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October 14, 2005.

FELIX GARCIA, Plaintiff,
COUNTY OF PASSAIC, JERRY SPEZIALE, individually and in his official capacity as Passaic County Sheriff, ROBERT D'ARCO, individually and in his official capacity as Passaic County Sheriff's Director of Operations, HARLEY D. BREITE, individually and in his official capacity as counsel to Speziale, and JOHN DOES 1-100, individually and in their official capacities, Defendants.

The opinion of the court was delivered by: WILLIAM BASSLER, District Judge


This law suit stems essentially from allegations that the plaintiff, Felix Garcia, a former Undersheriff of the Passaic County Sheriff's Office, was fired because he was Latino American. In the employment dispute with Garcia, the Passaic County Sheriff, Jerry Speziale, was represented by attorney Harley Breite, who Garcia is suing along with Speziale and the County of Passaic, for defamation, invasion of privacy and intentional infliction of emotional distress. Breite brought a crossclaim against Passaic County. Breite now brings this motion before the Court seeking an order to compel Speziale and Passaic County to indemnify him and to pay for his defense. In addition to claims for infringement of his civil rights, Garcia also brought claims for discrimination, retaliation and violations of public policy. Garcia alleges that Jerry Speziale, individually and in his official capacity as Passaic County Sheriff, County of Passaic and Harley Breite, Speziale's counsel (collectively "Defendants") defamed him in a letter sent February 16, 2003 ("February 16 Letter") terminating Garcia's employment as Undersheriff of the Passaic County Sheriff's Office. Garcia claims that these Defendants also disclosed the letter to the media, thereby causing the widespread publication of false and malicious allegations about Garcia to the public. Garcia further maintains that the letter contained confidential materials from Garcia's personnel file, including a psychological evaluation. He argues that he has suffered emotional distress and continues to suffer damages from Defendants' actions.

  Defendant Breite, who authored the February 16 letter, moves to compel Speziale and the County of Passaic to indemnify him on the basis that Breite acted merely as an agent for Speziale in his official capacity as Passaic County Sheriff.

  For the reasons stated in this opinion, the Court denies Breite's motion to compel indemnification as it is premature at this posture of the case.

  Jurisdiction and Venue

  This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 & 1343(a)(3) and supplemental jurisdiction over the remaining New Jersey statutory and common-law claims pursuant to 28 U.S.C. § 1367.

  Venue is properly laid in this District pursuant to 28 U.S.C. § 1391(b) because all of the defendants reside in the District and all of the events material to the allegations in the Complaint occurred in the District.


  From approximately 1972 through February 2003, the County of Passaic employed Garcia, a Latino American. Garcia held several positions in the Sheriff's office, including Warden of the Passaic County Jail, which position he held from 1994 to December 2001. During that time, he served under Passaic County Sheriff, Edwin Englehardt, a Republican who retired in 2001. In November 2001, Speziale, a Democrat, was elected as Passaic County Sheriff effective January 2002 replacing then acting County Sheriff, Ronald Fava.

  After winning the election, Garcia maintains that Speziale promised to employ Garcia as his Undersheriff throughout his tenure as Sheriff if Garcia retired as Warden of the Passaic County Jail. Garcia allegedly complied with Speziale's request, and Speziale appointed Garcia as Undersheriff in January 2002 when Speziale took office.

