BARAN v. ASRC FEDERAL

[Dkt. No. 60]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ANNA BARAN,

Plaintiff,

Civil No. 17-7425 (RMB/JS)

v.

ASRC FEDERAL, MISSION OPINION

SOLUTIONS, ROSE WELLS, FRANCIS

MCKENNA, SUSAN GOLDBERG,

Defendants.

APPEARANCES:

HAGERTY & BLAND-TULL LAW LLC

By: LaTonya Bland-Tull, Esq.; Robert J. Hagerty, Esq.

523 Haddon Avenue

Collingswood, New Jersey 08108

Counsel for Plaintiff Anna Baran

LITTLER MENDELSON P.C.

By: William J. Leahy, Esq.; Alexa J. Laborda Nelson, Esq.

Three Parkway

1601 Cherry Street, Suite 1400

Philadelphia, Pennsylvania 19102-1321

Counsel for Defendant Mission Solutions, LLC

RENÉE MARIE BUMB, United States District Judge:

Following four years of litigation – which included almost

three years in state court, removal to federal court, and a

four-day trial before this Court – the jury spoke: Defendant

Mission Solutions, LLC (“MSE” or “Defendant”), owed its former

employee, Plaintiff Anna Baran, $3.5 million in compensatory

damages for defaming her by falsely reporting that she had

threatened workplace violence. It is a verdict that Defendant

contends must be set aside because Plaintiff’s defamation claim

was time-barred long before she ever commenced suit.

As odd as it seems, it was not until the close of

Plaintiff’s case that the Court learned about the parties’

longstanding disagreement over the statute of limitations for

the defamation claim. Defendant argues that neither Plaintiff’s

pleadings nor the evidence presented at trial support a finding

that any defamatory conduct occurred within the statute of

limitations. Plaintiff disagrees, contending that a prior state

court ruling, which applied the “discovery rule” and ordered

Plaintiff’s defamation claim to proceed to trial, binds this

Court as “law of the case.”

With the benefit of post-trial briefing, this Court agrees

with Defendant: the defamation claim should have never proceeded

to trial. Plaintiff clearly misstated the law to the state

court, precipitating the state court’s erroneous application of

the discovery rule to a defamation claim. Thus, the state

court’s unfortunate and incorrect ruling that Plaintiff could

present her defamation claim to a jury, which extended the case

for years and resulted in the verdict in Plaintiff’s favor, was

a direct result of Plaintiff’s misstatements.

This Court holds that a verdict caused by a legal calamity

of Plaintiff’s own creation cannot stand. For that reason,

Defendant’s Renewed Motion for Judgment as a Matter of Law

pursuant to Fed. R. Civ. P. 50(b), or in the alternative a New

Trial pursuant to Fed. R. Civ. P. 59(a)(1) [Dkt. Nos. 59, 60,

67], will be GRANTED, and the jury verdict on the defamation

claim will be set aside. The Court will direct the entry of

judgment on the jury’s verdict on the retaliation claim and

judgment as a matter of law in favor of Defendant on the

defamation claim.

I. FACTUAL BACKGROUND

Plaintiff Anna Baran is a former employee of MSE, a military

defense contractor that supplies systems engineering, software

engineering, integration services and products for mission-

critical defense systems. Plaintiff worked for MSE as a Senior

Quality Assurance Engineer, a position that required security

clearances, until she was terminated for allegedly threatening

to shoot three of her supervisors at MSE.

According to Plaintiff’s co-workers, Rosemarie Wells and

Gaynelle Johnson, Plaintiff had long complained that she was the

victim of “bullying” by one of her supervisors, Sue Goldberg.

On January 7, 2013, Plaintiff allegedly told Wells, “don’t be

surprised if this place goes up.” Plaintiff allegedly stated

that “if [she] had a gun,” she would shoot Goldberg, Pat

Brencher, and Paul Nocito (her other supervisors). Given

Plaintiff’s history of complaining about “bullying,” Wells

became concerned and “very, very upset” about Plaintiff’s

statements. That same day, Wells reported Plaintiff’s comments

to MSE’s Facility Security Officer Francis McKenna. Soon

thereafter, Plaintiff was suspended pending an investigation

into her alleged threats. During the investigation, Plaintiff

denied making any such threats. Despite Plaintiff’s denials,

she was arrested and charged with making a terroristic threat on

January 9, 2013. A few days later, January 14, 2013, Defendant

terminated Plaintiff’s employment.

On January 15, 2013, McKenna updated Plaintiff’s incident

history in the Joint Personnel Adjudication System (“JPAS” or

the “JPAS system”) to reflect the circumstances surrounding

Plaintiff’s termination. JPAS functions as the Department of

Defense (“DoD”) personnel database of record for security

clearance processing. According to MSE, McKenna entered this

information because federal regulations, reflected in the

National Industrial Security Program Operating Manual

(“NISPOM”), require MSE to update JPAS with any “adverse

information coming to their attention concerning any of their

cleared employees.” See NISPOM, Section 3, at 1-302(a). On May

1, 2013, McKenna finalized his earlier incident report about

Plaintiff’s termination in JPAS (hereinafter referred to as the

“JPAS Report”). In its entirety, the JPAS Report submitted by

McKenna states:

“On 1/7/13 MSE employee [Rosemarie Wells] advised FSO

[Francis McKenna] that MSE employee Anna Baran allegedly

made statements to [Rose] that she intended to go get a

rifle and return to MSE and shoot 3 employees. This was

partly due to a human resources issue in which Baran

alleged workplace bullying by her supervisor. On 1/8/13

Baran was sent home on administrative leave while the

allegations were investigated. The Moorestown, NJ Police

were notified (incident # 2003-000002810 and they

interviewed [Rose] as part of their investigation.

