Opinion
DOCKET NO. A-2549-16T3
06-20-2019
EDWARD RUFF, Plaintiff-Appellant, v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, RUTGERS UNIVERSITY POLICE DEPARTMENT, EXECUTIVE DIRECTOR OF POLICE SERVICES/CHIEF OF POLICE KENNETH COP, individually and in his official capacity, and CAPTAIN MICHAEL REIN, individually and in his official capacity, Defendants-Respondents.
C. Elston & Associates, LLC, attorneys for appellant (Catherine Mary Elston, of counsel and on the briefs; Cathlene Y. Banker, on the briefs). Mc Elroy Deutsch Mulvaney & Carpenter, LLP, attorneys for respondents (James P. Lidon, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Alvarez and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4740-16. C. Elston & Associates, LLC, attorneys for appellant (Catherine Mary Elston, of counsel and on the briefs; Cathlene Y. Banker, on the briefs). Mc Elroy Deutsch Mulvaney & Carpenter, LLP, attorneys for respondents (James P. Lidon, of counsel and on the brief). PER CURIAM
On May 30, 2013, plaintiff Edward Ruff, a campus police officer, responded to a call by a Rutgers University employee regarding an injured bird. Ruff told the employee the bird would be helped by "stepping on its neck or putting a bullet into it." After the employee filed a complaint against Ruff, he conducted a criminal background and warrant check on the employee. The University filed disciplinary proceedings against Ruff, ultimately resulting in a ten-day suspension, served in August 2013. He sued the named defendants as a result, seeking relief we detail later in this opinion.
After the Law Division's dismissal of his complaint, Ruff appealed, and we denied relief on the grounds of mootness in an unpublished opinion. Ruff v. Rutgers, The State Univ. of N.J., No. A-2549-16 (App. Div. Dec. 12, 2018). We had earlier affirmed the August 14, 2014 Public Employment Relations Commission (PERC) judgment that binding arbitration was not available to Ruff, although it was included as step four of the grievance process in the collective bargaining agreement (CBA) in effect at the relevant time. See In the Matter of Rutgers, The State Univ. v. FOP Lodge 62, No. A-0455-14 (App. Div. Sept. 8, 2016).
The New Jersey Supreme Court summarily remanded the case for us to reconsider Ruff's appeal on the merits. Ruff v. Rutgers, the State Univ. of N.J., 237 N.J. 174 (2019). We do so, and now affirm the trial judge's dismissal of Ruff's complaint for the reasons that follow.
Ruff is a member of the Fraternal Order of Police - Primary Unit, Lodge 62 (FOP). The FOP negotiated a CBA with the University that stated in Article 5, Paragraph 3: "In the case of any disciplinary action, the sole right and remedy under this Agreement shall be to file a grievance through and in accordance with the grievance procedure."
Article 7 defined the grievance procedure as any "dispute concerning the interpretation, application, or claimed violation of any provision of this Agreement, or of any . . . policy or any administrative decision relating to wages, hours or other terms or conditions of employment of the officers . . . ." Article 7, Paragraph 2 outlined the four-step grievance procedure. Step one called for a meeting with the employee's supervisor, step two for a meeting with the chief, and step three called for a meeting with a representative of the Office of Labor Relations. The grievant was entitled to appear at these meetings with an FOP representative.
The final step, step four of the grievance process, which PERC found unenforceable, calls for "binding arbitration with notice to the Office of Labor Relations." The arbitration would be governed by PERC regulations, and the arbitrator chosen from PERC's list.
Also important is Article 43 of the CBA. It provides that if any section of the CBA is found to be invalid, it does not negate the viability of the rest of the CBA.
After the ten-day suspension was imposed, Ruff followed grievance steps one through three, and the FOP then filed a "request for submission of a panel of arbitrators." In response, the University filed a scope of negotiations petition seeking to enjoin arbitration. PERC granted the University's petition, holding that the University has "a managerial prerogative to impose discipline" on police officers, and that State v. State Troopers Fraternal Association, 134 N.J. 393 (1993), precludes binding arbitration in major disciplinary disputes involving police officers. We affirmed that decision. In the Matter of Rutgers, slip op. at 10. No appeal was taken.
Meanwhile, on August 12, 2016, Ruff filed the within complaint. Count one alleged that the University's disciplinary procedures violated his due process rights as guaranteed by "the New Jersey Civil Rights Act[], the New Jersey Constitution and New Jersey State Statutes." Count two alleged violations of the Law Enforcement Officers' Protection Act (LEPA), N.J.S.A. 40A:14-181, and the Attorney General Guidelines on Internal Affairs. In count three, Ruff alleged the disciplinary process was "arbitrary, capricious and patently unreasonable conduct in the disciplinary process and the imposition of discipline, including violation of this State's policy of progressive discipline." He sought compensatory and punitive damages, as well as attorney's fees, by way of relief.
Defendants filed a motion to dismiss the complaint, raising the statute of limitations as a defense to count one. Regarding count two, defendants asserted that N.J.S.A. 40A:14-181 did not include campus police when this incident and the disciplinary proceedings occurred, and that the statute could not be applied retroactively. Thereafter, Ruff cross-moved to amend his complaint to add a breach of contract claim, claiming that the University and individual defendants had breached the CBA.
