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Davidson v. Roselle Park Soccer Federation

December 4, 1996

DIANE DAVIDSON, GUARDIAN AD LITEM FOR INFANT PLAINTIFF EILEEN DAVIDSON, PLAINTIFF
v.
ROSELLE PARK SOCCER FEDERATION, PHILLIP ACOSTA, ALVARO BERGES, PETER STRAHAN, FRANK TERPENNING, AND MILT WOODRUFF, DEFENDANTS.



Kentz, Jr., J.s.c. (retired and temporarily assigned on recall).

The opinion of the court was delivered by: Kentz

Civil Action

KENTZ, JR., J.S.C. retired and temporarily assigned on recall)

This matter comes before the Court on plaintiff's motion for attorneys fees and costs. By way of background, this case originated from plaintiff's Order to Show Cause with Temporary Restraints, filed on June 5, 1996, seeking to enjoin defendants *fn1 from blocking Eileen Davidson's (hereinafter "Eileen") participation in the soccer try-outs for the "boys traveling team."

The facts may be summarized as follows:

The infant plaintiff, Eileen, is eleven years old (her mother and guardian, Diane Davidson, is the named plaintiff in this action). Eileen had been playing on the "traveling team" of the Roselle Park Soccer Federation (hereinafter the "Federation") for the past four years. She was required to try out every year and each year she made the team based on her abilities.

On May 23, 1996, the voting board members of the Federation voted to restrict the "traveling team" to boys only. A "girls traveling team" had been in existence for two years, although Eileen had never been forced off the "traveling team" and onto the "girls traveling team."

On June 5, 1996, plaintiff filed the aforesaid Order to Show Cause with Temporary Restraints seeking to temporarily restrain defendants from prohibiting Eileen's participation in the soccer try-outs for the "boys traveling team" scheduled for the evening of June 5, 1996. This Court granted plaintiff's application and subsequently Eileen tried out for the team of her choice.

On the Return Date of the Order to Show Cause, all parties agreed that until a decision was made as to whether Eileen had made the team, this Court had no issue to decide. The parties later reported that Eileen had made the team. Therefore, on June 17, 1996, this Court ruled that the action had become moot. This ruling was not challenged.

Plaintiff now seeks attorneys fees and costs. Whether plaintiff is entitled to such an award is the only issue now before the Court.

It appears from the undisputed record that the individual named defendants are volunteers of the Federation. N.J.S.A. 2A:64-1 to -6 governs actions by and against unincorporated associations, such as the Roselle Park Soccer Federation. As the group does not appear to be organized for a pecuniary purpose it cannot be sued. See N.J.S.A. 2A:64-6. Thus, the Federation cannot be liable for plaintiff's attorneys fees and costs.

Since the Federation is not amenable to suit the members of the association are individually liable for the debts of the association. See, e.g., Bango v. Ward, 12 N.J. 415, 97 A.2d 147 (1953) (holding that an action against an unincorporated association is in reality an action against the membership); Marchitto v. Central R. Co. of New Jersey, 9 N.J. 456, 88 A.2d 851 (1952) (holding that a suit against an unincorporated association is a suit against the principals). The named defendants are being sued as principals of the unincorporated association, not as employees, and thus, are individually liable. See N.J.S.A. 2A:64-5.

N.J.S.A. 10:5-27.1 authorizes state and federal courts to award reasonable attorneys fees to the prevailing party in suits brought under the Law Against Discrimination (hereinafter, the "LAD"). As N.J.S.A. 10:5-27.1 was enacted relatively recently, see L.1979, c. 404, §§ 6, there is little caselaw interpreting its provisions in comparison to the vast body of caselaw interpreting the analogous federal provision, 42 U.S.C.A. § 1988. Since the New Jersey courts have not substantively addressed this question, plaintiff looks to federal law to support her contention that as the prevailing party she should be entitled to attorneys fees and costs.

In order to be awarded reasonable attorneys fees a plaintiff must show that he/she is the prevailing party. In order to be considered a prevailing party a plaintiff must demonstrate: (1) success on a significant issue which benefits the party bringing suit; (2) a factual causal nexus between plaintiff's litigation and the relief obtained; and (3) that the relief obtained had a basis in law. ...


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