The opinion of the court was delivered by: Hon. Stephen M. Orlofsky, Unites States District Court Judge.
The pending motions before this Court require the consideration and
resolution of several novel questions of law. First, the Court must
decide whether the Defendant/Third-party Plaintiff, Adamar of New
Jersey, d/b/a Tropicana Casino and Resort ("Tropicana"), has a right,
either under federal common law or by statute, specifically,
42 U.S.C. § 1988, to seek contribution and indemnification from the
State of New Jersey for any attorneys' fees ultimately awarded to the
Plaintiff against the Defendant/Third-Party Plaintiff. Second, this Court
must decide whether the Eleventh Amendment bars the Plaintiff's and
Third-Party Plaintiff's claims, asserted under the New Jersey Law Against
Discrimination ("NJLAD") against the State of New Jersey, to the extent
that these claims are alleged against the State not in its capacity as an
employer, for which it has clearly waived its sovereign immunity under
the NJLAD, but in its legislative and executive capacities. Finally, this
Court must determine whether the New Jersey Casino Control Commission is
the alter-ego of the State of New Jersey and is therefore entitled to
Eleventh Amendment immunity.
For the reasons set forth in this Opinion, I conclude that Tropicana
has neither a statutory, nor a common-law right to seek contribution or
indemnification from the State for Plaintiff's attorneys' fees. I further
conclude that while the State of New Jersey has waived its sovereign
immunity to be sued under the NJLAD, it has done so only in its capacity
as an employer. Accordingly, I conclude that the State of New Jersey
enjoys Eleventh Amendment immunity against suit in federal court under
the NJLAD when the State is sued in its legislative and executive
capacities. Finally, I conclude that the New Jersey Casino Control
Commission is an alter ego of the State of New Jersey and is therefore
entitled to Eleventh Amendment immunity.
On January 12, 2000, Plaintiff, John D. Rudolph ("Rudolph"), filed a
with this Court against his former employer, Adamar of New
Jersey, Inc., which does business as Tropicana Casino and Resort
("Tropicana"). Rudolph, who is a white male, alleges that Tropicana,
through the implementation of its Equal Employment and Business
Opportunity Plan ("EEBOP")*fn1, discriminated against him and all
similarly situated individuals on the basis of race and sex, in violation
of 42 U.S.C. § 1981 (Count I) and the NJLAD. (Count II). In addition
to these class claims, Rudolph, who is fifty years old, alleges an
individual claim for discrimination on the basis of age, in violation of
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
et seq. (Count III) and the NJLAD (Count IV).
On February 25, 2000, Tropicana filed a Third-Party Complaint against
the State of New Jersey, the Governor of the State of New Jersey, now
Acting Governor Donald T. DiFrancesco ("the Governor"), and John J.
Farmer, Jr., the Attorney General of the State of New Jersey ("the
Attorney General") (together, "the State Defendants"). Both the Governor
and the Attorney General were named in their official capacities.
Tropicana also named as a Third-Party Defendant James R. Hurley
("Hurley"), in his official capacity as Chairperson of the New Jersey
Casino Control Commission ("CCC"). The CCC was created pursuant to the
New Jersey Casino Control Act ("the Act"), N.J.S.A. § 5:12-1 et seq.
The Act, which took effect on June 2, 1977, legalized casino gambling in
Atlantic City, New Jersey. Id. The Commission has promulgated regulations
which, inter alia, require each casino licensee to adopt an approved
affirmative action plan, the EEBOP. N.J.A.C. § 19:53-6.1.
Tropicana filed the Third-Party Complaint against the State and NJCCC
Defendants because it alleges that "to the extent that any portion of
[Tropicana's] EEBOP contained or caused affirmative action that was in
any way unlawful, such action was instituted solely because it was
required by the [New Jersey Casino Control] Act and its implementing
regulations." State's Br. at 2. Specifically, Tropicana alleges that the
portions of the New Jersey Casino Control Act and its implementing
regulations, which require casinos to develop and implement EEBOPs,
violate 42 U.S.C. § 1981 (Count I), 42 U.S.C. § 1983, the United
States Constitution, and the New Jersey Constitution (Count II), and the
New Jersey Law Against Discrimination (Count III). With respect to Counts
I, II, and III, Tropicana seeks declaratory and injunctive relief,
reimbursement of reasonable attorneys' fees, and reimbursement for all
equitable relief, including damages and attorneys' fees, obtained against
Tropicana by Plaintiff or the plaintiff class. Tropicana also alleges, in
Count IV, a claim for common law indemnification and for contribution
pursuant to the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A.
§ 2A:53A-1 et seq.
