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Coleman v. Kaye

June 26, 1996

BARBARA COLEMAN,

APPELLANT NOS. 95-5439/5742

v.

JOHN KAYE, INDIVIDUALLY, AND IN HIS CAPACITY AS MONMOUTH COUNTY PROSECUTOR; COUNTY PROSECUTOR'S OFFICE OF THE COUNTY OF MONMOUTH; JOHN DOES, 1-100; JANE DOES, 1-100

COUNTY OF MONMOUTH,

INTERVENOR IN D.C.

BARBARA COLEMAN

v.

JOHN KAYE, INDIVIDUALLY, AND IN HIS CAPACITY AS MONMOUTH COUNTY PROSECUTOR; THE COUNTY PROSECUTOR'S OFFICE OF THE COUNTY OF MONMOUTH; JOHN DOES, 1-100; JANE DOES, 1-100

COUNTY OF MONMOUTH

INTERVENOR IN D.C.

JOHN KAYE,

APPELLANT NOS. 95-5469/5708



On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 91-cv-01140)

BEFORE: COWEN and ROTH, Circuit Judges and CINDRICH, District Judge *fn*

COWEN, Circuit Judge.

Argued April 29, 1996

Filed June 26, l996)

OPINION

Plaintiff-appellant Barbara A. Coleman *fn1 appeals an order of the district court granting defendant-appellee Monmouth County's posttrial motion to vacate a jury verdict of $15,000 in compensatory damages and $350,000 in punitive damages based upon three findings of intentional sex discrimination. The principal questions we must decide are whether county prosecutors in New Jersey act as state or county officials when they make personnel decisions and whether the district court properly exercised in personam jurisdiction. We hold that county prosecutors act on behalf of the county in this setting. We further hold that the County of Monmouth has waived any defense of lack of personal jurisdiction. See Fed. R. Civ. P. 12(h)(1). Accordingly, we will reverse the May 4, 1995 order of the district court vacating the jury verdict against the County of Monmouth.

The jury also found Prosecutor Kaye to be liable in his individual capacity for $10,000 in compensatory damages and $50,000 in punitive damages. Kaye appeals the district court's denial of his Rule 50(b) motion for judgment as a matter of law on the ground of evidentiary insufficiency. As we find sufficient evidence in the record to support a finding of liability against Kaye for both compensatory and punitive damages, we will affirm the district court's denial of Kaye's motion. Furthermore, since the jury verdict against the County of Monmouth must be reinstated, liability for the payment of attorneys' fees must be apportioned between Kaye and the County of Monmouth, and we will remand the matter for further proceedings consistent with this opinion.

I.

Barbara Coleman was employed as an investigator at the Monmouth County Prosecutor's Office during John Kaye's tenure as Monmouth County Prosecutor. As County Prosecutor, Kaye had plenary authority in deciding whom to hire, fire, promote or demote at the Monmouth County Office. Although Kaye received input from subordinates as to the qualifications of persons considered for promotion, it is uncontested that he possessed the final authority to determine who worked for the Monmouth County Prosecutor and in what capacity.

Coleman applied for promotions at the Monmouth County Prosecutor's Office in May of 1989, June of 1990 and October of 1990. In May of 1989 Coleman sought to be promoted to either sergeant or lieutenant. She was not promoted to either position. Similarly, Coleman's applications to be promoted to sergeant were denied in both June and October of 1990. On all three occasions, a male investigator was promoted over Coleman.

On March 12, 1991, Coleman filed a complaint in the District Court for the District of New Jersey naming as parties John Kaye, individually and in his official capacity as Monmouth County Prosecutor, the County Prosecutor's Office of the County of Monmouth, John Does 1-100 and Jane Does 1-100. The County of Monmouth was not named separately as a defendant. The complaint alleged that the defendants had discriminated against Coleman based upon her sex by failing to promote her to sergeant (three times) and lieutenant (once) on various occasions in 1989 and 1990. Coleman brought claims under 42 U.S.C. 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq., and pendent state claims under the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. Section(s) 10:5-1 et seq. The summons and complaint were served upon Kaye, who also accepted service on behalf of the Monmouth County Prosecutor's Office.

This matter proceeded to trial in district court on September 20, 1994. On September 29, 1994, the case was sent to the jury, which made the following pertinent factual findings: (1) Prosecutor Kaye had intentionally discriminated against Coleman based upon her sex by not promoting her to sergeant in June of 1990 and October of 1990; (2) the County of Monmouth did not adopt a policy or custom of sex discrimination that resulted in Coleman not being promoted in May of 1989, June of 1990 or October of 1990; (3) Kaye and/or one or more of his subordinates who made recommendations to him intentionally discriminated against Coleman because she was a woman, and such discrimination proximately caused her to be passed over for promotion in May of 1989, June of 1990 and October of 1990; and (4) Kaye and/or one of his subordinates did not intentionally discriminate against Coleman in retribution for her filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). The jury's award of compensatory and punitive damages against both the County of Monmouth and Prosecutor Kaye was based upon these findings. The verdict sheet that the district court submitted to the jury to record its findings provided no separate section in which it could articulate the precise grounds upon which the parties had been held liable.

