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Hector L. Ayala, Brian Bethune, Raul Couce, Miguel Cruz, Ronald v. New Jersey Department of Law and Public Safety

October 25, 2011

HECTOR L. AYALA, BRIAN BETHUNE, RAUL COUCE, MIGUEL CRUZ, RONALD DRAYTON, JR., SERGIO FERNANDEZ, KERRY GOSHEY, DARREN C. JONES, STEPHEN MUNGO, AMALIO NIEVES, SCOTT W. PACKWOOD, MARK PIERCE, AARON PORTEE, ANDRE ROBINSON, JEFFREY T. SHAW, JEFF SIMS, JOHNNY SOTO, BROOKLYN C. SMITH, DENNIS SPRUIEL, JOHN THURMOND, GEORGE W. TURNER, MICHAEL TRAVIS, ROBERT WILKINS AND RICARDO VALMON, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE, JOSEPH FUENTES, IN HIS OFFICIAL CAPACITY AND ATTORNEY GENERAL, STATE OF NEW JERSEY IN HIS/HER OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2829-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2011

Before Judges Lihotz and St. John.

Plaintiffs Hector L. Ayala, Brian Bethune, Raul Couce, Miguel Cruz, Ronald Drayton, Jr., Sergio Fernandez, Kerry Goshey, Darren C. Jones, Stephen Mungo, Amalio Nieves, Scott W. Packwood, Mark Pierce, Aaron Portee, Andre Robinson, Jeffrey T. Shaw, Jeff Sims, Johnny Soto, Brooklyn C. Smith, Dennis Spruiel, John Thurmond, George W. Turner, Michael Travis, Robert Wilkins and Ricardo Valmon, appeal from an order dated March 19, 2010, denying leave to amend their complaint pursuant to Rule 4:9-1; an order dated July 9, 2010, dismissing their complaint (except as to plaintiff Nieves) pursuant to Rule 4:6-2(e); and an order dated July 23, 2010, dismissing plaintiff Nieves's complaint pursuant to Rule 4:23-5(a)(2). We affirm.

We glean these facts from the motion record. Plaintiffs, African-American or Hispanic males, are troopers of varying ranks in the New Jersey Division of State Police (NJSP). On July 15, 2008, plaintiffs filed a complaint against defendants, the New Jersey Department of Law and Public Safety, Division of State Police; Joseph Fuentes, in his official capacity; and the Attorney General, State of New Jersey, in his/her official capacity. In their complaint, plaintiffs alleged violations of their rights under the New Jersey Constitution, N.J. Const. art. 1, ¶ 5, and violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to promote each of them because of their race, ancestry, and/or national origin. Nieves asserted an additional claim against defendants alleging violations of the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

On August 4, 2008, plaintiffs filed a first amended complaint, and a second amended complaint adding a claim for a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. On November 14, 2008, plaintiffs filed a third amended complaint correcting the ranks of certain plaintiffs and alleging that NJSP retaliated against plaintiff Travis by failing to promote him despite the fact that his claims against the NJSP for discrimination and civil rights violations were settled in 2003.

On January 21, 2009, defendants filed a motion to dismiss in lieu of an answer pursuant to Rule 4:6-2, or in the alternative, for more definitive pleadings. Judge Andrew J. Smithson granted defendants' motion and allowed plaintiffs to file a more definitive fourth amended complaint. Plaintiffs filed a fourth amended complaint on June 25, 2009. On August 6, 2009, defendants filed a motion to dismiss the fourth amended complaint. On September 25, 2009, Judge Smithson granted defendants' motion and (except for Nieves's CEPA claim), dismissed without prejudice, plaintiffs' complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e).

When Nieves failed to respond to defendants' discovery requests, defendants moved to dismiss his remaining claims. R. 4:23-5(a). Judge Darlene J. Pereksta granted the unopposed motion, without prejudice.

Thereafter, plaintiffs filed another motion to amend and sought to file a fifth amended complaint. In opposition, defendants argued that the fifth amended complaint failed to state a claim, averring it contained only vague and conclusory allegations. Defendants asserted that they would be prejudiced and that allowing the filing would be a futile act. The court opined that "there was no reason to allow the fifth amended complaint, because it was really no different than the others, I think [] [plaintiffs] have had ample opportunity to plead a cause of action . . . [Plaintiffs] haven't been able to do so as to those others[.]" Plaintiffs' request for interlocutory review of that order was denied.

Thereafter, defendants moved for entry of judgment, as plaintiffs' claims were repeatedly unaccompanied by factual support, and Nieves had failed to provide discovery, as the requisite sixty days having elapsed. R. 4:23-5(a)(2).

After reviewing the pleadings, Judge Pereksta entered two orders. The court granted defendants' motion to dismiss, except as to Nieves. The motion judge reviewed in detail Nieves's interrogatory answers and clearly set forth deficiencies with regard to each inadequate answer. The court allowed Nieves seven days to produce responsive answers and carried defendants' motion to dismiss his claims. On July 23, 2010, the court conducted a thorough, answer by answer review of Nieves's supplemental answers. Upon finding that they were not responsive, she dismissed all of Nieves's claims in plaintiffs' complaint, with prejudice, for failure to provide discovery and denied Nieves's concomitant motion to reinstate. This appeal followed.

I.

Plaintiffs argue that the motion judge erred in denying leave to file an amended complaint and dismissing the complaint with prejudice, as the proposed fifth complaint stated a valid cause of ...


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