on July 12, 1989, the New Jersey Superior Court affirmed the issuance of the CON. Delaware Valley Transplant Program v. Molly J. Coye, M.P.H., Commissioner, State of New Jersey Department of Health, and New Jersey Organ and Tissue Sharing Network, Inc., No. A-3108-87T7 (N.J. Super. Ct. App. Div. July 12, 1989) (per curiam).

 DVTP's position throughout the litigation has been that the Commissioner's decision to authorize Network as the sole statewide OPA is an impermissible protectionist effort to assure that organs retrieved from patients in New Jersey hospitals are used only for in-state transplants. Delaware Valley, 678 F. Supp. at 481. Essentially, DVTP argues that the Commissioner and Network acted to consolidate the relatively small New Jersey-based OPAs into one large statewide OPA out of fear that, as a result of the federal government Task Force's recommendation that small OPAs be merged into larger regional OPAs which operate more efficiently, the northern New Jersey OPAs would be coopted into a single New York metropolitan area OPA while the southern New Jersey OPAs would be merged into a Philadelphia metropolitan OPA. Network's position, as well as that of the Commissioner, is that the merger of the three New Jersey based OPAs is not a protectionist measure but is intended only to make the transplant procurement process more efficient. Network and the Commissioner claim that any effort to limit the organizations that may procure organs in no way restricts the organizations that may receive organs.


 The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the non-moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.


 A defense of claim or issue preclusion is one appropriate for summary judgment, because it calls for a legal determination by the court rather than a factual determination by a jury. See John M. Peduto and El-Ro, Inc. v. City of North Wildwood, 878 F.2d 725 (3d Cir. 1989); Purter v. Heckler, 771 F.2d 682, 690 (3d Cir. 1985); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974).

 It is now well established that "a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was entered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Peduto, 878 F.2d at 728. Accord Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); 28 U.S.C. § 1738 (1982). In Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982), the Supreme Court held that a federal court must give the same preclusive effect to a state court review of an agency decision as would be given in that state's courts. Here, the prior state court proceeding occurred first in the form of an administrative review before the Statewide Health Coordinating Council, the Certificate of Need Analyst, the Assistant Commissioner and the Commissioner, and on appeal before the New Jersey Superior Court, Appellate Division. Therefore the law of preclusion that a New Jersey court would apply controls this court's decision.

 The relatively unique procedural posture of this case is one that New Jersey preclusion law is unlikely ever to confront. This case poses the question, what is the preclusive effect of a state court judgment on a prior commenced federal action where the plaintiff could not have brought the entire suit in the federal court because of the Eleventh Amendment limitation to the subject matter jurisdiction of the federal courts. See supra n. 5. The New Jersey "entire controversy" doctrine may force a plaintiff who wishes her case to be heard in federal court to win the race to the courthouse. See Peduto, 878 F.2d at 729 n. 5. This case further asks whether the plaintiff must additionally win the race through the court house to have her federal claims heard in the federal court.

 This court faced a similar issue of interjurisdictional preclusion in John M. Peduto and El-Ro, Inc. v. City of North Wildwood, 696 F. Supp. 1004 (D.N.J. 1988), aff'd, 878 F.2d 725 (3d Cir. 1989). That case involved plaintiffs who brought an inverse condemnation proceeding in state court before bringing a civil rights claim under 42 U.S.C. § 1983 (1982) in federal court. The Third Circuit held that where the state court's jurisdiction was invoked in the first instance, the New Jersey entire controversy doctrine required the plaintiffs to bring the entire case in the state court. Relying on Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980), the Third Circuit held that although the operation of New Jersey preclusion law and federal takings jurisprudence required that the plaintiff bring the federal constitutional claims in state court, the "denial of a federal forum, however, does not amount to denial of due process." Peduto, 878 F.2d at 729.

 In Peduto this court declined to fashion a federal common-law exception to Section 1738. 696 F. Supp. at 1011, aff'd, 878 F.2d 725 (3d Cir. 1989). Here, if such a common law exception were to be constructed, it would have to be founded on the Eleventh Amendment and the due process clause. *fn7" In framing Section 1738, Congress could not have foreseen its application to the instant situation. Section 1738 was adopted in its original form in 1790. See Burbank, Interjurisdictional Preclusion, Full Faith and Credit, and Federal Common Law: A General Approach, 71 Cornell L.Rev. 733, 740 (1986). The Eleventh Amendment was not ratified until 1798, largely in response to the United States Supreme Court decision in Chisholm v. Georgia, 2 U.S. 419 (2 Dall. 1793), 1 L. Ed. 440. See C. Wright, Federal Courts § 48, at 206 (2d ed. 1976); Smith, Pennhurst v. Halderman: The Eleventh Amendment, Erie, and Pendent State Law Claims, 34 Buffalo L.Rev. 227, 245-50 (1985).

 Similarly, the difficult situation facing this court is probably one not anticipated by the framers of the Eleventh Amendment. Only as recently as 1984 did the Supreme Court make clear in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), that the state court claims in the instant case could be brought only in the state court. *fn8" Although there might be some tenuous basis for finding that the Eleventh Amendment together with the due process clause are an express or implied repeal of Section 1738, see Kremer, 456 U.S. at 481-82; Burbank, Interjurisdictional Preclusion, Full Faith and Credit, and Federal Common Law: A General Approach, 71 Cornell L.Rev. 733, 797-98 (1986), this court adheres to the well-established principle that a court should avoid an unnecessary constitutional determination. See Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 510, 32 L. Ed. 2d 257, 92 S. Ct. 1749 (1972); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 498, 85 L. Ed. 971, 61 S. Ct. 643 (1941); Burton v. United States, 196 U.S. 283, 295, 49 L. Ed. 482, 25 S. Ct. 243 (1905). Rather than wade into the constitutional abyss, this court will follow the path of New Jersey preclusion law. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985).

 1. Res Judicata

 As the Supreme Court has observed, "under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). See Purter, 771 F.2d at 690 (citing United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984)). The New Jersey entire controversy doctrine requires that "'a party who has elected to hold back from the first proceeding a related component of the controversy be barred from thereafter raising it in a subsequent proceeding.'" Peduto, 878 F.2d at 727 (emphasis added) (quoting Woodward-Clyde Consultants v. Chemical and Pollution Sciences, Inc., 105 N.J. 464, 473, 523 A.2d 131, 135, 25 ERC (BNA) 2098 (1987)).

 There is a substantial question as to whether DVTP elected not to bring the federal claims in the state proceeding because it is not clear that the federal claims could have been brought in the state proceeding. *fn9" This determination requires an evaluation of whether the state court had the power to hear the claims. Cf. Fay v. South Colonie Central School Dist., 802 F.2d 21, 29 (2d Cir. 1986) (New York res judicata law did not preclude subsequent action in federal court where state court lacked power to adjudicate claim) (citing Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986)); Restatement (Second) of Judgments § 26(c) and Comment (c)(1). *fn10"

 The court finds that DVTP did not elect not to present its constitutional claims in the state proceeding. To the contrary, DVTP sought repeatedly to present factual evidence in an open and public hearing. At every turn, however, DVTP's efforts were frustrated. The Statewide Health Coordinating Council informed DVTP "that a full review was not necessary and that the administrative review process was appropriate." Pretrial Order at 42. The minutes of the Statewide Health Coordinating Council further state that ...

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