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Goins v. Newark Housing Authority

United States District Court, D. New Jersey

December 11, 2019

CHERYL GOINS, Plaintiff,

          OPINION & ORDER

          KEVIN MCNULTY, U.S.D.J.

         Pending before the Court is the motion of plaintiff Cheryl Goins for partial reconsideration (DE 100) of this Court's summary judgment Opinion and Order insofar as they dismissed her CEPA claim. (DE 98, 99). Here-and not for the first time-the Court will attempt to ensure that this client is not punished for the sins of this lawyer. For the reasons explained in this opinion, I will GRANT the motion for reconsideration (DE 100) and reinstate plaintiffs CEPA claim.

         I. Procedural Background

         This case has been plagued by lamentable lapses in representation. Where plaintiffs counsel, Ms. Foster, has not simply (and repeatedly) defaulted, she has failed to present the facts with the clarity required by the rules. The following text order, filed January 25, 2019, gives a flavor of the proceedings preceding my prior summary judgment Opinion and Order:

TEXT ORDER: The extended deadline for filing dispositive motions was June 19, 2018, with no further extensions. (DE 84). Defendant filed a motion for summary judgment (DE 85) on June 19, 2018. The plaintiff received an extension of the time to respond until August 3, 2018, marked "no further extensions." (DE 87). Plaintiff filed no response, and no communication with the Court appears on the docket. On January 3, 2019, the court issued a notice of call for dismissal pursuant to L. Civ. R. 41.1(a), returnable January 17, 2019. The Notice required that good cause by affidavit setting forth efforts to prosecute the action be filed. (DE 88). No. such affidavit was filed. On January 15, 2019, the plaintiff filed papers in response to the defendant's summary judgment motion. From a quick review, there appears to be no explanation for the delay or motion to file out of time. (DE 89, 90). On January 22, 2019, the plaintiff filed her own motion for summary judgment. (DE 93). The defendant, by letter, has requested that plaintiffs motion be struck as untimely. The plaintiff responded with a letter referring to the existence of "exceptional circumstances" for the delay, but not describing them, and requesting die court's "guidance" as to whether a formal motion is required. (DE 95). The Court... does not render advice as to matters of procedure, and its prior orders have been explicit. For the present, the Court will ADMINISTRATIVELY TERMINATE the plaintiffs motion (DE 93) without prejudice to an application for renewal should it be warranted by the Court's disposition of the defendant's summary judgment motion. So Ordered by Judge Kevin McNulty on 1/25/19. (nic, ) (Entered: 01/25/2019)

(DE 96).

         The Court's strategy was to see if defendant's motion for summary judgment would narrow the issues before considering any further summary judgment arguments from the plaintiff. Once briefing of defendant's motion for summary judgment was complete, I filed the Opinion (DE 98) and Order (DE 99) granting the motion in part and denying it in part. I denied the motion of defendant Newark Housing Authority ("NHA") for summary judgment with respect to Count 1, Ms. Goins's claim under the Fair Labor Standards Act ("FLSA") of failure to pay overtime wages. All other claims were dismissed, including the remainder of Count 1, FLSA retaliation; Count 2, Conscientious Employee Protection Act ("CEPA"); and Count 5, racial discrimination under the NJLAD and Civil Rights Act, § 1831. (Id.).[1] In my Opinion, I noted various deficiencies in the plaintiffs opposition papers, but attempted to deal with the arguments and factual contentions as presented in her brief.[2]

         I dismissed the CEPA whistleblower claim because the brief filed by Ms. Foster-although it referred to various forms of conduct that were against "the law" or "proper procedures"-failed to identify the particular law that she alleged was violated:

