ELFAR v. TOWNSHIP OF HOLMDEL

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NEDAL ELFAR

Plaintiff,

Civil Action No. 22-5367 (RK) (JBD)

Vv.

MEMORANDUM OPINION

TOWNSHIP OF HOLMDEL, MATTHEW

MENOSKY, MICHAEL SASSO, and JOHN

MIODUSZEWSKI,

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court upon Plaintiff's Motion for Partial Summary

Judgment against Defendant Township of Holmdel on collateral estoppel grounds. (ECF No. 32.)

Plaintiff filed the instant motion and moving brief on January 6, 2023, Defendant filed its

opposition on February 8, 2023 (ECF No. 37), and Plaintiff replied on March 1, 2023 (ECF No.

42), The Court has carefully considered the record and parties’ submissions and decides the matter

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment is DENIED.

I. BACKGROUND !

On July 4, 2016 at approximately 2:54 a.m., Plaintiffs vehicle was lawfully stopped in

Holmdel, New Jersey by two Holmdel police officers, individual Defendants Matthew Menosky

' The facts in this Opinion are taken from the record, including the following sources: (1) Plaintiff's

Statement of Material Facts (“Pl.’s SMF”) (ECF No. 32-2); (2) Defendant’s Response to Plaintiff's

Statement of Material Facts (“Def.’s SMF”) (ECF No. 37); (3) De novo appeal August 3, 2022 Decision of

Hon. Lisa Thornton of the Superior Court of New Jersey (“De Novo Decision”), included as an exhibit to

Defendant’s brief (ECF No. 37-2); (4) Transcript of Municipal Court Proceeding from February 13, 2017

and Michael Sasso. (Pl.’s SMF 4 3; Def.’s SMF § 3.) Over the course of the approximately 20-

minute encounter that followed, the officers asked Plaintiff several questions (Pl.’s SMF 4 4; Def.’s

SMF 4), peered through Plaintiff's car windows (Pl.’s SMF 4 6; Def.’s SMF § 6), had Plaintiff

perform field sobriety tests (Pl.’s SMF 9{ 14-17; Def.’s SMF 14-17), and searched Plaintiff's

vehicle (Pl.’s SMF 4 13; Def.’s SMF 413). The search produced two pill bottles containing

marijuana as well as a pipe with marijuana residue. (P1.’s SMF §§ 7-10, 13; Def.’s SMF § 12.)

Except for a 14-second period when the microphone was muted, the officers’ entire interaction

with Plaintiff was recorded on the police vehicle’s dashboard video and audio recording system

(“MVR”). (Pls SMF { 30; Def.’s SMF § 30.) Plaintiff was arrested and charged with state law

violations related to driving while impaired. (De Novo Decision at 1; First Am. Compl. (“FAC”)

19, ECF No. 1.)

Plaintiff was convicted twice in separate Holmdel municipal court proceedings and then

acquitted on de novo appeal to the New Jersey Superior Court, Law Division. At each of the two

municipal court proceedings, the State was represented by a Holmdel municipal prosecutor. (2017

Mun. Ct. Tr., ECF No. 37-2 at 29; 2018 Mun. Ct. Tr., ECF No. 37-3 at 4.) At the de novo appeal,

the State was represented by the Monmouth County Prosecutor’s Office. (De Novo Decision at 1.)

At Plaintiff's February 13, 2017 municipal court proceeding, the Honorable Mary Casey,

J.M.C. heard live testimony from Officers Sasso and Menosky. (2017 Mun. Ct. Tr., ECF No. 37-

2 at 29-37.) At the suppression hearing portion of the proceeding, Plaintiff argued that no probable

cause supported the officers’ warrantless search of his vehicle that produced the marijuana. Citing

the officers’ testimony that they smelled marijuana upon approaching and that Plaintiff appeared

(“2017 Mun. Ct. Tr.”), included as an exhibit to Defendant’s brief (ECF No. 37-2); and (5) Transcript of

Municipal Court Proceedings held on December 7 and 14, 2018 (2018 Mun. Ct. Tr.”), included as an

exhibit to Defendant’s brief (ECF No. 37-3). Pincites to the preceding transcripts reference the page number

of the party’s filed exhibit, not the page number of the transcript itself.

intoxicated in their interactions, Judge Casey found the State had met its burden to establish an

exception to the warrant requirement. (/d. at 37.)