  In March 2002, law enforcement agents executed a search warrant at Garcia's home seeking materials regarding certain payments Garcia made to off-duty employees of the Sheriff's Office for performing services at his home approximately seven years earlier. The Search Warrant arose from an investigation conducted by the New Jersey Attorney General's Office that had commenced years earlier and targeted individuals other than Garcia. Soon thereafter, Garcia took a leave of absence without pay as Undersheriff. Garcia alleges that although he made several attempts to return to his Undersheriff position over the next several months, Speziale refused to allow him to return. In February 2003, Garcia became involved in planning and promoting a meeting to discuss concerns and objections to Speziale, including Speziale's alleged discrimination and retaliation against Latino Americans. In a letter dated February 16, 2003, Breite informed Garcia that he had been terminated from the County of Passaic Sheriff's Department. The letter further stated:
Also apparent is your misplaced confidence that the Attorney General's Office is done with their investigation. Your writing "Due to the fact that you were informed by the attorney general office, that the allegations were closed" is nothing more than wishful thinking on your part. I am certain that the Attorney General's Office is far from finished with their investigation into the past corruption of the Passaic County Sheriff's Department. However, what is quite clear from their investigation is that not only did you condone the illegal actions of those around you, but you purposefully engaged in a course of conduct contrary to the rules and regulations of the department as well as in violation of the law.
The Attorney General's preliminary findings overwhelmingly demonstrate that you brazenly and continually used your official position for personal gain. Their initial findings coupled with numerous sworn statements and evidence obtained from the search of your home reveal a continued pattern of exploiting on duty county employees and resources for your own financial gain. It has also come to my client's attention that there are allegations pertaining to county telephone records indicating phone calls, while on county time, to and from a woman friend of yours who is obviously not your wife. While this may have been standard operating procedure for you and the previous administration, Sheriff Speziale will in no way tolerate such theft, deception, and immorality from any member of his department. Ordering county employees, while on county time and using county resources, to perform work on your home and on the business of your spouse is offensive to not only the Sheriff, but to the entire law abiding community as well. These are the same people who may one day be called to serve as a jury of your peers.
Certification of Harley Breite, Exhibit A at 1-2. The letter further discussed an inspection of Garcia's personnel file, which revealed "disturbing issues." The letter noted that Garcia's "psychological evaluation falls far short from the acceptable standards required to obtain a job with the Passaic County Sheriff's Department." Breite's letter further conveyed that "[i]t appears that Dr. Robert T. Winston could not have been more correct when he wrote that your `motivation for the position appears to be strictly the need to be in a `power role,' to gratify ego needs.'" Breite concluded the letter by stating that Garcia's "flagrant disregard for the law" was something that the Passaic County Sheriff's Department would not tolerate, threatening to take legal action for slanderous remarks Garcia allegedly made about Sheriff Speziale and offering to open up Garcia's file to the public if he was "so interested in having the community learn about [his] situation." Garcia further claims that the letter then was disclosed to the media causing the information to be disseminated to the public.


  Defendant Breite argues that the Court should compel Speziale and the County of Passaic to indemnify Breite because he wrote the February 16 letter at the direction of Speziale. Breite claims that he was acting solely as the agent of Speziale in his official capacity as Passaic County Sheriff. Breite relies on Hagen v. Koerner, 64 N.J. Super. 580, 586 (App.Div. 1960) to support his position that "if an agent acts in good faith for his principal under the latter's direction, relying on the principal's representations as to the legal propriety of the act to be done . . . the law requires indemnity from the principal to the agent, for the damages of third persons." See Breite's Letter Brief ("Breite Ltr. Br.") at 2. Breite further assumes that because he has based this motion on the agent/principal relationship, which he claims Defendants do not dispute, he is entitled to indemnification. Breite's Reply Letter Brief ("Breite Reply Ltr. Br.") at 1-2. Breite's assertion, however, is flawed in that he fails to recognize that establishment of an agent/principal relationship alone is insufficient to compel indemnification.

  As a general rule, a third party may recover on a theory of implied indemnity from an employer only when a special legal relationship exists between the employer and the third party, and the liability of the third party is secondary or vicarious. Ramos v. Browning Ferris Ind. of South Jersey, Inc., 103 N.J. 177, 188-89 (1986) (citing Arcell v. Ashland Chem. Co., 152 N.J. Super. 471, 488-89, 378 A.2d 53, 62-63 (1977)). An example of a special legal relationship that will support a third party's claim for indemnification includes that of a principal and agent. Ramos, 103 N.J. at 189 (citing Hagen, 64 N.J. Super. at 586-87) ("where an agent is employed or directed by another to do an act in his behalf, [t]he law implies a promise of indemnity"). To be entitled, however, to indemnification as one who is secondarily or vicariously liable, a party must be without fault. Ramos, 103 N.J. at 191 (citing Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566 (1980); Schramm v. Arsenal Esso Station, 124 N.J. Super. 135, 138-39, 305 A.2d 83, 84 (App.Div. 1973), aff'd, 63 N.J. 593 (1973); Public Serv. Elec. & Gas Co. v. Waldroup, 38 N.J. Super. 419, 432, 119 A.2d 172, 179 (App. Div. 1977)). Breite's motion seeks to have this Court make two assumptions: 1)that his relationship with Speziale meets the special ...

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