To establish a cause of action for retaliation under CEPA, an employee must demonstrate four elements: (1) she had a reasonable belief that her employer's conduct violated a law, regulation, or clear mandate of public policy; (2) she performed a "whistle-blowing" activity under the act; (3) the employer took an adverse employment action against her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003); Samowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007).
Here, Ms. Goins has failed to specify a single statute, rule, regulation, or source of law expressing a public policy against which the alleged facts can be measured. Rather, she has provided a sketch of at least seven incidents in which she alleges that she informed, or in some cases did not inform, her supervisors at NHA that an activity violated a law. (DE 89 pp. 4-5, 14-15). For example, she says she told Ms. Hamilton it was improper to use an expired contract without a proper bidding procedure. [See Id. p. 4). For each incident, she broadly claims that some law was violated, or believed to be violated, but fails to specify what law she is referring to. See, e.g., Id. (asserting that "there is a legal problem with using a contract that has expired rather than sending it out to be re-bid," that "die law is quite clear that a BRC is needed", or that sending a private bid via e-mail "is not permitted under the local contract law").
Ms. Goins has failed to identify the legal violations she reported, and the court will not speculate as to what they were. Because this is sufficient to require summary judgment in NHA's favor, I do not address NHA's other arguments.

(DE 98 at 31-32). The Court, as it was entitled to do, relied on die arguments as stated in the brief. (DE 89).[3]

         As matters stood post-summary judgment, the FLSA overtime claim was the only one remaining in the case. The issues having been narrowed, I then excused Ms. Foster's prior procedural defaults and authorized her to file a motion for summary judgment on that surviving FLSA claim. My order specifically admonished her that any such motion would be expected to comply with the local rules:

It is further ORDERED that within 45 days, Ms. Goins may file a renewed summary judgment motion on the FLSA uncompensated overtime claim. This motion shall conform in all respects to the Federal and Local Rules of Civil Procedure. It will be succinct. It will not contain extraneous factual material, but will focus on those facts germane to the claim that Ms. Goins worked overtime, the amount of hours worked, and the compensation allegedly owed. Each fact will be cited to the specific place in the record where support for it may be found. It will conform to the Opinion filed herewith, and will not rehash matters already decided. It is further ORDERED that NRA may file a response which may, at NHA's option, take the form of a response and cross-motion on the FLSA overtime claim.

(DE 99).

         Instead, on April 8, 2019, Ms. Goins filed the motion for reconsideration of dismissal of the CEPA claim that is now before the Court. (DE 100).

         On May 14, 2019, Ms. Foster requested a 14-day extension of her deadline to file a renewed motion for summary judgment on the FLSA claim. I granted that extension until May 28, 2019. In what had now become a pattern, she failed to file the motion by the extended deadline that she had requested.

         NHA requested guidance. As a result of the Court's order, it had expected to file an opposition and cross-motion in response to Ms. Goins's summary judgment motion. Ms. Goins, however, had neither filed such a motion nor sought additional time to do so. (DE 108). I entered an order authorizing NHA to file its own motion for summary judgment on the FLSA claim. (DE 109).

         Accordingly, on June 27, 2019, NHA filed its motion for partial summary judgment on Ms. Goins's FLSA claim (DE 111), as well as its opposition to Ms. Goins's motion for reconsideration regarding the CEPA claim. (DE 111).[4]

         Only thereafter, on July 3, 2019, did Ms. Foster file Goins's long-overdue motion for summary judgment on the FLSA claim. (DE 112). Although it had been due on May 28, 2019, the motion was not accompanied by a motion to file out of time, or even an explanation. Defendant understandably objected. (DE 113). On July 18, 2019, Ms. Goins's counsel filed a motion for an extension of time nunc pro tunc. (DE 114).[5] Not wishing to prejudice the client, I again overlooked counsel's lapse and accepted the motion for filing. (DE 117).

         I then received a letter from defense counsel complaining, with some justification, that plaintiffs summary judgment motion referred to exhibits without stating their location on the docket. (DE 118). Perceiving that plaintiffs counsel seemed to be overburdened, and not wishing to put her to the trouble of re-filing exhibits already in the record, I permitted her to take advantage of a convenient alternative procedure:

ORDER, plaintiffs counsel shall specify the location on the docket of each referenced exhibit and/ or shall refile them, ...

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