At the conclusion of the trial, Judge Casey found Plaintiff guilty of four state violations:

driving while intoxicated (N.J.S.A. 39:4-50); operating a motor vehicle in possession of a

controlled dangerous substance (N.J.S.A. 39:4-49.1); driving in excess of the speed limit (N.J.S.A.

39:4-98.10); and possessing less than 50 grams of marijuana (N.J.S.A. 2C:35-10a(4)). Ud. at 38—

48; Def.’s SMF § 2; De Novo Decision at 2.) Plaintiff filed a motion for a new trial based on newly

discovered evidence, which was granted. (De Novo Decision at 2.)

Plaintiff's second municipal court trial was conducted before the Honorable Thomas

Smith, J.M.C. approximately twenty-two (22) months after the first trial. During the evidentiary

phase, Judge Smith heard testimony from both officers on the limited subject of why the MVR

microphone had been disabled for 14 seconds. (2018 Mun. Ct. Tr., ECF No. 37-3 at 32-41.)

Plaintiff argued that disabling the microphone violated department policy and that whatever the

officers said to each other during those 14 seconds would undercut the prosecution’s probable

cause arguments. Notwithstanding Plaintiff's argument, Judge Smith found that muting the

microphone was proper during Plaintiff’s stop. (/d. at 15.) Relying on the newly taken testimony

and the transcripts from the previous trial, Judge Smith again found Plaintiff guilty on identical

charges. (De Novo Decision at 2.)

Plaintiff appealed and was granted a trial de novo in New Jersey Superior Court pursuant

to N.J. Ct. R. 3:23 et seg. Ud. at 2.) On de novo appeal, New Jersey Superior Court Judge Lisa P.

Thornton, A.J.S.C., reviewed the transcripts and record from the proceedings below and issued a

written decision with factual and legal findings. Although Judge Thornton did not see or hear any

live testimony, she nonetheless found the officers not credible. Accordingly, “[w]hile both officers

testified at trial that they immediately detected a strong smell of “burnt marijuana,’ the State failed

to prove this fact by a preponderance of the evidence at the suppression hearing” and therefore the

officers “had no probable cause to search the vehicle and seize the prescription bottles in the car

or the trunk.” Ud. at 19-20.) The court further found the officers’ testimony of Plaintiff's apparent

intoxication suspect. Judge Thornton concluded that the state failed to prove a valid exception to

the warrant requirement or that Plaintiff was intoxicated beyond a reasonable doubt. (/d. at 20.)

“Without the smell of burnt marijuana that would indicate defendant smoked marijuana in close

proximity to the stop and any other signs of physical impairment, something more would be

necessary to persuade the court that defendant is guilty beyond a reasonable doubt.” (Ud. at 21.)

Plaintiff was acquitted on all charges. (/d. at 22.)

On September 1, 2022, Plaintiff filed a federal suit against Officers Menosky and Sasso,

as well as against former Holmdel police chief John Mioduszewski and the Township of Holmdel.

(ECF No. 1.) On December 2, 2022, Plaintiff filed an amended complaint. (ECF No. 22.) Plaintiff

claims Defendant Holmdel is liable under 42 U.S.C. § 1983 for a policy, custom, and practice of

unconstitutional searches, arrests, and charges, and for failing to properly train its police officers.

(FAC ff 70-73.)

On January 6, 2023, Plaintiff filed the instant Motion for Partial Summary Judgment

against Defendant Holmdel seeking to preclude Defendant from contesting issues decided in the

state proceeding. (ECF No. 32.)