On March 15, 2000, Plaintiff filed claims against the Third-Party
Defendants pursuant to Federal Rule of Civil Procedure 14(a).*fn2
Plaintiff's Rule 14(a) Complaint alleges that Tropicana's state-mandated
EEBOP caused the alleged violations of Plaintiff's rights under
42 U.S.C. § 1981 (Count I), § 1983 (Count II), the NJLAD (Count
III), and the New Jersey Constitution (Count IV). Plaintiff seeks
declaratory and injunctive relief, compensatory and punitive damages, and
costs and fees.
Two motions are now before the Court. First, the State Defendants have
moved to dismiss all claims against them pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), except the Plaintiff's and
Third-Party Plaintiff's claims against the Governor and the Attorney
General which seek prospective, injunctive relief under federal law.
Second, Commissioner Hurley has moved to dismiss all claims brought
against him in his official capacity on the ground that the NJCCC is an
arm of the State of New Jersey and is therefore entitled to Eleventh
I shall grant the State Defendants' unopposed motion to dismiss all
claims against the State of New Jersey on the grounds of Eleventh
Amendment immunity. Additionally, for the reason set forth below, I shall
grant the State Defendants' motion to dismiss Tropicana's claims for
contribution, indemnification, or statutory entitlement pursuant to
42 U.S.C. § 1988, for Plaintiff's attorneys' fees which may be
assessed against Tropicana if Plaintiff prevails against Tropicana in the
underlying litigation. Furthermore, I shall grant the State Defendants'
motion to dismiss Plaintiff's and Tropicana's claims against the State
Defendants for damages under the NJLAD.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331*fn3
IV. LEGAL STANDARDS GOVERNING MOTIONS TO DISMISS
Federal Rule of Civil Procedure 12(b)(1) governs a district court's
ability to dismiss a claim for lack of subject matter jurisdiction. Kehr
Packages, Inc. v. Fudelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991),
cert. denied, 501 U.S. 1222 (1991). "When the subject matter jurisdiction
of the court is challenged, the party that invokes the court's
jurisdiction bears the burden of persuasion." Lumbermans Mutual Casualty
Co. v. Fishman, 1999 WL 744016 at *3 (E.D.Pa. 1999) (citing Kehr
Packages, Inc., 926 F.2d at 1409).
Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for
failure to state a claim upon which relief may be granted. "In
considering a Rule 12(b)(6) motion, the Court may dismiss a complaint if
it appears certain the plaintiff cannot prove any set of facts in support
of its claims which would entitle it to relief." Mruz v. Caring, Inc.,
39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky J.) (citing Rasom v.
Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all well-pled
allegations are accepted as true and reasonable inferences are drawn in
the plaintiff's favor, the Court may dismiss a complaint where, under any
set of facts which could be shown to be consistent with a complaint, the
plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo,
446 U.S. 635, 636 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d
Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990)); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Finally,
Rule 12(b)(6) authorizes a court to dismiss a claim on a dispositive
issue of law. Mruz, 39 F. Supp.2d at 500 (citing Neitzke v. Williams,
490 U.S. 319, 326-2 (1989)).
With these legal standards in mind, I shall examine first the State
Defendants' motion to dismiss, and then Commissioner Hurley's motion.
V. CLAIMS AGAINST THE STATE DEFENDANTS
A. Eleventh Amendment Immunity
The Eleventh Amendment provides that "[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const., Amdt. XI. The Eleventh Amendment operates as a
limitation on the
subject matter jurisdiction which may be exercised by
federal courts. See Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 119-20 (1984). Specifically, the Eleventh Amendment has been
interpreted to bar suits against any state in federal court by that
state's own citizens as well as suits by citizens of other states. See
Edelman v. Jordan, 415 U.S. 651 (1974); Hans v. Louisiana, 134 U.S. 1, 15
The Supreme Court addressed the application of Eleventh Amendment
immunity to suits brought against state officials under
42 U.S.C. § 1983 in Will v. Michigan Dep't of State Police, 491 U.S. 58
(1989). In Will, the Court held that "neither a State nor its officials
acting in their official capacities are `persons' under § 1983," and
that therefore, such defendants are immune from suit under § 1983.
Will, 492 U.S. at 71. The Supreme Court, however, recognized an exception
to its holding in Will: "Of course a state official in his or her
official capacity, when sued for injunctive relief, would be a person
under § 1983 because `official-capacity actions for prospective
relief are not treated as actions against the State.'" Id. at n. 10
(citing, inter alia, Ex Parte Young, 209 U.S. 123, 159-60 (1908)). Citing
Will, the Third Circuit has explained this distinction as follows:
When state officials are sued in their official
capacities for damages, that suit is treated as one
against the state and the official is not considered
to be a "person." Hence, § 1983 cannot be invoked
. . . . A suit for damages must be contrasted with a
suit for equitable relief. The Supreme Court has held
that a state official sued for injunctive relief is a
"person" under § 1983, because an action for
prospective relief is not treated as an action against
Powell v. Ridge, 189 F.3d 387, 401 (3d Cir. 1999), cert. denied sub
nom., 528 U.S. 1046 (1999).
