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BILBILI v. KLEIN

June 14, 2005.

ERVIN BILBILI, et al., Plaintiffs,
v.
CHARLES E. KLEIN, III, et al., Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

This matter arises from a fatal automobile collision between Plaintiffs and an off-duty police officer, Defendant Charles E. Klein, III, who, at the time of the accident, was allegedly intoxicated. Before the Court are the motions for summary judgment by Defendants City of Egg Harbor City, the Egg Harbor City Police Department, and Mayor James E. McGeary (collectively "Municipal Defendants") [Docket Item 74,] Defendant Richard Jankowski, Director of Public Safety for Egg Harbor City from 1996 to 2001*fn1 [Docket Item 75,] and Defendant Patrolman Keron Kevin Derod Craig. [Docket Item 73.]

  For the reasons now explained, the motions for summary judgment will be granted in their entireties and judgment will be entered in favor of these Defendants and against Plaintiffs. I. BACKGROUND

  A. Traffic Stop

  On the night of May 21, 2000, Defendant Patrolman Keron Kevin Derod Craig, a part-time/full-time officer with the Egg Harbor City Police Department, was "out on patrol" alone. (Craig Dep. Tr. at 38, 41.) At approximately 1 a.m., Craig made a routine traffic stop of a car operated and owned by Defendant Charles E. Klein, III, an off-duty police officer with the Egg Harbor City Police Department. (Id. at 46:1-4.) Craig pulled Klein over, without any apparent difficulty on Klein's part, after visually observing his car to be speeding roughly 20 miles per hour over the posted speed limit. Craig did not observe Klein's car to be swerving, and did not believe at the time that Klein was intoxicated. (Id. at 47:19-21.) Plaintiffs allege, however, that Klein was visibly intoxicated.

  As Patrolman Craig pulled over Klein's car, Klein held his police badge out of the window for Craig to see. (Id. at 48:21-49:4) Craig then exited his car and approached Klein's, at which point Klein stuck his head out of the window and said "what's up." (Id. at 49:1-4.) Craig, recognizing the driver to be Klein, issued a verbal warning to slow down and then returned to his patrol car. (Id. at 49:5-8.) During this brief encounter, Craig never got closer than 30 feet to Klein. (Id. at 52:4-5.) Craig testified that he at no point believed that Klein was intoxicated. (Id. at 41:9-12.) Craig testified at his deposition that it would have been "a problem" for him within the department to have issued a ticket to a superior police officer, such as Klein. (Id. at 54:16-20.) According to Patrolman Craig, there was an unwritten understanding in the Egg Harbor City Police Department that professional courtesy would be extended to other officers who were pulled over for minor vehicle violations. (Id. 39:14-40:2.)

  B. Fatal Collision

  About one hour later that same evening, Plaintiffs Freddi Bilbili and Pjerim Gjecaj were passengers in an automobile operated by Gazmend Cena. Freddi Bilbili's brother, Plaintiff Ervin Bilbili, was seated in the passenger seat, (F. Bilbili Dep. Tr. at 23; 2-4,) and Freddi Bilbili was seated in the rear seat along with Mr. Gjecaj. (Id. at 23; 2-4.) Freddi Bilbili was seated directly behind Mr. Cena and Mr. Gjecaj was seated behind the passenger seat. (Id. at 17; 14-15.) At approximately 2:12 a.m., the automobile operated by Mr. Cena was struck from behind by Klein's car. Mr. Cena died following the crash — he was pronounced dead at the Atlantic City Medical Center at 4:10 a.m. The other passengers in the car sustained serious injuries.*fn2 C. History of Klein's Misconduct and Related Discipline

  Defendant Klein has a long history of poor driving. (Pls. Ex. A.) Among other things, Defendant Klein has been involved, as the driver, in at least five accidents and has committed several moving violations. (Id.) On or about November 5, 1996, for example, Klein was served with a written notice of disciplinary action for failing to notify his commanding officer that his personal car registration and New Jersey driver's license had been suspended. On December 19, 1996, a hearing was conducted at which Klein was represented by counsel. (Mun. Def. Stat. Facts ¶ 15(a).) Klein was ultimately found guilt of "misconduct," "driving while driving privileges suspended" and "allowing his vehicle to be operated on the public highways while his registration privileges were suspended," for which he was suspended for a 30 day period beginning on February 1, 1996. (Pls. Ex. B.) A three-page decision accompanying the suspension order was issued by Defendant Jankowski. (Id.)

  Defendant Klein has been disciplined for other conduct as well. On or about August 4, 1997, Defendant Jankowski filed a Preliminary Notice of Disciplinary Action against Klein, seeking his removal effective September 13, 1997, based on charges arising from an off-duty incident whereby Klein discharged his gun at his home. (Mun. Def. Stat. Facts ¶ 15(b).) A hearing was convened, at which Klein was represented by counsel, and Klein was found guilty of conduct unbecoming an officer, and of violating police department rules regarding the handling of firearms. Klein was suspended for 45 days. (Id.)

  On or about April 5, 2000, Director Jankowski again filed a Preliminary Notice of Disciplinary Action against Klein, seeking his removal, based on charges that he was in possession of a controlled dangerous substance. (Id. at ¶ 15(c).) A hearing was scheduled for May 11, 2000 at which Klein was represented by counsel. Meanwhile, on or about April 26, 2000, Director Jankowski issued another Notice of Disciplinary Action against Klein based on an incident involving reckless driving while off-duty.*fn3 (Id. at ¶ 15(d).) A disciplinary hearing on this matter seeking Klein's suspension or removal was scheduled for June 8, 2000.*fn4 The fatal accident at issue here occurred on May 21, 2000.

  In total, Klein was disciplined on roughly 17 different occasions between 1992 and 2000. (Mun. Def. Ex. 6.) There is, however, no dispute in this case that Klein was off duty at the time of this accident, and there is no evidence that any Municipal Defendant had knowledge that Klein was drinking and driving on the night of the accident.

  D. Procedural History

  Plaintiffs here are Freddi Bilbili, Ervin Bilbili, Pjerim Gjecaj, Anjaeza Bilbili (the wife of the Ervin Bilbili) and Shygyrie Cena, both as Administratrix of the Estate of Gazmend Cena and in her individual capacity. Plaintiffs filed two separate complaints in Superior Court, Atlantic County, on May 20, 2002, alleging federal § 1983 causes of action and supplemental state law claims. Notice of removal pursuant to 28 U.S.C. § 1446 was filed by Defendant Egg Harbor City on or about June 21, 2002. The two actions were consolidated in this Court by order dated August 14, 2002. [Docket Item 13.] This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

  II. SUMMARY JUDGMENT STANDARD OF REVIEW

  Summary judgment is appropriate 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). 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 (1986). A fact is "material" only if it might affect the outcome of the suit under the ...


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