2 Defendants jointly moved to dismiss on January 5, 2023. (ECF No. 30.) On March 12, 2023, Plaintiff

moved to file a second amended complaint to add Count II. (ECF No. 44-1.) Several days later, the Court

administratively terminated Defendants’ motion pending decision on Plaintiffs motion to file an amended

complaint. (ECF No. 48.)

IL. LEGAL STANDARD

A party seeking summary judgment must show “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

fact is “material” when a dispute over that fact “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that

are irrelevant or unnecessary will not be counted.” /d. A material fact raises a “genuine” dispute

“af the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989).

In deciding a summary judgment motion, a court “may not make credibility determinations

or engage in any weighing of the evidence; instead, the non-moving party’s evidence ‘is to be

believed and all justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co.,

358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see also InterVest, Inc. □□□

Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003) (“[T]he court must view the facts and any

reasonable inferences drawn therefrom in the light most favorable to the party opposing summary

judgment.”).

Ill. DISCUSSION

The doctrine of collateral estoppel, also called issue preclusion, “bars relitigation of any

issue [] actually determined in a prior action, generally between the same parties, involving a

different claim or cause of action.” State v. Gonzalez, 380 A.2d 1128, 1131 (N.J. 1977). Under

New Jersey law, the party asserting collateral estoppel must show: “(1) The issue to be precluded

is identical to the issue decided in the previous proceeding . . . (2) the issue was actually litigated

in the prior action ... (3) the court in the prior proceeding issued a final judgment on the merits □

... (4) the determination of the issue was essential to prior judgment... and (5) the party against

whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.”

In Re Dawson, 641 A.2d 1026, 1034-35 (N.J. 1994).?

The Court’s inquiry does not end with these five elements. Collateral estoppel is an

equitable judicial doctrine and as such is “not to be applied if there are sufficient countervailing

interests.” Matter of Coruzzi, 472 A.2d 546, 551 (NJ. 1984) (court not required to give collateral

estoppel effect to the factual determination behind a judge’s bribery conviction given the “unique

nature of [the] proceedings”). The Court will not preclude a party litigating an issue when it would

be “unfair to do so.” Allen v. V & A Bros., 26 A.3d 430, 444 (N.J. 2011) (citations and quotations

omitted), While New Jersey’s collateral estoppel jurisprudence does not mandate that courts allow

equitable considerations to “overcome the ordinary preclusive effects of prior judgments,” Gannon

v. Am. Home Prod., Inc., 48 A.3d 1094, 1107 (N.J. 2012), courts regularly rely on fairness

considerations to inform the collateral estoppel analysis. Olivieri v. Y.M.F. Carpet, Inc., 897 A.2d

1003, 1011 (N.J. 2006).

Courts are especially sensitive to fairness considerations when a plaintiff seeks to

collaterally estop a defendant from litigating an issue decided in a prior proceeding — known as

“offensive” collateral estoppel. See Mann vy. Estate of Meyers, 61 F. Supp. 3d 508, 522—23 (D.N.J.

2014); see also Smith v. Borough of Dumore, 516 F. App’x 194, 199 (3d Cir. 2013) (recognizing

“a unique potential for unfairness” when a plaintiff asserts non-mutual offensive collateral

estoppel). Under these circumstances, the Court has “broad discretion” to decide whether collateral

estoppel applies. /d. (quoting Jean Alexander Cosms., Inc. y. L’Oreal USA, Inc., 458 F.3d 244,

248-49 (3d Cir. 2006) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979))).

3 A federal court asked to give preclusive effect to a state court judgment applies that state’s law. See

Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999),

Cc

Here, Plaintiff seeks to preclude Defendant from contesting the unconstitutionality of his

search, arrest, and prosecution. Plaintiff argues that this fact was established at the state de novo

appeal, and that these issues are identical to what Plaintiff will have to prove against Defendant.