Faced with the prospect of paying a substantial damages award, the County of Monmouth filed a motion to intervene pursuant to Fed. R. Civ. P. 24, which was granted by the district court. Monmouth County also filed a motion pursuant to Fed. R. Civ. P. 60(b)(4) to vacate the jury verdict. The County argued that the jury verdict should be vacated because Coleman had not properly effected service of process upon the County. It also contended that Prosecutor Kaye is a state official over whom the County exercised no control. Monmouth County maintained that New Jersey law requires a finding of "control" in order for it to be held liable in damages under the LAD. *fn2 The County argued that since it had no control over Kaye's personnel decisions, then a fortiori county prosecutors in New Jersey are not agents of the counties they serve. Thus, Monmouth County argued that even if county prosecutors engage in acts of intentional discrimination against their own employees, such conduct nonetheless cannot expose the counties to liability under the LAD.

The district court found the County of Monmouth's arguments to be convincing and granted its motion to vacate Coleman's jury verdict against the County on two alternative grounds. The district court held that it had lacked in personam jurisdiction to enter a judgment against the County of Monmouth because it had not been served properly under either Fed. R. Civ. P. 4(j)(2) or N.J. Ct. R. 4:4-4(a)(8), the local procedural rule to which Rule 4(j) refers. Alternatively, the district court found that the County of Monmouth could not be held liable under the New Jersey LAD premised upon a theory of respondeat superior for the actions of Prosecutor Kaye. Applying the agency principles adopted by the New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445 (N.J. 1993), the district court held that there was no master/servant relationship between the County of Monmouth and Prosecutor Kaye. On the contrary, the district court concluded that "county prosecutors are controlled by the Attorney General for the State of New Jersey[,] a member of the New Jersey executive branch of government." Coleman v. Kaye, No. 91-1140, slip op. at 7 (D.N.J. May 4, 1995).

Prosecutor Kaye responded to the October 17, 1994 jury verdict against him by filing a Fed. R. Civ. P. 50(b) motion for judgment as a matter of law, arguing that there was insufficient evidence in the record to support a finding that he had discriminated against Coleman. Kaye also argued that there was an insufficient foundation in the record to support an award of either compensatory or punitive damages against him. The district court denied Kaye's Rule 50(b) motion in its May 4, 1995 order.

On September 7, 1995, the district court granted Coleman's application for attorneys' fees and costs. The order provided that Coleman's counsel be awarded $101,184.00 in attorneys' fees and $3,968.92 in costs. Since the County of Monmouth had already been dismissed from this action, Prosecutor Kaye was ordered to pay the entire sum of $105,152.92. This appeal followed.

II.

The district court had jurisdiction pursuant to 28 U.S.C. 1331, 28 U.S.C. Section(s) 1343(a)(3) and 28 U.S.C. Section(s) 1367. We have jurisdiction under 28 U.S.C. Section(s) 1291. We exercise plenary review over jurisdictional issues. Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir. 1992). Our review of the district court's interpretation and application of state law is plenary, Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 369 (3d Cir. 1996), as is our review of a denial of a motion for judgment as a matter of law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). A Rule 50(b) "motion should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Id.

Punitive damages may be awarded for violation of the New Jersey LAD "when the wrongdoer's conduct is especially egregious." Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 464 (N.J. 1993) (quoting Leimgruber v. Claridge Assocs., 375 A.2d 652, 654 (N.J. 1977)). Therefore, "the employer should be liable for punitive damages only in the event of actual participation by upper management or willful indifference." Id. Similarly, punitive damages may be awarded under 42 U.S.C. Section(s) 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640 (1983).

"We review the reasonableness of an award of attorney's fees for an abuse of discretion." Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). Our review is plenary "when a district court fails to apply the appropriate standards for granting legal fees . . . ." Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc.- Pension Fund v. Centra, 983 F.2d 495, 508 (3d Cir. 1992).

III.

Although Coleman's suit against the County of Monmouth and Prosecutor Kaye arose from the same underlying facts, the claims that the defendants raise on appeal require the resolution of entirely different issues. We will therefore address their various contentions in separate sections. First, we will address Coleman's appeal, which assails the two grounds upon which the district court vacated the jury verdict against the County of Monmouth.

A.

The district court relied upon Fed. R. Civ. P. 4(j)(2) and New Jersey Court Rule 4:4-4(a)(8) to support its conclusion that the court lacked in personam jurisdiction over Monmouth County. Rule 4(j)(2) provides that

[s]ervice upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.

Fed. R. Civ. P. 4(j)(2). The manner of service prescribed under the local New Jersey rules is set forth in N.J. Ct. R. 4:4-4(a)(8), which provides, in relevant part, that service must be effected "by serving a copy of the summons and complaint . . . on the presiding officer or on the clerk or secretary thereof." Reading these two provisions together, the district court concluded that since Kaye "is not the presiding officer, clerk or secretary of the County of Monmouth . . . plaintiff did not properly effect service of the summons and complaint upon the County of Monmouth." Coleman v. Kaye, No. 91-1140, slip op. at 4 (D.N.J. May 4, 1995). As such, the court concluded that "the jury's verdict . . . against the County of Monmouth cannot stand." Id.

