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May 6, 1997

KIM D. FIORIGLIO, Plaintiff,

The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This matter involves claims brought by firefighter Kim Fioriglio ("Fioriglio") against the City of Atlantic City ("City"), the City's Mayor, James Whelan, and several City officials following the City's decision not to promote Fioriglio to the position of battalion chief. Fioriglio maintains that the decision to not promote him was the result of a conspiracy among the defendants to punish him for running against James Whelan in the 1994 mayoral election. Fioriglio previously filed a federal suit against the New Jersey Department of Personnel ("NJDOP") and several state officials in which he alleged civil rights violations arising from the state's promotion testing procedures and the City's failure to promote him (the "racial discrimination suit"). This Court dismissed the racial discrimination suit on October 15, 1996. Fioriglio never attempted to join the current claims and defendants in the racial discrimination suit.

 Defendants now move to dismiss plaintiff's complaint as barred by New Jersey's entire controversy doctrine. Defendants also move to dismiss portions of plaintiff's complaint for failure to state claims upon which relief can be granted. Because New Jersey's entire controversy doctrine does not attach to this Court's prior federal judgment or Fioriglio's state administrative proceedings, the Court will deny defendants' motions to dismiss under the entire controversy doctrine. Because Fioriglio's defamation count was brought outside the statute of limitations and because his N.J.L.A.D. count fails to state a claim upon which relief can be granted, the Court will grant defendants' motions in part.


 Kim Fioriglio's claims in the present action, as well as his claims in the racial discrimination suit, arise from his inability to achieve a promotion to the rank of battalion chief in the Atlantic City Fire Department. In order to be eligible for that promotion, Fioriglio took the battalion fire chief examination administered by the NJDOP. The examination consisted of a written section and an oral section. Fioriglio completed the written portion of the examination on September 22, 1990 and completed the oral portion on November 21, 1991. On February 6, 1992, the exam results were posted and Fioriglio was ranked number one on the eligibility list from which promotions to battalion chief are made.

 On February 18, 1992, Fioriglio received notice that the NJDOP and U.S. Department of Justice had decided to re-score the examination pursuant to a 1977 consent decree which was issued in response to allegations of racial discrimination in the hiring and promotion of minority firefighters. The consent decree required the NJDOP to conduct job analysis of the firefighter promotional titles and to establish examination and promotion procedures in a manner consistent with the consent decree. Prior to the re-scoring, the written component of the examination had been worth 40% of the total evaluation. After the re-scoring, the written component was scored on a pass-fail basis. As a result, Fioriglio dropped from number one on the eligibility list to number twelve. Fioriglio subsequently filed administrative appeals to increase his score. After these appeals, Fioriglio moved from number twelve on the eligibility list up to a four-way tie for sixth.

 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 ...

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