(PI. Br. in Supp., ECF No. 32-1 at 10-11.) Plaintiff devotes much of his brief to the fifth element

of collateral estoppel, that Defendant was party to or in privity with a party to the prior proceedings.

Plaintiff contends that even if Defendant was not party to the prior proceedings, Defendant was

virtually represented since the municipal prosecutor was appointed by Defendant and represented

the municipality’ interest in prosecuting Plaintiff. Gd at 13-14.) Plaintiff also argues that

Defendant participated in the trial through “oversight and control” of the Holmdel police officers

who initiated the criminal case against Plaintiff and testified at Plaintiff's municipal court trials.

(id. at 13.)

Defendant disagrees that it should be bound by the result of Plaintiff's de novo appeal.

Defendant argues that the facts Plaintiff cites in order to show Defendant’s privity with the

prosecuting authority — the Holmdel municipal prosecutor’s contract with Defendant,

Defendant’s oversight of its police department, the Holmdel officers’ testimony in the municipal

court proceedings — are “superficial” or “ministerial” acts that do not evidence control over the

_ prosecution. (Def.’s Br. in Opp’n at 14-17, ECF No. 37-1.) Defendant maintains that the municipal

prosecutor is an actor of state, not municipal, government, subject to exclusive state control in

enforcing state law. Ud. at 19-22.) Defendant also claims that other equitable considerations

militate against applying collateral estoppel in this case. For one, Defendant claims that the court

at the de novo appeal made erroneous factual findings and legal conclusions that should bar

granting the state proceeding preclusive effect. Ud. at 28-34.) Similarly, Defendant argues that the

inconsistencies among the results of the three state proceedings counsel against applying collateral

estoppel. Ud. at 35-36.)

For the reasons that follow, the Court finds that Plaintiffs failure to sufficiently establish

the elements of collateral estoppel, along with additional equitable considerations, militate against

applying collateral estoppel in this instance.

A. ELEMENTS OF COLLATERAL ESTOPPEL

Of the five elements of collateral estoppel, the parties primarily dispute whether Defendant

was in privity with a party to the state proceedings.*

In deciding whether two parties are in privity, “the New Jersey Supreme Court has

suggested that the determinative question . . . is whether one party was the ‘virtual representative’

of the other, in the sense that the former could control the arguments of the latter.” Evans v. City

of Newark, No. 14-120, 2023 WL 2535283, at *12 (D.N.J. Mar. 16, 2023) (citing State v. K.P.S.,

112 A.3d 579, 587 (N.J. 2015)); see also Zirger v. Gen. Acc. Ins. Co., 676 A.2d 1065, 1071 (N.J.

1996) (“A relationship is usually considered ‘close enough’ only when the party is a virtual

representative of the non-party, or when the non-party actually controls the litigation.” (quoting

Collins v. EI. DuPont de Nemours & Co., 34 F.3d 172, 176 Gd Cir. 1994))). To find privity, there

must be “such an identification of interest between the two [parties] as to represent the same legal

right.” Zirger, 676 A.2d at 1071 (citation omitted). Ultimately, the question of privity is whether

the party has “had his day in court on an issue.” McAndrew v. Mularchuk, 183 A.2d 74 (N.J. 1962).

* Plaintiff asserts in passing that Defendant was party to the state proceedings, so it need not necessarily

establish privity in order to meet the fifth element. (ECF No. 42 at 6.) The Court finds that Defendant was

not party to the prior proceedings. Plaintiff faced prior prosecution for violating New Jersey state law, and

the party prosecuting the case in municipal court was not Defendant but the State of New Jersey. Gonzalez,

380 A.2d at 1134 (acknowledging “the State” as the party to a prior criminal proceeding for collateral

estoppel purposes). That they are different parties is underscored by the fact that the State is immune from

section 1983 liability while Defendant is not. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66

(1989).