Both the Plaintiff and the Third-Party Plaintiff have asserted claims
based on federal and New Jersey state law against the State Defendants.
With respect to the claims asserted by both parties, the State Defendants
argue that they are entitled to Eleventh Amendment immunity and therefore
to the dismissal of all claims against them, with the exception of the
federal claims brought against the Governor and the Attorney General, in
their official capacities, for prospective injunctive relief.*fn5
Because the State Defendants' motion to dismiss all federal claims
brought by Tropicana and the Plaintiff against the State of New Jersey is
effectively unopposed, I shall grant this part of the State Defendants'
motion. Accordingly, Counts I and II of the Third-Party Complaint, and
Counts I and II of the Plaintiff's Rule 14(a) claim, shall be dismissed
with respect to the State of New Jersey.
The State Defendants have not moved to dismiss Tropicana's claims
against the Governor and Attorney General for prospective injunctive
relief under federal law. See Notice of Motion, May 26, 2000.
Furthermore, the Plaintiff has cured, through the filing of an amended
complaint and affidavit, the standing defect upon which the State
Defendants based their motion to dismiss Plaintiff's request for
prospective, injunctive relief. See Second Amd. Compl., Rudolph Aff.
Accordingly, both the Plaintiff and Tropicana are entitled to proceed
with the portions of Counts I and II of their respect complaints, which
request prospective, injunctive relief under federal law.
The State Defendants do not contest Tropicana's right to seek
reasonable attorneys' fees, pursuant to 42. U.S.C. § 1988, in the
event Tropicana succeeds on its claim for prospective, injunctive relief
against the State Defendants. State Defs.' Reply Br. at 7. Accordingly,
Tropicana may also proceed with Counts I and II of the Third Party
Complaint as to an award of reasonable attorneys' fees, should Tropicana
prevail in its suit against the State Defendants, pursuant to
42 U.S.C. § 1988.
Finally, I note that the State Defendants argue that they are entitled
to qualified immunity against Tropicana's and the Plaintiff's claims for
damages. Qualified immunity, however, is a defense which may be properly
asserted only by a state official sued in his or her personal or
individual, as opposed to official, capacity. In a case in which it
observed that the distinction between personal-and official-capacity
action suits "apparently continues to confuse lawyers and confound lower
courts," the Supreme Court explained the distinction as follows:
When it comes to defenses to liability, an official in
a personal capacity action may, depending on his
position, be able to assert personal immunity
defenses, such as objective reasonable reliance on
existing law. See Imbler v. Pachtman, 424 U.S. 409
(1976) (absolute immunity); Pierson v. Ray, 386 U.S. 547
(1967) (same), Harlow v. Fitzgerald, 457 U.S. 800
(1982) (qualified immunity), Wood v. Strickland,
420 U.S. 308 (1980) (same). The only immunities that
can be claimed in an official-capacity action are
forms of sovereign immunity that the entity, qua
entity, may possess, such
as the Eleventh Amendment.
While not exhaustive, this list illustrates the basic
distinction between personal — and official — capacity
Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). Both the Plaintiff and
the Third-Party Plaintiff in this case brought their complaints against
the Governor, now Acting Governor Donald T. DiFrancesco, and the Attorney
General, John J. Farmer, Jr., Esq., in their official capacities only.
See Third Party Complaint (naming as defendants "Christine Todd Whitman,
in her official capacity of Governor of the State of New Jersey; John J.
Farmer, Jr., in his official capacity as Attorney General of the State of
New Jersey"); Plaintiff's Rule 14(a) Complaint (same). Based upon the
Supreme Court's holding in Kentucky v. Graham, then, the only applicable
immunity which must be addressed by this Court is the availability of
Eleventh Amendment immunity. The question of whether the Defendants are
entitled to assert qualified immunity is not presented and need not be
addressed by this Court.
To summarize, there are two questions this Court must address to
resolve the State Defendants' pending motion. The first is whether
Tropicana, to the extent that it seeks to recover Plaintiff's attorneys'
fees awarded against it, under either § 1988 or common law, has
failed to state a claim upon which relief may be granted pursuant to
Fed.R.Civ.P. 12(b)(6). The second is whether this Court has subject
matter jurisdiction over Tropicana's and the ...