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BOODY v. TOWNSHIP OF CHERRY HILL

December 18, 1997

MICHAEL BOODY, Plaintiff,
v.
TOWNSHIP OF CHERRY HILL, CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS, CHERRY HILL TOWNSHIP POLICE DEPARTMENT, WILLIAM MOFFETT, GEORGE STEIN, LT., EDWARD BORDEN, JOSH OTTENBERG, OFFICE OF THE CAMDEN COUNTY PROSECUTOR, JOHN DOES 1-15 (names being fictitious and unknown), jointly, severally, and individually, Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Currently before the court are a series of motions filed by all parties in this case and arising out of a Complaint filed by plaintiff Michael Boody against defendants Township of Cherry Hill ("Township"), Cherry Hill Police Department ("Police Department"), William Moffett ("Moffett"), the Cherry Hill Chief of Police, and Lt. George Stein ("Stein"), the Cherry Hill Director of Internal Affairs, (collectively, "Cherry Hill Defendants"); Camden County Board of Chosen Freeholders ("County"), Office of the Camden County Prosecutor ("Prosecutor's Office"), Edward Borden ("Borden"), the Camden County Prosecutor, and Josh Ottenberg ("Ottenberg"), an Assistant Camden County Prosecutor, (collectively, "Camden Defendants"); and John Does 1-15 (collectively, "Defendants"). *fn1" All counts of the Complaint but one allege claims under state statutory and common law, including the Conscientious Employee Protection Act (CEPA), the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), intentional infliction of emotional distress, negligent infliction of emotional distress, constructive discharge, conspiracy, harassment, and interference with contract of employment. The sole federal claim, asserted in Count Three of the Complaint solely against the Cherry Hill Defendants, arises under 42 U.S.C. § 1983 and provides this court with jurisdiction. See 28 U.S.C. §§ 1331 and 1367(a). Before the court are various motions and cross motions to dismiss and for summary judgment filed by all defendants and ultimately touching on each of plaintiff's claims. In response to defendants' motions, plaintiff filed two motions to amend the original Complaint. Finally, plaintiff has appealed a discovery Order of Magistrate Judge Robert B. Kugler. The court will consolidate these motions and treat them together in this Opinion. *fn2"

 I. Background

 Plaintiff was a member of the Cherry Hill Police Department between August 1985 and May 18, 1995, when he tendered his resignation. (Pl. Cross-Motion for Summ. J. Reply Mem., Ex. I.) During the course of his employment with the Police Department, plaintiff received numerous commendations for his work. (Pl. Mem. in Opp'n to Camden Defs. 1st Motion for Summ. J., Ex. A.) Plaintiff alleges that while employed at the Police Department, he obtained a bachelor's degree from Rutgers University with a major in computer science. (Compl. at P 14.) He allegedly used his newly acquired knowledge to develop a computer system for the Police Department at the behest of the Department's Chief of Police, defendant William Moffett. (Compl. at P 22.) When plaintiff refused to turn over the "source code" of the system, defendant Moffett allegedly began a campaign to remove plaintiff from the Police Department. (Compl. at P 33.)

 Plaintiff further alleges that Moffett instituted a fraudulent "ticket reward system" in the Police Department, whereby police officers would receive undocumented leave as a reward for issuing a certain number of motor vehicle summonses. (Compl. at P 51.) When plaintiff criticized this scheme, defendant Moffett allegedly responded with additional retaliatory actions against plaintiff. (Compl. at P 71.)

 Moffett's retaliation allegedly intensified after an event involving plaintiff that occurred on January 25, 1995, while plaintiff was off-duty. On that date, plaintiff and an acquaintance, William Mitchell, lured Charles Zanetich to Mitchell's home. (Pl. Mem. in Opp'n to Cherry Hill Defs. 3d Motion for Summ. J., Ex. F, Boody Dep. at 121.) Plaintiff wanted to investigate threats he believed Zanetich had made against his life. (Id. at 121.) When Zanetich arrived, plaintiff and Mitchell frisked him, handcuffed him, placed him on the floor, and bound his ankles with tape. (Id. at 126-33.) Plaintiff never reported his actions to either the Cherry Hill or Gloucester County Police Departments. (Id. at 133-34.) The following day the incident was reported to the Cherry Hill Police Department. (Camden Defs. 1st Motion for Summ. J., Rule 12G Statement at P 3.) *fn3"

 The Police Department and the Prosecutor's Office subsequently commenced investigations of the incident. (Compl. at PP 88-92.) Plaintiff was represented by an attorney during these investigations. (Pl. Mem. in Opp'n to Cherry Hill Defs. 2d Motion for Summ. J., Ex. A, Boody Cert. at P 2.) On the advice of his attorney, plaintiff resigned from his position at the Police Department on May 11, 1995. (Boody Dep. at 177-78.) The resignation agreement provided that in exchange for 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), *fn4" 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) *fn5" , 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.

 II. Discussion

 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.

 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.

 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 ...


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