Burlington County Judge Lois Downey charged Baran with

terroristic threats and as a bail condition ordered that

Baran be evaluated by the Screening Crisis Intervention

Program. This was done at 1AM on 1/9/13. She was

released at 6AM and taken to the Burlington County Jail

on the above charge. MSE HR investigation was done from

1/9-14/13 and the decision to terminate Baran was made

on 1/14/13.”

MSE Trial Ex. 27.

Although the criminal charges against Plaintiff were

eventually dropped, and her record was expunged, the JPAS Report

does not reflect the final disposition of that matter. In this

action, Plaintiff contended that MSE’s comments about the nature

of her termination in the JPAS Report prevented her from

obtaining a comparable job.1 In at least one instance, Plaintiff

claimed that a job offer was rescinded because she was unable to

secure a security clearance due to the description of events in

the JPAS Report. Consequently, Plaintiff alleged that

Defendant’s actions continued to negatively impact her

professional, financial, and emotional well-being.

II. PROCEDURAL HISTORY

The procedural history of this case is long and

complicated. It began over four years ago, on January 6, 2015,

when Plaintiff filed her original pro se Complaint against

Defendant in the Superior Court of New Jersey, Law Division,

Burlington County (Case No. BUR-L-53-15). Throughout the course

of those years, the case had been dismissed, reinstated,

proceeded through discovery, and finally set for trial in state

court – all before it was removed to this Court pursuant to 28

U.S.C. § 1442 (the “Federal Officer Removal Statute”) on the eve

of trial in state court.

A. Early Stages in New Jersey State Court

In her initial pro se Complaint, Plaintiff alleged causes

of action that she described as negligence, malicious

prosecution, intentional and negligence infliction of emotional

1 As discussed infra Section IV.A, at trial, Plaintiff’s

defamation claim was based solely upon information contained in

the JPAS report.

distress, defamation, slander, tortious interference, and

retaliation. On April 24, 2015, the Superior Court granted

Defendant’s Motion to Dismiss and dismissed Plaintiff’s pro se

Complaint without prejudice, but ordered that: (1) Plaintiff was

required to retain legal counsel by July 1, 2015; (2) Defendant

was required to issue a neutral employment reference; and (3)

Defendant was required to use its best efforts to assist

Plaintiff in obtaining a security clearance. [Dkt. No. 1-2, at

69].

Almost seven months passed before Plaintiff’s current

attorneys first entered an appearance on her behalf on November

16, 2015. Another eight months passed before Plaintiff filed a

Motion to Correct a Clerical Error and Amend Complaint on July

26, 2016, seeking to reinstate the case. On October 6, 2016,

the Superior Court granted Plaintiff’s motion, reinstating the

case and permitting Plaintiff to file an Amended Complaint.

[Dkt. No. 1-2, at 72].

Plaintiff, at this point represented by counsel, filed her

Amended Complaint on October 18, 2016, almost two years after

she originally commenced the case. Plaintiff’s Amended

Complaint asserted four counts against Defendant: (1)

Defamation, Libel and Slander (Count One); (2) Defamation, Libel

and Slander per se (Count Two); (3) Hostile Environment in

violation of the New Jersey Law Against Discrimination (“NJLAD”)

(Count Three); and (4) Retaliatory Discharge in Violation of the

NJLAD (Count Four). See Pl.’s Am. Compl. [Dkt. No. 1-2, at 81-

90].

On March 6, 2017, the Superior Court dismissed Counts One,

Two, and Three of Plaintiff’s Amended Complaint, leaving only

Plaintiff’s retaliation claim under the NJLAD (Count Four) as

the parties proceeded to discovery. [Dkt. No. 1-2, at 73-80].

After the parties conducted depositions and other discovery on

Plaintiff’s lone remaining retaliation claim, Defendant moved

for summary judgment. In response, Plaintiff filed a Motion for

Reconsideration of the Superior Court’s prior order dismissing

the defamation claims.

B. Motion for Reconsideration

At oral argument before Superior Court Judge John E.

Harrington on September 8, 2017, one month before the scheduled

trial, Plaintiff’s counsel argued for the first time that her

defamation claims should be reinstated because they were

premised upon McKenna’s statements in the JPAS Report. During

oral argument, counsel for Plaintiff conceded that the

statements in the JPAS Report were made in 2013 and, thus, would

normally be time-barred under New Jersey’s one-year statute of

limitations for defamation claims. See Superior Court Hearing

Transcript, September 8, 2017 (“Superior Court Transcript”)[Dkt.

No. 59-1, Ex. E], at 13:14-23. However, Plaintiff argued, her

claims should be tolled under the “discovery rule,” because

Plaintiff did not learn of the existence of the JPAS Report

until August 2014, when it impacted her ability to obtain a

security clearance. See id., at 13:23-17:16. In relevant part,

Plaintiff’s counsel had the following exchange with Judge

Harrington:

THE COURT: Okay. From your perspective, what is the

operative date that is within the one year? Because

it's a hard and fast rule unless you can tell me

discovery or some other exception. So, go.

MS. BLAND-TULL: Simply put, what Your Honor just said

is exactly true. Ms. Baran did not discover this JPAS

entry until she began to search for employment.

THE COURT: When was that?