The trial judge initially declined to dismiss count one because she concluded that the imposition of the statutory limitations period, given all of the legal actions taken during the time period from the incident until the Appellate Division ruled in September of 2016, precluded the strict application of the statute of limitations to bar plaintiff's claim. The court granted dismissal of counts two and three without prejudice. With regard to count two, the court preliminarily determined that the statute did not apply retroactively, but extended to Ruff an opportunity to amend the complaint in order to establish that the statute could be applied retroactively. With regard to count three, the court allowed an amendment to the complaint to permit Ruff to distinguish the allegations of count three from count one as constituting a basis for a separate remedy.
The court also dismissed claims against the Rutgers University Police Department as it was not a separate entity from the University. That decision is not appealed. --------
The court denied Ruff's motion to amend the complaint to add breach of contract as a separate cause of action because Paragraph 3 of Article 5 of the CBA limited an employee's right to challenge the grievance process to the remedies found in the CBA itself. Additionally, because the court did not dismiss count one, the judge stated there was no need to assert breach of contract as an independent cause of action.
The court observed that Ruff was aware of the grievance procedure. Since no allegation was being made that the grievance procedure outlined in the CBA was not followed, "[t]here [was] no independent right to seek . . . judicial relief here in the [S]uperior [C]ourt."
Thereafter, Ruff filed an amended complaint and sought to reinstate counts two and three. The trial court denied the application, holding that "[m]any of the same pleading deficiencies remain in the proposed amended complaint, as existed, when [t]he [c]ourt granted the relief to dismiss those counts without prejudice . . . ."
On the University's reconsideration cross-motion, the court dismissed count one in its entirety with prejudice. In doing so, the judge decided first that the issue raised by the FOP before PERC was a legal question only, and was therefore an exception to a requirement of exhaustion of administrative remedies. The trial judge found that the cause of action arose on July 31, 2013; plaintiff had ample time following the conclusion of the PERC proceedings in August 2014 to file his complaint, but did not do so until August 12, 2016. Thus, since Ruff was not required to exhaust administrative remedies, but was entitled to file his complaint even while the proceedings were pending before PERC, he was barred by the two-year statute of limitations.
Now on appeal, Ruff raises the following points:
I. LEGAL STANDARD.
A. Motion for Leave to Amend.
B. Motion to Dismiss.
C. Motion for Reconsideration.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF LEAVE TO ADD A BREACH OF CONTRACT CLAIM ON GROUNDS OF FUTILITY.
A. Granting Plaintiff leave to amend his complaint will not prejudice Defendants.
B. The trial court's determination that the grant of Plaintiff's motion for leave to add a breach of contract claim would be futile is based upon a mistake of fact and a mistake of law.
C. Granting Plaintiff leave to amend his complaint will prevent manifest injustice.
III. THE TRIAL COURT'S DISMISSAL OF COUNT TWO WAS BASED UPON A MISTAKE OF LAW AND ITS DENIAL OF PLAINTIFF'S MOTION FOR LEAVE TO AMEND COUNT TWO WAS BASED UPON A MISAPPLICATION OF THE MOTION TO DISMISS STANDARD.
IV. THE TRIAL COURT'S DENIAL OF PLAINTIFF'S MOTION FOR LEAVE TO AMEND COUNT THREE WAS BASED UPON A MISTAKE OF LAW.
V. THE TRIAL COURT'S DISMISSAL OF COUNT ONE ON DEFENDANTS' MOTION FOR RECONSIDERATION WAS BASED UPON A MISTAKE OF LAW.
I.
Motions for leave to amend a pleading as set forth in Rule 4:9-1 are generally granted liberally—ultimately resting, however, "in the court's sound discretion." Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). In deciding whether leave to amend should be granted, a court asks if the additional pleading "would nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).
Motions to dismiss for failure to state a claim should be granted in "only the rarest [of] instances." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (quoting Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 69 (1993)). The inquiry should be "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The critical question is "whether a cause of action is suggested by the facts." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988).
As Printing Mart-Morristown instructs, complaints should be searched "in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." 116 N.J. at 746 (quoting DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). In the course of reviewing those applications, we assume the facts asserted by the non-moving party are true and give him or her the benefit of all inferences that may be drawn in the non-movant's favor. Velantzas, 109 N.J. at 192.
The trial court concluded that Article 5, paragraph 3 of the CBA expressly limits recourse against disciplinary action to the grievance process. Thus, to allow Ruff to amend to include a cause of action for breach of contract would have been an exercise in futility. The judge's exercise of discretion in this case was proper as no cause of action, even drawing all inferences from the facts in Ruff's favor, would change the unalterable language of the agreement. No manifest injustice resulted from the court's decision to deny an amendment to include breach of contract.
II.
