Rudolph v. Adamar of New Jersey, Inc., CIV. A. 00-190.

153 F.Supp.2d 528

John D. RUDOLPH, on behalf of himself and all similarly situated persons, Plaintiffs, v. ADAMAR OF NEW JERSEY, INC., d/b/a Tropicana Casino and Resort, Defendant/Third-Party Plaintiff, v. The State of New Jersey, Donald T. Difrancesco, Acting Governor of the State of New Jersey, John J. Farmer, Jr., Attorney General of the State of New Jersey, James R. Hurley, Chairperson of the New Jersey Casino Control Commission, Third-Party Defendants.

No. CIV. A. 00-190.

United States District Court, D. New Jersey.

July 31, 2001.

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Stephen G. Console, Console Law Offices, LLC, Deborah H. Simon, The Mager Law Firm, P.C., Westmont, NJ, for Plaintiff, John D. Rudolph.

Louis R. Moffa, Jerry L. Tanenbaum, Schnader Harrison Segal & Lewis LLP, Cherry Hill, NJ, for Defendant/Third-Party Plaintiff, Adamar of New Jersey, d/b/a/ Tropicana Casino and Resort.

John J. Farmer, Jr., Attorney General of New Jersey, Mark Turner Holmes, Deputy Attorney General, Trenton, NJ, for Third-Party Defendants, the State of New Jersey, Donald T. DiFrancesco, Acting Governor of the State of New Jersey, and John J. Farmer, Jr., the Attorney General of the State of New Jersey.

John R. Zimmerman, General Counsel, New Jersey Casino Control Commission, David C. Missimer, Assistant General Counsel, Atlantic City, NJ, for Third-Party Defendant, James R. Hurley, Chairman, New Jersey Casino Control Commission.

OPINION

ORLOFSKY, District Judge.

I. INTRODUCTION

The pending motions before this Court require the consideration and resolution of several novel questions of law. First, the Court must decide whether the Defendant/Third-party Plaintiff, Adamar of New Jersey, d/b/a Tropicana Casino and Resort ("Tropicana"), has a right, either under federal common law or by statute, specifically, 42 U.S.C. § 1988, to seek contribution and indemnification from the State of New Jersey for any attorneys' fees ultimately awarded to the Plaintiff against the Defendant/Third-Party Plaintiff. Second, this Court must decide whether the Eleventh Amendment bars the Plaintiff's and Third-Party Plaintiff's claims, asserted under the New Jersey Law Against Discrimination ("NJLAD") against the State of New Jersey, to the extent that these claims are alleged against the State not in its capacity as an employer, for which it has clearly waived its sovereign immunity under the NJLAD, but in its legislative and executive capacities. Finally, this Court must determine whether the New Jersey Casino Control Commission is the alter-ego of the State of New Jersey and is therefore entitled to Eleventh Amendment immunity.

For the reasons set forth in this Opinion, I conclude that Tropicana has neither a statutory, nor a common-law right to seek contribution or indemnification from the State for Plaintiff's attorneys' fees. I further conclude that while the State of New Jersey has waived its sovereign immunity to be sued under the NJLAD, it has done so only in its capacity as an employer. Accordingly, I conclude that the State of New Jersey enjoys Eleventh Amendment immunity against suit in federal court under the NJLAD when the State is sued in its legislative and executive capacities. Finally, I conclude that the New Jersey Casino Control Commission is an alter ego of the State of New Jersey and is therefore entitled to Eleventh Amendment immunity.

II. PROCEDURAL HISTORY

On January 12, 2000, Plaintiff, John D. Rudolph ("Rudolph"), filed a Complaint with this Court against his former employer, Adamar of New Jersey, Inc., which does business as Tropicana Casino and Resort ("Tropicana"). Rudolph, who is a white male, alleges that Tropicana, through the implementation of its Equal Employment and Business Opportunity Plan ("EEBOP")¹, discriminated against him and all similarly situated individuals on the basis of race and sex, in violation of 42 U.S.C. § 1981 (Count I) and the NJLAD. (Count II). In addition to these class claims, Rudolph, who is fifty years old, alleges an individual claim for discrimination on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Count III) and the NJLAD (Count IV).