MS. BLAND-TULL: She was on unemployment for a few

months and, then, once she interviewed with L3 in

August of 2015, they –

MR. HAGERTY: '14.

MS. BLAND-TULL: I'm sorry. 2014, excuse me, Your

Honor. That is when she discovered and they alerted

her to the fact that they were unable to continue or

they had to rescind the offer that was forthcoming to

her –

THE COURT: Because –

MS.BLAND-TULL: -- because of this information in the

JPAS system. So, that is when she first –

THE COURT: August of

MS. BLAND-TULL: -- learned of it.

THE COURT: All right. So, discovery is August '14.

We'll get into all whether it's true or not. August

'14. So, if that's the operative -that's the discovery

date, it relates back to all these other

circumstances. So the defamation, even though it

occurred some time ago, would have been filed within

time. Does the discovery rule apply to defamation? I

mean, I know it does –

MS.BLAND-TULL: Yes, I'm -- I'm sorry.

THE COURT: -- with neg -- with negligence and –

MS. BLAND-TULL: I -- I was -- my partner was just

alerting me to the fact that, because I'm getting my

dates mixed up. If it occurred in August of 2014, she

was actually within the statute of limitations

THE COURT: I know.

MS. BLAND-TULL: -- when she filed.

THE COURT: I know that. But, -MS.

BLAND-TULL: Okay.

THE COURT: The occurrence is her being told. But, the

action occurred past -- beyond the one year; but, she

didn't know about it until within the one year.

[]

THE COURT: So, if she knew in May of '13, then,

obviously, it's too late, correct?

MS. BLAND-TULL: Correct.

Id., at 13:23-15:19; 16:12-14. (emphasis added)

Defendant objected to the applicability of the

discovery rule. Judge Harrington, however, held that the

discovery rule or the “continuing tort” doctrine served to

toll Plaintiff’s defamation claim, meaning it accrued in

August of 2014 rather than May of 2013. Under Judge

Harrington’s analysis, Plaintiff’s Amended Complaint was

also timely because her claims fell within the parameters

of her original Complaint. See Superior Court Transcript,

at 31:15-32:9. In relevant part, Judge Harrington stated:

THE COURT: I believe the discovery rule applies. I

believe that it relates back. I believe that from the

very, very beginning, she's been aggrieved about the

actions of -- of -- of the employer. The employer

did -- now, they should have, could have, would have

she would have known that this was going down, would

have been something she should have known. That's a

different problem for you in the case. What I mean by

that is sending it to this --

MS.BLAND-TULL: JPAS.

MR. LEAHY: The JPAS.

THE COURT: J-Pack (sic), yeah. If she's in the

business, she would have known that was happening. I

think I got her to admit that somewhere along the way

when we were talking here. But, I'm -- I'm fairly

confident that I can read the complaint to include all

tortious acts as continuing tort. They – they

committed a second tort. You're allowed to -- to file

a complaint for that basis. I'm comfortable with that.

That's what I was going to do.

Id. (emphasis added)

Despite Defendant’s argument that the defamation

claims were barred by the statute of limitations, Judge

Harrington granted Plaintiff’s Motion for Reconsideration

and reinstated Plaintiff’s defamation claim. The court

explained that his decision was final and that he would

allow Plaintiff to present the defamation case to the jury

at trial. See Superior Court Transcript, at 36:15-37:3.

The court clarified that he was not “finding up-front that

there’s a defamation claim. I’m simply saying that you can

continue to present this to the jury.” Id. at 41:24-42:2

(emphasis added).

At the conclusion of oral argument, Judge Harrington

ordered the parties to conduct expedited discovery on the

defamation claim, specifically, the date of Plaintiff’s

discovery of the JPAS report, and scheduled trial for

October 2017. On September 28, 2017, a formal Order was

entered by the Superior Court [Dkt. No. 74], granting

Plaintiff’s Motion for Reconsideration, denying Defendant’s

Motion for Summary Judgment, and requiring Defendant to

file an Amended Answer.2

C. Removal to Federal Court

Following Judge Harrington’s decision to reinstate

Plaintiff’s defamation claim, Defendant removed the case to

this Court on September 25, 2017. [See Dkt. No. 1].

Defendant argued that because Plaintiff’s defamation claim

was based on statements mandatorily entered into the DoD’s

JPAS system, removal was warranted under the Federal

Officer Removal Statute. Specifically, Defendant contended

that, because it was required to report adverse information

2 Because the September 28, 2017 Order simply formalized Judge

Harrington’s holdings made on the record at oral argument on

September 8, 2017, it is assumed to be binding on the parties,

even though it was not entered until after the case had been

removed to this Court on September 25, 2017.

into JPAS, it was entitled to absolute immunity defense

under federal law. Furthermore, Defendant argued that

removal was timely because it had just learned that the

JPAS Report was central to the defamation claims at the

September 8, 2017 oral argument, a position that Plaintiff

does not dispute. On October 24, 2017, Plaintiff filed a

Motion to Remand [Dkt. No. 5] the case back to state court.

On June 20, 2018, this Court held that Defendant was

entitled to the benefit of the Federal Officer Removal

Statute and that removal was timely. [See Dkt. No. 15].

After the Motion for Remand had been resolved,

Defendant filed an Amended Answer [Dkt. Nos. 19, 20] in

accordance with Judge Harrington’s September 28, 2017

Order. Notably, neither Defendant’s Amended Answer nor the

Final Pre-Trial Order [Dkt. No. 30] included the statute of

limitations affirmative defense to the defamation claim,

which Judge Harrington had already ruled could be presented

at trial. Defendant asserted the statute of limitations

affirmative defense, for the first time following removal,

in its Trial Brief, which was filed less than a month

before trial on February 11, 2019. [See Dkt. No. 38, at

11].