Ruff contends that the court's decision to dismiss the second count of the complaint was error because the University should have had internal affairs guidelines that conformed to those promulgated by the New Jersey Attorney General's Office, and that by failing to do so, the University violated N.J.S.A. 40A:14-181. But, it was not until the 2015 amendment of the statute that campus police were included, and Ruff offers no precedent making the requirement retroactive.
From January 9, 1997 to August 31, 2015, the statute read:
Every law enforcement agency shall adopt and implement guidelines which shall be consistent with the guidelines governing the "Internal Affairs Policy and Procedures" of the Police Management Manual promulgated by the Police Bureau of the Division of Criminal Justice in the Department of Law and Public Safety, and shall be consistent with any tenure or civil service laws, and shall not supersede any existing contractual agreements.
See L.1996, c.115, §10.
The statute was amended in 2015 to read:
Every law enforcement agency, including a police department of an institution of higher education established pursuant to P.L.1970, c. 211 (C.18A:6-4.2 et seq.), shall adopt and implement guidelines which shall be consistent with the guidelines governing the "Internal Affairs Policy and Procedures" of the Police
Management Manual promulgated by the Police Bureau of the Division of Criminal Justice in the Department of Law and Public Safety, and shall be consistent with any tenure or civil service laws, and shall not supersede any existing contractual agreements.
See L.2015, c.52, §1, eff. Sep. 1, 2015 (emphasis added).
The legislative history of the amendment includes statements accompanying the Assembly (A3493) and Senate (S2564) bills. They are identical:
STATEMENT
[This bill] requires police departments of institutions of higher education to adopt the Attorney General Guidelines on internal affairs policies and procedures.
Under current law, every law enforcement agency in the State is required to adopt and implement guidelines consistent with those governing the "Internal Affairs Policy and Procedures" of the Police Management Manual promulgated by the Police Bureau of the Division of Criminal Justice in the Department of Law and Public Safety.
Under the provisions of this bill, police departments of institutions of higher education also would be required to adopt and implement these guidelines.
(Emphasis added).
"An amendment to a statute ordinarily implies a purposeful alteration in substance." Bergen Cty. PBA Local 134 v. Donovan, 436 N.J. Super. 187, 199 (App. Div. 2014). In construing a statute, "[t]he legislature is presumed to know the prior construction of terms in the original act" and "that the provisions added by amendment were not included in the original act." Essex Cty. Retail Liquor Stores Ass'n v. Mun. Bd. of Alcoholic Beverage Control of Newark, 77 N.J. Super. 70, 78 (App. Div. 1962) (quoting 1 Sutherland, Statutory Construction, § 1930 at 412-13, 415 (3d ed. 1943)). Moreover, unless explicitly authorized, statutes should be applied prospectively, and do not have retroactive effect.
Regarding count two, the amended complaint does not explain why the Attorney General Guidelines applied to police departments of institutions of higher learning prior to September 2015. The amendment would not survive a motion to dismiss. The trial court therefore correctly dismissed count two and later denied the motion to amend.
III.
Nor did the trial court err in denying Ruff's application to amend count three. The judge found that the proposed amendment, equivalent to an action in lieu of prerogative writ, was untimely. Ruff contends that Rule 4:69-5 renders Rule 4:69-6(a)'s forty-five-day limitations period inapplicable.
In our view, the petition to PERC addressed a purely legal question, which means that Ruff was not required to exhaust administrative remedies. Rule 4:69 runs the clock beginning on the day after the right of review before the administrative agency has concluded. Even if Rule 4:69-5 applied, PERC's decision, rendered on August 14, 2014, was more than forty-five days before the filing date of the complaint - August 12, 2016.
IV.
Reconsideration is "a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Such a motion should be granted when the prior decision overlooked law or evidence or otherwise erred. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).
The trial court's decision on a motion for reconsideration is reviewed for abuse of discretion. Id. at 389. "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Reconsideration is not appropriate merely because a litigant is unhappy with a decision or wants to reargue a motion. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather, reconsideration should only be used in those cases that fit into a narrow category where "either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria, 242 N.J. Super. at 401.
On defendant's motion for reconsideration, the trial judge decided that count one was barred by the statute of limitations. The trial judge found that the issue presented on the University's petition was purely legal, a conclusion with which Ruff disagrees. PERC's decision answered only a question of law - whether arbitration, authorized in step four of the CBA grievance procedure, was permissible. It is well-established that exhaustion of administrative remedies, which would ordinarily toll the two-year statute of limitations, does not apply when only a question of law is involved. See Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-61 (1979); Sanchez v. Dep't. of Human Servs., 314 N.J. Super. 11, 31-32 (App. Div. 1998).
The only question PERC addressed, the only question presented to it, was whether actions of major discipline fell within the scope of public sector negotiations under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1.
PERC answered a legal question, which we affirmed on review on purely legal grounds. Thus, plaintiff was not required to exhaust administrative remedies, and the statute of limitations from the time of imposition and completion of his discipline in August 2013 had long expired by the time of the filing of his complaint in 2016.
Thus, the court correctly dismissed count one of plaintiff's complaint. That the litigation was ongoing did not trigger any equitable tolling. Nothing in this case either explained or excused the delay.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION