resigning and agreeing to testify truthfully before the grand jury investigating the Zanetich incident, plaintiff would not be subject to criminal prosecution for his involvement. (Pl. Mem. in Opp'n to Cherry Hill Defs. 3d Motion for Summ. J., Ex. M.) Plaintiff subsequently testified before a grand jury regarding Mitchell's involvement in the incident. (Camden Defs. 1st Motion for Summ. J., Rule 12G Statement at P 10.) Plaintiff was never indicted by the grand jury for his own involvement. (Id. at P 12.) Plaintiff alleges that both the Cherry Hill and Camden Defendants investigated his involvement in the incident solely to retaliate against him and to force his resignation. (Compl. at PP 90, 107, 111.)
Plaintiff filed this Complaint on October 30, 1996. Each of the claims asserted by plaintiff is based on the alleged retaliatory conduct of the defendants. Counts One through Four assert claims against Moffett, Police Department, and Township under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. (West 1988 & Supp. 1997), N.J.S.A. 40A:14-147 (West 1993 & Supp. 1997),
42 U.S.C. § 1983, and the New Jersey Racketeer Influenced and Corrupt Organizations Act (New Jersey RICO), N.J.S.A. 2C:41-2 (West 1995)
, respectively. Additionally, plaintiff asserts the following common law claims: intentional infliction of emotional distress against Moffett, Borden, and Ottenberg (Count Five); negligent infliction of emotional distress against Moffett, Borden, Ottenberg, Prosecutor's Office, and County (Count Six); constructive discharge against Moffett (Count Seven); conspiracy against Moffett, Borden, Police Department, and Does 1-15 (Count Eight); harassment against Moffett and Does 1-15 (Count Nine); and interference with contract of employment against the Camden Defendants (Count Ten). In Count Eleven, plaintiff alleges that the actions of the individual defendants were all done within the scope of their employment and that their employers, Police Department, Township, Prosecutor's Office, and County, are strictly liable for their conduct.
The Camden Defendants have submitted two motions for summary judgment, the Cherry Hill Defendants three. In response, plaintiff has filed two motions to amend the Complaint and has also appealed the discovery Order of Magistrate Judge Robert B. Kugler dated September 12, 1997. The court will decide each of these motions and plaintiff's appeal together in this Opinion.
A. Summary Judgment Standard
A court may grant summary judgment 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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). 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." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("The nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.
Celotex, 477 U.S. at 322-323. In such situations, "the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. 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.
B. The Cherry Hill Defendants
1. The CEPA Claim
In Count One of the Complaint, plaintiff asserts a claim under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et seq. (Compl. at P 72.) Specifically, plaintiff alleges that Moffett, Police Department, and Township retaliated against him for being an outspoken critic of the allegedly fraudulent "ticket reward system." (Id.) The Cherry Hill Defendants have moved for summary judgment on plaintiff's CEPA claim on the ground that it was filed beyond the one year statute of limitations that applies to CEPA claims. N.J.S.A. 34:19-5 (West 1988 & Supp. 1997); Young v. Schering Corp., 275 N.J. Super. 221, 229, 645 A.2d 1238 (App. Div. 1994), aff'd on other grounds, 141 N.J. 16, 660 A.2d 1153 (1995); Lynch v. New Deal Delivery Service Inc., 974 F. Supp. 441, 455 (D.N.J. 1997). The Cherry Hill Defendants argue that plaintiff's CEPA claim could have accrued no later than May 11, 1995, when he tendered his resignation, and that plaintiff did not file the Complaint until October 30, 1996, more than one year later.
Plaintiff makes three arguments as to why his claim is not time-barred, none of which has merit. First, plaintiff argues that the doctrine of equitable estoppel prevents the Cherry Hill Defendants from raising the statute of limitations defense. (Pl. Mem. in Opp'n to Cherry Hill Defs. 2d Motion for Summ. J. at 4.) Plaintiff contends that the doctrine applies here because the Cherry Hill Defendants misled him concerning the cause of action. Plaintiff offers no support for this argument except to state that his lawyer at the time of his resignation misled him as to the impact that his resignation would have on his ability to secure other employment. (Id.) Plaintiff's relationship with his attorney has no relevance to his argument that the Cherry Hill Defendants misled him, and plaintiff has therefore failed to establish the applicability of the doctrine of equitable estoppel.
Second, plaintiff asserts that representations made by the Cherry Hill Defendants to plaintiff's prospective employers after he resigned from the Police Department constitute continuing violations of CEPA and toll the statute of limitations. (Id. at 6.) Plaintiff did not allege such a continuing violation in the Complaint and has himself stated, "Every claim for relief asserted in the Complaint is based upon the same transaction, i.e., the events leading up to the termination of Officer Boody's employment." (1st Motion to Amend the Compl. at 2.) In any event, the court need not address this argument, for the New Jersey Supreme Court has made clear that representations to prospective employers cannot constitute a CEPA violation. Young v. Schering Corp., 141 N.J. 16, 32, 660 A.2d 1153 (1995).
Plaintiff finally argues that the Cherry Hill Defendants waived the statute of limitations defense by not pleading it in their answer. (Pl. Mem. in Opp'n at 10.) Plaintiff has apparently not read the Cherry Hill Defendants' Answer, attached to his own opposition memorandum, which clearly indicates that the CEPA statute of limitations was raised as a separate defense. (Id., Ex. E at 11.) Plaintiff's CEPA claim is therefore time-barred, and the Cherry Hill Defendants are entitled to judgment as a matter of law on Count One of the Complaint.
2. Remaining State Law Claims
The Cherry Hill Defendants have also moved to dismiss plaintiff's remaining state law claims on the ground that these claims are barred by the CEPA waiver provision, which provides:
Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State Law, rule or regulation or under the common law.