D. Trial and Jury Verdict

During a four-day jury trial, from March 4 through March 7,

2019, Plaintiff presented her case that Defendant (1) violated

NJLAD by terminating Plaintiff in retaliation for her complaints

about discriminatory treatment by her supervisor, Sue Goldberg,

and (2) defamed Plaintiff through the incident report entered

into the JPAS system. In presenting these claims to the jury,

Plaintiff alleged that MSE’s stated reason for her termination

was pre-textual, and that MSE actually terminated Plaintiff in

retaliation for her alleged previous complaints (and threats to

file an EEOC complaint) that Sue Goldberg was discriminating

against Plaintiff on the basis of her Polish national origin.

Plaintiff also alleged that the incident entered into the JPAS

system was knowingly false and defamatory.

At the close of Plaintiff’s case, Defendant moved for

Judgment as a Matter of Law, arguing that Plaintiff’s defamation

claims should not be allowed to proceed to the jury because (1)

they were barred by the statute of limitations, and (2) the

statements in the JPAS Report were entitled to absolute

immunity. The Court reserved judgment on Defendant’s motion and

allowed the jury to consider the defamation claim. The jury

found that Defendant’s statements in the JPAS Report were false

and defamatory, and awarded Plaintiff $3.5 million in damages.

Following the announcement of the verdict, Defendant

renewed its Motion for a Judgment as a Matter of Law pursuant to

Fed. R. Civ. P. 50(b), and moved in the alternative for a New

Trial pursuant to Fed. R. Civ. P. 59(a)(1) or a Remittitur of

the jury award. Meanwhile, Plaintiff requested that the jury

remain empaneled for a trial on punitive damages. In light of

the parties scant briefing on the statute of limitations issue

prior to trial, the Court determined that more briefing was

necessary before deciding the issue. Therefore, pending the

outcome of the Motion for Judgment as a Matter of Law, the Court

discharged the jury and adjourned the trial on punitive damages.

III. LEGAL STANDARD

A motion for judgment as a matter of law may be granted

where “a party has been fully heard on an issue during a jury

trial and the court finds that a reasonable jury would not have

a legally sufficient evidentiary basis to find for the party on

that issue.” Fed. R. Civ. P. 50(a)(1). “While a district court

is permitted to enter judgment as a matter of law at the

conclusion of a trial, when it concludes that the evidence is

legally insufficient, it is not required to do so. To the

contrary, the district courts are, if anything, encouraged to

submit the case to the jury, rather than granting such motions.”

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394,

405 (2006).

If the Court denies or reserves on a motion for judgment as

a matter of law raised during trial, the moving party may renew

that motion post-trial under Fed. R. Civ. P. 50(b). In order to

preserve the right to renew a motion for judgment as a matter of

law, the moving party must raise a Rule 50(a) motion with

“sufficient specificity to put the [nonmovant] on notice” before

the case is submitted to the jury. Williams v. Runyon, 130 F.3d

568, 571–72 (3d Cir. 1997). Rule 50(b) provides that, in

deciding a 50(b) motion, the court may: “(1) allow judgment on

the verdict, if the jury returned a verdict; (2) order a new

trial; or (3) direct the entry of judgment as a matter of law.”

Fed. R. Civ. P. 50(b).

The standard for deciding the renewed motion is the same as

the standard for deciding the motion made at trial. Neville

Chem. Co. v. Union Carbide, 422 F.2d 1205, 1210 n.5 (3d Cir.

1970), cert. denied, 400 U.S. 826 (1970). A Rule 50 motion

“should only be granted if ‘the record is critically deficient

of that minimum quantity of evidence from which a jury might

reasonably afford relief.” Raiczyk v. Ocean County Veterinary

Hospital, 377 F.3d 266, 269 (3d Cir. 2004)(citing Trabal v.

Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir.

2001)). The key “question is not whether there is literally no

evidence supporting the unsuccessful party, but whether there is

evidence upon which a reasonable jury could properly have found

its verdict.” Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir.

2003)(emphasis in original)(quoting Gomez v. Allegheny Health

Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)).

“In making this determination, ‘the court may not weigh the

evidence, determine the credibility of the witnesses, or

substitute its version of the facts for the jury's version.’”

TransWeb, LLC v. 3M Innovative Properties Co., 16 F. Supp. 3d

385, 391–92 (D.N.J. 2014) (quoting Lightning Lube, Inc. v. Witco

Corp., 4 F.3d 1153, 1166 (3d Cir.1993), aff'd, 812 F.3d 1295

(Fed. Cir. 2016)). The Court must “disregard all evidence

favorable to the moving party that the jury is not required to

believe ... [t]hat is ... give credence to the evidence favoring

the nonmovant as well as that evidence supporting the moving

party that is uncontradicted and unimpeached, at least to the

extent that that evidence comes from disinterested witnesses.”

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151

(2000)(citation and internal quotation marks omitted).

IV. DISCUSSION

In its Motion for Judgment as a Matter of Law, Defendant

argues that the jury verdict should be set aside because (1)

Plaintiff’s defamation claim is barred by the statute of

limitations one-year period from publication, see Marino v.

Westfield Board of Education, 2016 WL 2901706, at *5 (D.N.J.

