In the time period following Fioriglio's placement on the promotion list, those individuals ranked higher than Fioriglio and one of the individuals tied with him were promoted to battalion chief. By April 26, 1993, Fioriglio was in a three-way tie at the top of the promotion list. In February 1994, Fioriglio announced that he was running for Mayor of Atlantic City, a position held by James Whelan. In an election held on May 12, 1994, Whelan defeated Fioriglio and other opponents by a significant margin.
In New Jersey, an appointing authority is given broad discretion to choose among the top three individuals on an eligibility list when making a promotion. See N.J.S.A. § 11A:4-8 (authorizing certification of three eligibles); N.J.A.C. § 4A:4-4.2(c)(2) (same); N.J.A.C. § 4A:4-4.8(a)(3) (allowing appointment of one of the top three eligibles). Pursuant to this so-called "Rule of Three," Mayor James Whelan, on December 1, 1994, promoted to battalion chief the two individuals on the promotion list with whom Fioriglio was then tied. As a result, Fioriglio was never promoted.
On January 17, 1995, Fioriglio filed a complaint with the NJDOP and the Public Employment Relations Commission ("PERC") alleging that the City's refusal to promote him was the result of "discriminatory and retaliatory motives." By decision dated June 26, 1995, the PERC refused to issue a complaint because they did not have the statutory authority to address Fioriglio's grievances. On February 13, 1996, the NJDOP found that the initial determination of the appointing authority was correct and decided not to take action on Fioriglio's administrative complaint. On April 14, 1996, Fioriglio filed an appeal of the NJDOP's decision with the Division of Merit System Practices and Labor Relations. That appeal is still pending.
On July 19, 1995, Fioriglio instituted his racial discrimination suit in the U.S. District Court against the NJDOP and several individual state government officials. In his complaint, Fioriglio alleged various civil rights violations arising from the state's adjustment of the examination scores in conjunction with the consent order and his subsequent inability to earn the promotion to battalion chief. Fioriglio alleged that the state's actions to comply with the consent decree had discriminated against him based on his race. He filed an amended complaint in that matter on September 15, 1995. As amended, Fioriglio's racial discrimination complaint alleged violations of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, the New Jersey Constitution, the New Jersey Law Against Discrimination ("N.J.L.A.D."), N.J.S.A. §§ 10:5-1 to 5-42, and common law tort principles.
Fioriglio initiated the present action on May 9, 1996 (the "retaliation suit"). In this complaint, Fioriglio alleged that several City officials including Mayor James Whelan, City Solicitor Paul Gallagher, Fire Chief Benjamin Brenner, and Fire Department supervisors Terrence Mooney and Dennis Brooks conspired against him in violation of his free speech rights under the federal and state constitutions. In particular, Fioriglio alleged that the defendants denied him a promotion to battalion chief in retaliation for his mayoral campaign against James Whelan. Fioriglio also asserted claims for defamation and tortious interference with business activities as well as claims pursuant to the N.J.L.A.D. and the New Jersey Conscientious Employee Protection Act ("C.E.P.A."), N.J.S.A. §§ 34:19-1 to 19-8.
In connection with discovery in the racial discrimination suit, the defendants in that suit deposed Fioriglio on July 16, 1996. Fioriglio indicated at his deposition that the reason he was not promoted was because he ran for mayor against James Whelan. Furthermore, at oral argument during the racial discrimination suit, Fioriglio stated in open court, "I ran for mayor against the Mayor and they didn't promote me because I ran for mayor." Fioriglio v. New Jersey Dep't of Personnel, 1996 U.S. Dist. LEXIS 15399, No. 95-3422, 1996 WL 599400 n.6 (D.N.J. Oct. 15, 1996) (Irenas, J.). Fioriglio also stated that so long as James Whelan is Atlantic City's mayor, "there won't be no promotion." Id. On October 15, 1996, the District Court dismissed Fioriglio's complaint in the racial discrimination suit on the merits. The defendants in the present action have now moved to dismiss Fioriglio's complaint. Although Fioriglio failed to join the present claims and defendants in his racial discrimination suit, the Court finds his present action not barred by New Jersey's entire controversy doctrine.
A. Entire Controversy Doctrine--Racial Discrimination Suit
New Jersey's entire controversy doctrine "encompasses a mandatory rule for the joinder of virtually all causes, claims, and defenses relating to a controversy between the parties engaged in litigation." Cogdell v. Hospital Ctr. at Orange, 116 N.J. 7, 16, 560 A.2d 1169 (1989). The entire controversy doctrine requires that whenever possible, "the adjudication of a legal controversy should occur in one litigation in only one court." Id. at 15. The doctrine dictates that a party must assert all affirmative claims he or she has against another party including counterclaims and cross-claims. See Circle Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280, 289, 662 A.2d 509 (1995); Ajamian v. Schlanger, 14 N.J. 483, 487-89, 103 A.2d 9, cert. denied, 348 U.S. 835, 99 L. Ed. 659, 75 S. Ct. 58 (1954). In addition, a party must join "all parties with a material interest in the controversy, i.e., those who can affect or be affected by the judicial outcome of the controversy." Circle Chevrolet, 142 N.J. at 289; Cogdell, 116 N.J. 7 at 23, 26, 560 A.2d 1169. However,
the entire controversy doctrine does not require that all claims and parties proceed to culmination in one litigation. Rather, all claims and parties must initially be joined together before one court. The Court can determine for itself how best to proceed with the various claims and parties. In order to exercise this discretion, however, the court must be fully informed of the extent of the controversy before it.
