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Farella v. Rutgers University Police Dep't

September 30, 2010

MICHAEL JASON FARELLA, PLAINTIFF,
v.
RUTGERS UNIVERSITY POLICE DEPARTMENT, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

OPINION

This matter is presently before the Court on Plaintiff's motion to amend the complaint and Defendants' motion to dismiss counts one and two of the original complaint, and upon the Report and Recommendation of United States Magistrate Judge Tonianne Bongiovanni as to these motions. Having received objections to the Report and Recommendation, the Court has conducted a de novo review of the issues raised.*fn1 N.L.R.B. v. Frazier, 966 F.2d 812, 816 (3d Cir. 1992). For the reasons discussed below, the Court shall adopt those parts of the Report and Recommendation not inconsistent with this Opinion, and shall grant Defendants' motion to dismiss counts one and two of the original complaint and grant in part and deny in part Plaintiff's motion to amend.

I. Background

The claims in this matter arise from an investigation and disciplinary action taken against Plaintiff, a member of the Rutgers University Police Department ("RUPD"), by Rutgers, The State University of New Jersey ("Rutgers"), Rhonda Harris, Chief of the RUPD and Kenneth Cop (together, "Defendants") pursuant to a complaint of misconduct that had been lodged against Plaintiff. Plaintiff alleges that Defendants improperly handled the disciplinary process against Plaintiff in violation of New Jersey law, RUPD's own policies and Plaintiff's constitutional rights.

By way of his motion, Plaintiff seeks to amend his complaint to: streamline the factual contentions from the original complaint; include allegations concerning three new Internal Affairs investigation and disciplinary actions that were initiated against Plaintiff since the filing of the original complaint; allege that defendants retaliated against Plaintiff for challenging his original Internal Affairs charges; add Kenneth Cop as a defendant; and add a Monell claim against RUPD. Defendants opposed Plaintiff's motion to amend, and cross-moved to dismiss the first and second counts of the original complaint.

The first count of the original and proposed amended complaint alleges violations of N.J.S.A. 40A:14-147, which governs the suspension and removal of police officers. In their motion to dismiss, Defendants asserted that the statute applies only to municipalities and has no application in the disciplinary process at an institution of higher learning such as Rutgers. As such, Defendants argued that the existing claims brought pursuant to this statute should be dismissed and Plaintiff's proposed amendment should be denied as futile.

The second count of the original and proposed amended complaint allege procedural due process claims. Defendants argued the second count of the complaint should be dismissed and leave to amend denied because N.J.S.A. 40A:14-147 does not apply to the RUPD and Plaintiff cannot establish a constitutionally-protected property interest in his employment. See Mudric v. Attorney General, 469 F.3d 94, 98 (3d Cir.1995) (noting that "[i]t is axiomatic that a cognizable liberty or property interest must exist in the first instance for a procedural due process claim to lie").

The motion and cross-motion were referred by the undersigned to United States Magistrate Judge Tonianne Bongiovanni, who issued a Report and Recommendation ("Report") recommending that the cross-motion to dismiss be granted and the motion to amend be granted in part and denied in part. Magistrate Judge Bongiovanni found that N.J.S.A. 40A:14-147 applies only to municipal and county police officers and, therefore, does not apply to police officers employed by institutions of higher learning. Consequently, she recommended that Plaintiff's claims under that statute be dismissed and any amendment based upon that statute denied. However, Magistrate Judge Bongiovanni found that Plaintiff should be permitted to amend his complaint to, among other things, add claims against Defendants based upon Defendants' alleged violations of the Internal Affairs Policy and Procedures ("IAPP") promulgated by the New Jersey Attorney General. Pursuant to N.J.S.A. 40A:14-181, "[e]very law enforcement agency" is required to adopt and implement guidelines consistent with the IAPP. Rejecting Defendants' arguments that this requirement is inapplicable to the RUPD, Judge Bongiovanni found that "the RUPD had/has an obligation to adopt guidelines consistent with those outlined in the IAPP." Report at 13. Therefore, she concluded that Plaintiff should be permitted to amend his complaint to assert claims based upon Defendants' alleged violation of the IAPP.

Both parties have filed objections to the Report. Having reviewed the issues raised in the objections de novo, the Court agrees with the conclusions reached by Judge Bongiovanni, although it reaches these conclusions based upon, in part, somewhat different reasoning.

II. Legal Discussion

A. Request to Strike Plaintiff's Objections

Pursuant to Federal Rule of Civil Procedure 72(b)(2), within 14 days of being served with a Magistrate Judge's report and recommendation, "a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72. A party may respond to another party's objections within 14 days of being served with the objections. Id. Here, Defendants timely filed their objections to the Report and Recommendation. See Fed. R. Civ. P. 72(b)(2) and L. Civ. R. 72.1(c)(2) (providing that a party may file its objections to a Magistrate Judge's report and recommendation within 14 days). Plaintiff, however, did not file any objections to the Report and Recommendation within the time period provided by the Rules. Rather, in his response to Defendants' objections, Plaintiff included his own objections to the Report and Recommendation. Defendants take issue with that portion of Plaintiff's filing setting forth Plaintiff's objections to the Report and Recommendation and have asked the Court to strike that portion as untimely.

In response to Defendants' request to strike, Plaintiff argues that the relevant rules do not foreclose his "cross-appeal or cross-objection, however it may be styled." Letter at docket entry 31. He further argues that to the extent Judge Bongiovanni's Order (and, presumably, Rule 72) permits a party to respond to another party's objections, "it does not, on its face, prohibit an objection to the [Report] within that response." Id. He then states that Local Rule 72.1 "provides absolutely no guidance whatsoever" as to whether a party may present (for the first time) his objections to a magistrate judge's report and recommendation in their response to another party's objection. Id. Plaintiff asks, however, if the Court were to determine that Plaintiff "misread" the Order and applicable rules, that the rules be relaxed to allow his untimely objection.

The Court finds Plaintiff's argument that his submission is timely to be baseless. The deadline for submitting objections to a report and recommendation is clearly stated in the Rules. Plaintiff submitted his objections out of time and has not provided the Court with a sufficient explanation for the late submission. Nevertheless, in the ...


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