2016)(citing N.J.S.A. § 2A:14-3) and (2) the contents of the

JPAS Report are protected by absolute immunity. In response,

Plaintiff argues, first, that “law of the case” doctrine binds

this Court to Judge Harrington’s decision that the discovery

rule applied to Plaintiff’s defamation claim. Second, Plaintiff

argues that Defendant waived the statute of limitations defense

by failing to assert it in either the Amended Answer or the

Final Pre-Trial Order.

A. Statute of Limitations for Defamation

At trial Plaintiff cited the statements in the JPAS Report

as the lone evidence supporting her defamation claim.3 This is

consistent with what Plaintiff advised the state court as the

basis for her defamation claim. It is undisputed that the JPAS

Report was created by McKenna on January 15, 2013 and then

finalized on May 1, 2013. Plaintiff, however, did not commence

this action until January 6, 2015, over a year and a half after

McKenna finalized the JPAS Report.

With the JPAS Report’s publication date falling outside New

Jersey’s one-year statute of limitations period, Plaintiff

continues to press the same argument before this Court as she

did before Judge Harrington. She argues that her claim was

3 Although Plaintiff had previously contended that her defamation

claim was supported by comments from McKenna to a prospective

employer, by Plaintiff’s own admission, she was unable to

present any admissible evidence at trial to support this

allegation. See Trial Tr., Mar. 6, 2019, at 642:3-16.

nonetheless timely because she did not find out about the JPAS

Report until August 2014. Thus, Plaintiff asserts the discovery

date of August 2014 means that her defamation claim was within

the one-year statute of limitations when her original Complaint

was filed in January 2015. Plaintiff’s argument fails before

this Court and should have failed before the Superior Court.

This Court can find no legal precedent to apply the

discovery rule to a defamation claim in New Jersey, as Plaintiff

has argued for some years now. Judge Harrington previously

allowed Plaintiff’s defamation claim to proceed under a

discovery rule theory. The Third Circuit, however, has

explicitly stated that under New Jersey law, “the ‘discovery

rule’ cannot extend the limitations period for defamation

claims.” O'Donnell v. Simon, 362 F. App'x 300, 305 (3d Cir.

2010)(citing Lawrence v. Bauer Publ'g & Printing Ltd., 78 N.J.

371, 396 A.2d 569, 570 (1979)). Indeed, New Jersey courts have

repeatedly and consistently held that that the discovery rule

cannot, under any circumstances, toll defamation actions. See,

e.g., Nuwave Inv. Corp. v. Hyman Beck & Co., 221 N.J. 495, 500–

01 (2015)(“The statute's clear and unqualified language requires

all libel claims to be made within one year of the date of the

publication. That language cannot be reconciled with the

exception proposed by plaintiffs. In declining to create a

judicial discovery rule, we leave amendment of the statute to

the Legislature”); Burr v. Newark Morning Ledger Co., 2018 WL

1955050, at *2 (N.J. Super. Ct. App. Div. Apr. 26, 2018)(holding

that “recent unambiguous precedent dictates” that the discovery

rule is inapplicable to defamation claims); Sivells v. Sam's

Club, 2017 WL 3151246, at *9, n.12 (D.N.J. July 25, 2017)( “As to

the discovery rule, it may not apply to defamation claims at

all.”).

Second, Plaintiff cannot use the continuing tort doctrine

to restart the statute of limitations each time a potential

employer views the JPAS Report. As noted by the Superior Court

of New Jersey, Appellate Division, “[o]ur courts have never

applied the continuing violation doctrine to defamation claims.”

Roberts v. Mintz, 2016 WL 3981128, at *4 (N.J. Super. Ct. App.

Div. July 26, 2016). Furthermore, application of the continuing

tort doctrine under these circumstances would be at odds with

the single publication rule in defamation cases, which provides

that “a statement posted on the internet is deemed only to be

published once for purposes of the statute of limitations; the

limitations period does not restart every time the post is

viewed.” Id. at *5(citing Churchill v. State, 378 N.J.Super.

471, 478, 876 A.2d 311 (App.Div.2005)).

Based on the facts in this case, the publication date for

statute of limitations purposes was May 1, 2013: the date

McKenna finalized the JPAS Report within the system. As such,

Plaintiff would have needed to assert her defamation claims no

later than May 1, 2014. Under the law, these dates cannot be

tolled because Plaintiff only found out about the report in

August 2014. In short, Plaintiff’s defamation claim was already

too late when she filed her initial pro se Complaint in January

2015.

B. “Law of the Case” Doctrine

Alternatively, Plaintiff argues that this Court should abide

by Judge Harrington’s prior ruling because it has become “law of

the case.” This Court disagrees. The law of the case doctrine

is “an amorphous concept which generally holds that ‘when a

court decides upon a rule of law, that decision should continue

to govern the same issues in subsequent stages in the same

case.’” In re Caterpillar Inc., 67 F. Supp. 3d 663, 669–70

(D.N.J. 2014)(quoting Arizona v. California, 460 U.S. 605, 618

(1983)). As explained by the Supreme Court, however, “[a] court

has the power to revisit prior decisions of its own or of a

coordinate court in any circumstance, although as a rule courts

should be loath to do so in the absence of extraordinary

circumstances such as where the initial decision was clearly

erroneous and would make a manifest injustice.” Christianson v.

Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). The

Third Circuit has recognized several “extraordinary

circumstances” which would permit revisiting a prior decision.