Petrocelli v. Daniel Woodhead Co., 993 F.2d 27, 31 (3d Cir. 1993). New Jersey Court Rule 4:30A sets forth the penalty for failing to comply with the requirements of the entire controversy doctrine. The Rule states: "Non-joinder of claims or parties required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine." R. 4:30A.
The goals of the entire controversy doctrine are threefold: "(1) to encourage the comprehensive and conclusive determination of a legal controversy; (2) to achieve party fairness, including both parties before the court as well as prospective parties; and (3) to promote judicial economy and fairness by avoiding fragmented multiple and duplicative litigation." Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 322, 662 A.2d 523, 529 (1995) (citations omitted). However, it should be noted that the entire controversy doctrine is limited in certain respects. The doctrine only bars claims of which the plaintiff was or should have been aware at the time of the prior litigation, see Circle Chevrolet, 142 N.J. at 294, and which arise from "related facts or the same transaction or series of transactions." DiTrolio v. Antiles, 142 N.J. 253, 267, 662 A.2d 494 (1995). Moreover, because the entire controversy doctrine is equitable in nature, it is not applied where "joinder would result in significant unfairness to the litigants or jeopardy to a clear presentation of the issues and a just result," Mystic Isle, 142 N.J. at 323, 662 A.2d at 529, or where "the first proceeding occurred before a lesser tribunal." Petrocelli, 993 F.2d at 29.
Defendants assert that Fioriglio's current action is barred by New Jersey's entire controversy doctrine. They allege that Fioriglio was aware of the present cause of action prior to his institution of the racial discrimination suit. Therefore, defendants assert, Fioriglio was required to join the present claims and defendants to that previous action because both actions arose from Fioriglio's attempt to be promoted to battalion chief. Fioriglio maintains that he was not required to join the discrimination and the retaliation suits because the two actions arose from different circumstances at different times and present different claims against different defendants. Indeed, Fioriglio's first action challenged the procedure by which the NJDOP rescored the fire chief examination and sought to place him at the top of the eligibility list. In contrast, the second action challenged City officials failure to promote Fioriglio once he had risen to the top of the eligibility list--in effect, after time had corrected the wrong on which he based his first action.
The differences between Fioriglio's two federal actions make a colorable argument for allowing his retaliation suit to proceed despite the entire controversy doctrine. The nature of the wrongs alleged, the defendants alleged to have committed them, and the timing of the alleged wrongs all differ as between the two actions. Yet, had Fioriglio joined his claims together while both actions were pending, it would furthered the goals of the entire controversy doctrine--encouraging the final resolution of his disputes, promoting judicial efficiency, and achieving a greater party fairness. Although the result is far from clear, the Court will assume for the purposes of this motion that a New Jersey state court would preclude Fioriglio's instant action under the entire controversy doctrine. Nevertheless, this assumption does not resolve the issue of whether this Court should apply the entire controversy doctrine to bar Fioriglio's retaliation suit.
Whether considered a procedural rule of joinder, or a substantive rule of preclusion (or both), the entire controversy doctrine is a New Jersey rule, not a federal one. As noted in MortgageLinq and in State v. Minter, 116 N.J. 269, 561 A.2d 570 (1989), "the federal courts are considered those of another sovereign." Minter, 116 N.J. at 279, 561 A.2d at 575. Application of entire controversy doctrine presupposes two litigations in which the failure to join claims or parties in the first forum bars the subsequent pursuit of those claims or parties in the second and later forum. Where the first forum is a New Jersey state court, applying the entire controversy doctrine where the second forum is a federal court or the court of another state presents no conceptual problem, a least after the first forum has rendered its judgment. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires a federal court to give a New Jersey judgment the same preclusive effect New Jersey would give it. See Rycoline, F.3d at , 1997 WL 142106, at *5; Peduto v. City of North Wildwood, 878 F.2d 725, 728 (3d Cir. 1989).
Where the first forum's judgment is rendered by a non-New Jersey court which does not have an entire controversy doctrine, the doctrine's application is murkier, since the second forum would be asked to bar claims based on a judgment which would not bar those very same claims were they thereafter asserted in the first forum itself. In MortgageLinq, the New Jersey Supreme Court nevertheless held,
When a party deliberately chooses to fragment litigation by suing certain parties in another jurisdiction and withholds claims against other parties, a New Jersey Court need not later entertain the claims against the omitted parties if jurisdiction was available in the first forum.