Although superficially tempting to bind Defendant to the results of proceedings partially

litigated by the Holmdel municipal prosecutor, Plaintiff has failed to establish that the State of

New Jersey was Defendant’s “virtual representative” at the state proceedings. While municipal

prosecutors are empowered to represent both the municipality and the State, N.J. Stat. Ann.

§ 2B:25-5(a), when enforcing state law, they represent the State exclusively. See Matter of Segal,

617 A.2d 238, 244 (N.J. 1992) (referring to “the State” as the municipal prosecutor’s “‘client” in

the enforcement of state law). Defendant’s control over the prior state litigation appears even

further attenuated because the Monmouth County Prosecutor’s Office, not the Holmdel municipal

prosecutor, represented the State at the de novo appeal. (ECF No. 37-1 at 4); see also N.J. Ct. R.

3:23-9,

Plaintiff presents no evidence to support the proposition that Defendant could or did control

the prosecution through the Holmdel municipal prosecutor. In determining whether a party has

control sufficient to establish privity, a court must assess whether the party exercises “effective

choice as to the legal theories and proofs to be advanced [on] behalf of the party to the action... .”

Allen, 26 A.3d at 445 (quoting Restatement (Second) of Judgments § 39 cmt. C (Am. Law Inst. _

1982)). Plaintiff offers no evidence that Defendant either exerted or had the ability to exert

influence over the litigation decisions. Rather, the entity making prosecutorial decisions at the

municipal court proceedings was the municipal prosecutor, who, as discussed supra, acts

exclusively on behalf of the State. See Matter of Segal, 617 A.2d at 244; see also State v. Prickett,

572 A.2d 1166, 1169 (N.J. Super. Ct. App. Div. 1990) (“Preparation of the State’s case is clearly

a prosecutorial function and is a responsibility that cannot be shifted to others. ... Thus, it is the

municipal prosecutor who ... does all else necessary to prepare and present the State’s cases in

the municipal court.”).

With no evidence establishing control, the Court cannot merely assume that the State of

New Jersey and the Township of Holmdel share sufficient interests such that the State acted as

Defendant’s virtual representative. The absence of privity between Defendant and the State is

underscored by their divergent interests in the state proceedings’ outcome. A victorious municipal

court defendant’s subsequent section 1983 action poses no danger to the State. See Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 provides a federal forum

to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants

who seek a remedy against a State... .”). Defendant enjoys no such immunity. /d. at 58 (affirming

that municipalities are “persons” subject to liability under section 1983 (citing Monell vy. New York

City Dep’t of Social Services, 436 U.S. 658, 690 (U.S. 1978)). These disparate consequences for

the State and Defendant as a result of a state acquittal and favorable suppression rulings preclude

finding an “identification of interest” supporting privity here. Zirger, 676 A.2d at 1071; see also

Sadruddin v. City of Newark, 34 F. Supp. 2d 923, 928 (D.N.J. 1999) (“However, privity requires

that the parties have such a connection of interest in the litigation and the subject matter that reason

and justice precludes a relitigation of the issues.”).°

Plaintiffs remaining arguments regarding control are unpersuasive. The fact that the

municipal prosecutor is appointed by the municipality and is paid by the municipality “is of no []

consequence” to the question of control. Kershenblatt, 624 A.2d at 1046 (citing Kagan v.

Caroselli, 153 A.2d 17, 22 (N.J. 1959)); see also Restatement (Second) of Judgments § 39 cmt. C

(Am. Law Inst. 1982) (“It is not sufficient, however, that the person merely ... supplied counsel

* These divergent interests may in large part explain the procedural posture of this action, in which the State

chose not to appeal while Defendant — at least here — strongly contests the legal and factual validity of

the proceedings. (ECF No. 37-1 at 28-35). If Defendant were in the driver’s seat of the prosecution, it likely

have appealed the suppression ruling rather than risk being subsequently bound in a follow-on federal

to the party... .”); see also Criss v. Cosgrove, No. 04-2244, 2007 WL 542228, at *5 (D.N.J. Feb.