Such circumstances exist where (1) new evidence is available;

(2) a supervening new law has been announced; (3) the order

clarifies or corrects an earlier, ambiguous ruling; and (4)

where a prior ruling, even if unambiguous, might lead to an

unjust result. See In re Pharmacy Benefit Managers Antitrust

Litig., 582 F.3d 432, 439 (3d Cir.2009). Significantly, “the

law of the case doctrine does not restrict a court's power but

rather governs its exercise of discretion.” In re City of Phila.

Litig., 158 F.3d 711, 718 (3d Cir. 1998).

The state court allowed Plaintiff’s defamation claim to

proceed on an erroneous application of the discovery rule.

Moreover, the court compounded the error by ordering that the

defamation claim would proceed to trial. This Court now

exercises its discretion to correct the Superior Court’s clearly

erroneous application of the discovery rule to a defamation

claim, which was precipitated by Plaintiff’s misstatement of the

law. Although the record in the state court action demonstrates

that Defendant objected to the court’s finding, Defendant did

not prevail. The application of the discovery rule to a

defamation claim was “clearly erroneous.” To permit the verdict

to stand under the law of the case doctrine would result in

“manifest injustice.”

C. Waiver of Defense

Plaintiff argues that Defendant’s statute of limitations

defense should be considered waived because Defendant failed to

include it in either its Amended Answer or the Final Pre-Trial

Order. The Court finds this argument unpersuasive, but

certainly questions why Defendant failed to raise this

affirmative defense earlier.4 Indeed, Defendant could have moved

to amend its Amended Answer to include the affirmative defense

even after the issue had been raised before this Court at trial.

See, e.g., Ajax Enters. v. Fay, 2007 WL 766335, at *2 (D.N.J.

Mar. 7, 2007)(noting that “amendments may be made during trial,

after the close of testimony, or even after judgment” as long as

the nonmoving party will not be “unfairly disadvantaged or

deprived of the opportunity to present facts or evidence that it

would have offered”). Defendant now states that “MSE should be

permitted leave to amend and its Answer [] to include the

statute of limitations as a defense,” [Dkt. No. 67, at 3-4], but

4 The Court notes that at the time Defendant filed its Amended

Answer (at the direction of Judge Harrington’s September 28,

2017 Order), Defendant presumably believed, based on Judge

Harrington’s prior holding, that it was precluded from asserting

the statute of limitations affirmative defense until trial. To

that end, Judge Harrington’s ruling would have still been

binding upon Defendant, even though the Amended Answer was being

filed in this Court, because “the orders or judgments entered by

the state court prior to removal should be treated as orders or

judgments entered by the district court.” Tehan v. Disability

Mgmt. Servs., Inc., 111 F. Supp. 2d 542, 547 (D.N.J. 2000).

Defendant has never formally requested this Court’s permission

to do so, pursuant to Local Civil Rule 15.1.

Although it would have been wise for Defendant amend its

Amended Answer, Defendant’s failure to amend is not dispositive.

Under established circuit law precedent, the failure to include

a defense in a responsive pleading does not automatically result

in a waiver. As previously noted by the Third Circuit,

affirmative defenses, which include the statute of limitations,

are not waived if raised at a “pragmatically sufficient time”

with no prejudice to the plaintiff. See Balter v. United States,

172 F. App'x 401, 403 (3d Cir. 2006)(citing Eddy v. VI Water &

Power Authority, 256 F.3d 204, 209 (3d Cir. 2001)). Moreover,

“issues tried by the express or implied consent of the parties

are ‘treated in all respects as if they had been raised in the

pleadings.’” Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir.

1991)(quoting Prinz v. Greate Bay Casino Corp., 705 F.2d 692,

694 (3d Cir. 1983)). Furthermore, even though the statute of

limitations affirmative defense was not asserted in the Final

Pre-Trial Order, “[i]t is well established that departure from

or adherence to the pretrial order is a matter peculiarly within

the discretion of the trial judge.” Beissel v. Pittsburgh & Lake

Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986)(citing Berroyer v.

Hertz, 672 F.2d 334, 338 (3d Cir. 1982)).

As acknowledged by Plaintiff, Defendant has asserted the

statute of limitations defense since the case’s time in the

Superior Court. Plaintiff knew of Defendant’s statute of

limitations objection for almost two years before trial;

Plaintiff cannot now claim to be prejudiced by the assertion of

this defense. Plaintiff was aware of the statute of limitations

defense, but sought to keep the defamation claim alive based on

a misapplication of the discovery rule. In actuality, by

arguing the law of the case, Plaintiff undermines her argument

that she had insufficient notice of Defendant’s statute of

limitations defense:

MS. BLAND-TULL: Yes, your Honor. And, Judge, I know

that your Honor may not be bound by the previous

ruling of the Superior Court judge in this case, but

this has all been the subject of a motion, and the

defendant's motion was denied with respect to these

issues in Superior Court. So I understand we are in a

different jurisdiction now, but I would respectfully

argue that there is an issue of the law of the case

that applies to this at this time.

THE COURT: The judge ruled that the statute of

limitations had not transpired on the defamation

claim–

MS. BLAND-TULL: That is correct, Judge.

THE COURT: -- based on the pleading itself.

MS. BLAND-TULL: Correct, Judge.

Trial Tr., Mar. 6, 2019, at 557:11-24 (emphasis added).