The district court was correct to the extent that it concluded that Kaye did not fit the proper description of anyone designated to receive service of process on behalf of the County of Monmouth under either Rule 4(j) or N.J. Ct. R. 4:4-4(a)(8). Moreover, as we explained in Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993), "[a] district court's power to assert in personam authority over parties defendant is dependent not only on compliance with due process but also on compliance with the technicalities of Rule 4." This analysis is not controlling, however, when a party submits itself to the jurisdiction of the district court, thereby waiving any claim that the district court lacked in personam jurisdiction. See Fed. R. Civ. P. 12(h)(1). *fn3 This is exactly what happened here.

The County of Monmouth became involved in this lawsuit both before and after Coleman filed her complaint in district court. For example, before commencing the present action in district court, Coleman submitted a complaint to the EEOC. Monmouth County elected to respond to Coleman's EEOC complaint. Assistant Monmouth County Counsel Robert Hrebek sent a letter to Joe G. Rosenberg, the Supervisory Investigator of the EEOC, advising him that Hrebek had "been assigned to handle [this matter] on behalf of the Monmouth County Prosecutor by Malcolm V. Carton, Esq., Monmouth County Counsel. . . [and to] please direct all future correspondence in this case to my attention as Assistant County Counsel." App. at 145.

After Coleman filed her complaint, Special County Counsel Richard T. O'Connor sent a letter, dated August 12, 1993, to the clerk of the court. In this letter, O'Connor requested the clerk to

enter the appearance of the firms of Gerald L. Dorf, P.C. and Malcolm V. Carton, Monmouth County Counsel, by Richard T. O'Connor, Special County Counsel, on behalf of Defendants John Kaye individually and in his capacity as Monmouth County Prosecutor and the County Prosecutor's Office of the County of Monmouth in the above-captioned matter.

Id. at 141. The August 12, 1993 letter listed both O'Connor and Dorf as "Attorneys for Defendants John Kaye and the County Prosecutor's Office of the County of Monmouth." Id.

At no time did representatives from the County Counsel's Office ever interpose an objection on jurisdictional grounds. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure 1344, at 173 (2d ed. 1990) ("If defendant appears in the action, he must interpose any . . . objections he may have by motion or in his answer or they will be deemed waived by virtue of Rule 12(h)(1)."). Quite to the contrary, the representations made by attorneys from the County Counsel's Office indicate that Monmouth County was acutely aware of its possible exposure in this matter. To illustrate, a letter dated March 3, 1992 sent by Special County Counsel O'Connor to Linda B. Kenney, Coleman's attorney, contains the following admission in the opening sentence: "As you know, I represent Monmouth County in the abovecaptioned matter." App. at 148 (emphasis added). In addition, Special Counsel O'Connor noted in a letter memorandum to the district court dated January 3, 1991, that "[t]he County of Monmouth shall rely upon the legal arguments and contentions contained in its supporting brief . . . ." Id. at 153 (emphasis added).

In addition to the foregoing, Assistant County Counsel Hrebek filed papers and motions in this action on behalf of Kaye and the Monmouth County Prosecutor's Office. On April 30, 1991, Hrebek applied to the district court for an order granting the Monmouth County Prosecutor's Office a thirty-day extension to file an answer or a responsive pleading. This letter listed Hrebek as the "Attorney for Defendants." Id. at 611. The district court granted Hrebek's motion. Moreover, on May 28, 1991, Hrebek received an additional fifteen-day extension to file an answer on behalf of Kaye and the Monmouth County Prosecutor's Office. Assistant County Counsel Hrebek did not interpose the defense of lack of personal jurisdiction with respect to the County of Monmouth in any one these responsive pleadings.

Finally, on May 24, 1991, Gerald Dorf, Esq., entered an appearance on behalf of John Kaye "as an individual." Id. at 609. Dorf was retained by Kaye with Monmouth County funds. Given the County's pervasive involvement in the litigation of this matter and the County Counsel's Office's open acknowledgement that it was representing the County's interests, which by all appearances were indistinguishable from those of the Monmouth County Prosecutor's Office, we conclude that Monmouth County's defense of lack of personal jurisdiction had effectively been waived long before the County, seemingly as an afterthought, filed its posttrial motion to vacate on jurisdictional grounds. We therefore hold that the County of Monmouth was properly before the district court as a party.

B.

The County of Monmouth also contends that it cannot be held accountable for Prosecutor Kaye's actions because he is a state official over whom the County exercises no control. The district court agreed, concluding that Prosecutor Kaye was controlled by the New Jersey State Attorney General. This is an issue of first impression, as the New Jersey Supreme Court has yet to address the specific issue of whether a ...


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