16, 2007). Nor can Plaintiff establish control sufficient to show privity through the participation

by Holmdel police officers in the proceedings by forwarding evidence to the municipal prosecutor

or testifying at two of the earlier proceedings. See Allen, 26 A.3d at 446 (testimony by party’s

employee in prior proceeding was insufficient to establish privity because “there is no evidence in

the record to suggest that [the witness employee] exercised any control over the litigation”).°

B. FAIRNESS CONSIDERATIONS

Even had Plaintiff established privity and the five-element test were met, fairness

considerations raised by the unique posture of the case and nature of the state proceedings counsel

against preclusion.

New Jersey’s collateral estoppel analysis requires the Court to examine the circumstances

of the prior and instant proceedings to determine whether preclusion would be fair. A court should

refuse to apply collateral estoppel when a party “lacked full and fair opportunity to litigate the

issue in the first action or [] other circumstances justify affording him an opportunity to relitigate

the issue.” Zirger, 676 A.2d at 1071 (quotation omitted); see also Kortenhaus vy. Eli Lilly & Co.,

549 A.2d 437, 439 (N.J. Super. Ct. App. Div. 1988) (“The application of offensive collateral

§ Plaintiff relies heavily on State v. Rodriguez, 324 A.2d 911 (N.J. Super. Ct. App. Div. 1974) as the “closest

precedent” under New Jersey law to the facts here. (ECF No. 32-1 at 14; ECF No. 42 at 2-4.) However,

Rodriguez is inapposite because it addresses a unique question of preclusion based on since-repealed New

Jersey statutes governing forfeiture proceedings following criminal proceeding and is silent as to the

equitable doctrine of collateral estoppel. Rodriguez, 324 A.2d at 912. In any event, any discussion of

preclusion against the state is dicta because the criminal charges against the Rodriguez defendant were

dropped by the prosecutor, not dismissed. Jd. at 62. Plaintiff's reliance on dicta from a fifty-year-old

inapplicable case does not assist the Court in “predict[ing] how the state’s highest court would decide were

it confronted with the problem.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661 (d Cir. 1980). The

out-of-state authorities Plaintiff relies on likewise do not persuade the Court on the correct application of

New Jersey law. See, e.g., People v. Sims, 651 P.2d 321, 333 (Cal. 1982), superseded on other grounds as

recognized by People v. Preston, 43 Cal. App. 4th 450, 458 (Cal. App. 1996) (preclusion sought of ruling

from administrative agency, not criminal court); Wuerfel v. City of Seattle, No. C03-3660JLR, 2006 WL

27207 (W.D. Wash. Jan. 5, 2006) (preclusion sought from ruling on violations of municipal not state law).

1t~4

estoppel is a discretionary matter for the court and as a rule of efficiency should not be applied

unless the court is fully satisfied with its fairness.”).

Binding Defendant in a federal civil action to the results of a municipal criminal proceeding

it did not control triggers fairness concerns given the vastly different stakes for Defendant in each

proceeding. Assuming arguendo that Defendant held some sway in the state prosecution, the

strategic allocation of resources to prosecute these minor drug and motor vehicle offenses, as well

as to whether to appeal the de novo reversal, would clearly be different if the municipality knew

its arguments could be precluded in a later civil rights claim. The sheer volume of municipal court

matters renders it axiomatic that a municipal prosecutor’s preparation for the types of cases heard

in municipal court is, by necessity, far more limited than the preparation required for a trial on

indictable charges in Superior Court. See Matter of Segal, 617 A.2d 238, 245 (N.J. 1992)

(acknowledging the “limited pretrial preparation routinely undertaken by some municipal

prosecutors” and that “much of the subject matter in controversy in the municipal courts is minor

and, in such cases, informal practices should continue” (quoting State v. Holup, 601 A.2d 777 (N.J.