On the one hand Plaintiff seeks to prevent Defendant from

raising the statute of limitations defense (under law of the

case) and on the other hand Plaintiff contends Defendant failed

to raise it. Certainly by raising the statute of limitations

defense at the September 2017 oral argument on the Motion for

Summary Judgment and Motion for Reconsideration, Defendant put

Plaintiff on notice. A defense that was thoroughly litigated

between the parties cannot be said to have been waived. See

Stafford v. E.I. Dupont De Nemours, 27 F. App'x 137, 140 (3d

Cir. 2002)(holding that when one party met the other’s “statute

of limitations defense head-on in the District Court, without

objection. He had a full and fair opportunity to present his

arguments, and he will not now be heard to raise an objection”);

see also Balter, 172 F. App'x at 403 (holding that district

court had properly considered statute of limitations defense

even though it had not been raised in initial motion to dismiss

or summary judgment motion, where “defendants raised the statute

of limitations defense in their objections to the Magistrate

Judge's first Report and Recommendation, and again on remand

from the District Court in their answer and second motion to

dismiss and for summary judgment” and “[plaintiff] was afforded

an opportunity to meet that defense and to present his

arguments”).

Although Defendant would have been prudent to raise this

issue to the Court before trial, this Court is somewhat

reluctant to fault Defendant for failing to do so when Judge

Harrington had previously ruled the issue was to be tried before

a jury. See Superior Court Transcript, at 36:24-37:1(Judge

Harrington stating that he “may not let the jury consider” the

defamation claim, but that he was “not preventing them from

putting together a case to bring to the jury on defamation”).

Indeed, it seems that Defendant operated under the belief that

Judge Harrington’s ruling prevented it from raising the statute

of limitations defense again until Plaintiff rested her case at

trial. To that end, Defendant repeatedly emphasized to this

Court that it was moving for judgment as a matter of law on

statute of limitations grounds “now that the record is closed.”

See Trial Tr., Mar. 7, 2019, at 681:23-684:17 (Defendant arguing

that “your Honor is ruling a closed record in this court. Judge

Harrington did not rule on a Rule 50 motion. The record is now

closed, your Honor is not bound by law of the case”). These

factors all lead this Court to conclude that Defendant

interpreted Judge Harrington’s decision to preclude Defendant

from reasserting the statute of limitations defense until a Rule

50 motion at trial.

In this Court’s final analysis, it would be perverse to

allow Plaintiff to benefit from her own misstatements of the law

that caused this legal debacle in the first place. The law

could not be clearer: there is no discovery rule exception for

defamation claims. The party who was prejudiced was Defendant

who was forced to litigate a time-barred claim for two

additional years.5 Therefore, this Court exercises its

discretion to rule upon Defendant’s statute of limitations

affirmative defense.

D. Absolute Immunity

Throughout the course of this litigation, Defendant has

leaned heavily on an absolute immunity defense to the defamation

claim. Specifically, Defendant argued that the defamation claim

fails because MSE is entitled to absolute immunity for

statements made in the JPAS Report. As noted by Defendant,

“courts have granted official immunity to private actors in

defamation actions resulting from reports prepared by private

industry for government agencies.” Gulati v. Zuckerman, 723 F.

Supp. 353, 356 (E.D. Pa. 1989)(internal citations omitted). To

this point, MSE argues that government regulations obligated MSE

to report “adverse information” about Plaintiff’s fitness to

hold a security clearance, and that it had no choice but to put

the relevant information in the JPAS Report. For that reason,

Defendant claims that any information provided in the JPAS

Report is entirely privileged. Perplexingly, Defendant viewed a

5 With the benefit of hindsight, of course it is easy to

criticize Defendant for not raising the statute of limitations

defense before this Court well before trial. However, the Court

sees little point in doing so now.

finding of absolute immunity as a forgone conclusion. This

Court, however, disagrees.

Without binding support from the Third Circuit, Defendant

cites to the Fourth Circuit’s decision in Becker v. Philco

Corp., 372 F.2d 771 (4th Cir. 1967). In Becker, two individuals

sued their former employer, a defense contractor, for submitting

an allegedly defamatory report to DoD officials, under

regulations which required the contractor to submit a report “of

any loss, compromise, or suspected compromise of classified

information.” Id. at 773. Ultimately, the Fourth Circuit held

that the employer was absolutely immune from liability for the

alleged defamation in the report. The Fourth Circuit stated:

“[T]he company has no discretion and is mandatorily

ordered to report the suspicion immediately. There is no

question but that the system of reporting was valid. The

obligation could scarcely be couched in more imperious

or exacting language. It embraces both true and false

accusations, both substantial and insubstantial

suggestions, perhaps encompassing even rumors. It

demands investigation of them by the company and a report

of it to the Defense Department. That is precisely what

Philco did. Faithful to the contract, it could have done

no less.”

Id. at 774 (emphasis added). Although the Becker decision sets

a precedent for absolute immunity, even when the information

reported includes rumors, this Court finds that the regulation

at issue in this case is substantially different from the one

examined by the Becker court over fifty years ago. As outlined

in Section 3 of the National Industrial Security Program

Operating Manual, titled “Reporting Requirements,” MSE is bound

to abide by the following guidelines:

1-302 Reports to be Submitted to the CSA

a. Adverse Information. Contractors shall report adverse

information coming to their attention concerning any of

their cleared employees. Reports based on rumor or

innuendo should not be made. The subsequent termination

of employment of an employee does not obviate the

requirement to submit this report. If the individual is

employed on a Federal installation, the contractor shall

furnish a copy of the report and its final disposition

to the commander or head of the installation.

NOTE: In two court cases, Becker v. Philco and Taglia v.