On February 25, 2000, Tropicana filed a Third Party Complaint against the State of New Jersey, the Governor of the State of New Jersey, now Acting Governor Donald T. DiFrancesco ("the Governor"), and John J. Farmer, Jr., the Attorney General of the State of New Jersey ("the Attorney General") (together, "the State Defendants"). Both the Governor and the Attorney General were named in their official capacities. Tropicana also named as a Third-Party Defendant James R. Hurley ("Hurley"), in his official capacity as Chairperson of the New Jersey Casino Control Commission ("CCC"). The CCC was created pursuant to the New Jersey Casino Control Act ("the Act"), N.J.S.A. § 5:12-1 et seq. The Act, which took effect on June 2, 1977, legalized casino gambling in Atlantic City, New Jersey. Id. The Commission has promulgated regulations which, inter alia, require each casino licensee to adopt an approved affirmative action plan, the EEBOP. N.J.A.C. § 19:53-6.1.

Tropicana filed the Third-Party Complaint against the State and NJCCC Defendants because it alleges that "to the extent that any portion of [Tropicana's] EEBOP contained or caused affirmative action that was in any way unlawful, such action was instituted solely because it was required by the [New Jersey Casino Control] Act and its implementing regulations." State's Br. at 2. Specifically, Tropicana alleges that the portions of the New Jersey Casino Control Act and its implementing regulations, which require casinos to develop and implement EEBOPs, violate 42 U.S.C. § 1981 (Count I), 42 U.S.C. § 1983, the United States Constitution, and the New Jersey Constitution (Count II), and the New Jersey Law Against Discrimination (Count III). With respect to Counts I, II, and III, Tropicana seeks declaratory and injunctive relief, reimbursement of reasonable attorneys' fees, and reimbursement for all equitable relief, including damages and attorneys' fees, obtained against Tropicana by Plaintiff or the plaintiff class. Tropicana also alleges, in Count IV, a claim for common law indemnification and for contribution pursuant to the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. § 2A:53A-1 et seq.

On March 15, 2000, Plaintiff filed claims against the Third-Party Defendants pursuant to Federal Rule of Civil Procedure 14(a).² Plaintiff's Rule 14(a) Complaint alleges that Tropicana's state-mandated EEBOP caused the alleged violations of Plaintiff's rights under 42 U.S.C. § 1981 (Count I), § 1983 (Count II), the NJLAD (Count III), and the New Jersey Constitution (Count IV). Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, and costs and fees.

Two motions are now before the Court. First, the State Defendants have moved to dismiss all claims against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), except the Plaintiff's and Third-Party Plaintiff's claims against the Governor and the Attorney General which seek prospective, injunctive relief under federal law. Second, Commissioner Hurley has moved to dismiss all claims brought against him in his official capacity on the ground that the NJCCC is an arm of the State of New Jersey and is therefore entitled to Eleventh Amendment immunity.

I shall grant the State Defendants' unopposed motion to dismiss all claims against the State of New Jersey on the grounds of Eleventh Amendment immunity. Additionally, for the reason set forth below, I shall grant the State Defendants' motion to dismiss Tropicana's claims for contribution, indemnification, or statutory entitlement pursuant to 42 U.S.C. § 1988, for Plaintiff's attorneys' fees which may be assessed against Tropicana if Plaintiff prevails against Tropicana in the underlying litigation. Furthermore, I shall grant the State Defendants' motion to dismiss Plaintiff's and Tropicana's claims against the State Defendants for damages under the NJLAD.

With respect to Commissioner Hurley's motion, I shall grant his motion to dismiss the claims against him, with the exception of the claims for prospective, injunctive relief under federal law.

III. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331³ and 1367(a).⁴

IV. LEGAL STANDARDS GOVERNING MOTIONS TO DISMISS

Federal Rule of Civil Procedure 12(b)(1) governs a district court's ability to dismiss a claim for lack of subject matter jurisdiction. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir.1991), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). "When the subject matter jurisdiction of the court is challenged, the party that invokes the court's jurisdiction bears the burden of persuasion." Lumbermans Mutual Casualty Co. v. Fishman, 1999 WL 744016 at *3 (E.D.Pa.1999) (citing Kehr Packages, Inc., 926 F.2d at 1409).

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief may be granted. "In considering a Rule 12(b)(6) motion, the Court may dismiss a complaint if it appears certain the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief." Mruz v. Caring, Inc., 39 F.Supp.2d 495, 500 (D.N.J.1999) (Orlofsky J.) (citing Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988)). "While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990)); see also Conley v. Gibson, 355 U.S. 41,...