Philco (389 U.S. 979, 88 S.Ct. 408, 19 L.Ed.2d 473), the

U.S. Court of Appeals for the 4th Circuit decided on

February 6, 1967, that a contractor is not liable for

defamation of an employee because of reports made to the

Government under the requirements of this Manual and its

previous versions.

NISPOM, Section 3, at 1-302(a)(emphasis added). As further

clarified in Appendix C of NISPOM, “Adverse Information” is

defined as “any information that adversely reflects on the

integrity or character of a cleared employee, that suggests that

his or her ability to safeguard classified information may be

impaired, or that his or her access to classified information

clearly may not be in the best interests of national security.”

Whereas the Becker court dealt with a reporting requirement

that embraced “both true and false accusations,” NISPOM clearly

instructs not to report information “based on rumor or

innuendo.” Therefore, to the extent reports within JPAS are

immune from suit, an issue this Court need not decide, that

immunity is qualified, rather than absolute: it does not cover

reports based on rumor or innuendo. To that end, whether a

report is based on rumor or innuendo would be a factual finding

for a jury.6

Following the verdict, this Court asked the parties if they

wished to ask the jury a special interrogatory about this issue.

Unfortunately, as outlined in the exchange below, the parties

precluded the Court from asking the jury if they found that the

JPAS Report was based on rumor or innuendo:

THE COURT: The only question is that the legal -- let

me just -- I want to make sure I'm not excusing the

jury and then regret it later. The legal argument that

the defendant is making is that they have a legal

obligation to report a threat. Right?

MR. LEAHY: Correct, your Honor.

THE COURT: If the jury found that a threat was never

made does your legal position stand? And should I ask

the jury whether they found -- should I issue a

special interrogatory asking them whether or not they

found that a threat was a made?

(Short pause.)

6 The Court notes that Defendant relies upon Mission1st Grp.,

Inc. v. Filak, 2010 WL 4974549, at *2 (D.N.J. Dec. 2, 2010) to

supports its absolute immunity defense. Indeed, in that case,

the court found that an allegedly false report about a cleared

employee was entitled to absolute privilege because it was made

pursuant to a governmentally imposed duty. Id. However, this

Court declines to follow that decision, as it did not consider

whether the allegedly false report was premised upon “rumor or

innuendo,” as instructed by the plain text of NISPOM.

MR. LEAHY: I was -- what we have just discussed, your

Honor, is I don't know that it would change the

defense because --

THE COURT: Because?

MR. LEAHY: -- as you said, anything that is reported

to JPAS is absolutely privileged. At the same time if

they found that the threat was -- if they found that a

threat was in the made --

THE COURT: But if it were false -- if they found that

a threat was never made and MSE made it up that would

not be privileged, would it?

MR. LEAHY: It would still be privileged, your Honor,

based on the Mission First case. I mean, the privilege

is absolute and holds regardless of whether the

information was rightly reported. And that's quoting

from Mission First which was quoting from Becker. So

that is the law of the land, your Honor.

THE COURT: If it was made reckless does that matter?

MR. LEAHY: It does not matter, your Honor, it is

absolute privilege.

MS. BLAND-TULL: Your Honor, the NISPOM regulations

upon which the case is based specifically say that the

immunity does not apply to rumor, innuendo and -- and

I forget the other language, but language to the

effect of statements that have not been corroborated

or don't have a trustworthiness.

THE COURT: So do I present the issue of qualified

immunity to the jury? Is it not a jury's finding

whether or not it was --

MR. LEAHY: It is not, your Honor, because this is not

a qualified immunity issue, this is absolute privilege

issue and so that is a strict legal one, not a jury

issue.

THE COURT: Well, I guess what I would say is the

following: If the parties are incorrect and there

should be a question that I should be posing to the

jury and I find that my failure to pose the question

to the jury prevents me from deciding the issue of

this privilege and I have to order a new trial, I

will. I just am not going to lose the jury -- so I

guess the parties need to be confident about it.

Neither one of you want me to issue a special

interrogatory, I'm just cautiously saying to the

parties that if in the end I determine I should have

and I haven't it would necessitate a new trial. But

that will be what it will be I guess.

Trial Tr., Mar. 7, 2019, at 784:16-786:20.

Although the jury’s verdict on the defamation claim

indicates that the jury found that information in the JPAS

Report was false, it does not tell the Court whether the jury

viewed the information as “based on rumor or innuendo.” There

are many reasons why the jury could have found that Defendant’s

report was false, without being based on rumor or innuendo. For

example, the jury could have believed that the JPAS Report

contained false information about Plaintiff, but that Defendant

had a good faith reason for mistakenly accepting the information

as factual. However, this Court cannot speculate as to the

jury’s state of mind. With the parties unwilling to send a

special interrogatory to the jury, this Court is unable to reach

that issue. If this Court did not set aside the defamation

verdict on statute of limitations grounds, a new trial would

have been necessary to properly address the immunity issue.

Therefore, in accordance with Fed. R. Civ. P. 50(c)(1), the

Court will conditionally grant Defendant’s alternative motion

for a new trial.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Judgment

as a Matter of Law shall be GRANTED and the jury verdict on the

defamation claim will be set aside. The Court will direct the

entry of (1) judgment on the jury’s verdict on the NJLAD

retaliation claim and (2) judgment as a matter of law in favor

of Defendant on the defamation claim.

DATED: July 9, 2019

s/Renee Marie Bumb

RENÉE MARIE BUMB

United States District Judge