Super. Ct. App. Div. 1992)). Furthermore, many municipal prosecutors, including the Holmdel

municipal prosecutor, only work part-time. Jn re Opinion 662, 626 A.2d at 1087-88; cf Matter of

Thomson, 494 A.2d 1022, 1023 (N.J. 1985) (describing a municipal court’s practice of only

hearing cases on certain days when the municipal prosecutor and public defender were present).’

Given these limitations, Plaintiffs prosecution in municipal court does not suggest that Defendant

“had [its] day in court” on the constitutionality of the Holmdel officers’ actions, K.P.S., 112 A.3d

at 585 (quoting McAndrew v. Mularchuk, 183 A.2d 74, 77 (N.J. 1962)).

7 The Court takes judicial notice of the fact that the Holmdel municipal court sits one day per week, with a

part-time prosecutor and a part-time judge. See Fed. R. Evid. 201(b); Werner v. Werner, 267 F.3d 288, 295

(3d Cir. 2001). Indeed, Plaintiff's second municipal court trial occurred over two days one-week apart in

December 2018. See generally (2018 Mun. Ct. Tr.)

The inconsistencies between the two municipal court judges’ findings on the critical issue

of the officers’ credibility and the court in the de novo appeal further cast doubt on the fairness of

collateral estoppel here. The Restatement of Judgements, which the New Jersey Supreme Court

has turned to for estoppel principles, see Allen, 26 A.3d at 445, counsels against the application of

collateral estoppel in the face of inconsistent judgments. See Restatement (Second) of Judgments

§ 39 cmt. C (Am. Law Inst. 1982) (“Issue preclusion may also be denied when the determination

in the prior action is inconsistent with another determination of the same issue.”’). Here, the judges

in the municipal court proceedings and the judge in the de novo appeal reached different factual

and legal conclusions. The municipal court judges who took live testimony from Officers Menosky

and Sasso credited the officers’ accounts of smelling marijuana in Plaintiff's car and whether

Plaintiff appeared intoxicated during their interaction. From this, the municipal court judges

concluded that the officers’ search was constitutional. After reviewing the static transcripts from

the municipal court proceedings, the judge at the de novo appeal found the officers’ accounts

incredible and held the search unconstitutional. The conflict between these “clearly inconsistent

prior determinations,” ADP, LLC v. Rafferty, 923 F.3d 113, 124 n.10 (3d Cir. 2019) (reading New

Jersey law), likewise counsels against preclusion.

In arguing that there is no inconsistency among the state proceedings, Plaintiff claims that

when a lower court is reversed, collateral estoppel is determined by the holding of the appellate

court, regardless of the result below — here the de novo appellate court. (ECF No. 42 at 6 (citing

Leyse v. Bank of Am., Nat'l Ass’n, 538 F. App’x 156, 159 (3d Cir. 2013)). While true, appellate

courts normally “defer to trial courts’ credibility findings that are often influenced by matters such

as observations of the character and demeanor of witnesses and common human experience that

are not transmitted by the record.” State v. Locurto, 724 A.2d 234, 240 (N.J. 1999) (citations

omitted). Deference to credibility determinations is “more compelling” under New Jersey’s “two-

court rule,” which holds that appellate courts “ordinarily should not undertake to alter concurrent

findings of facts and credibility determinations made by two lower courts absent a very obvious

and exceptional showing of error.” /d. (citation omitted); see also State v. Reece, 117 A.3d 1235,

1242 (N.J. 2015).

Here, the unique nature of New Jersey’s de novo appeal mechanism cautions against

treating the de novo court like a normal appellate court for estoppel purposes. The New Jersey

Superior Court on de novo appeal does not take new testimony. See N.J. Ct. R. 3:23-8 (in a de

novo appeal, “the court may permit the record to be supplemented for the limited purpose of

correcting a legal error in the proceedings below.”’). Rather, the court makes its own factual and

legal findings, and “giv[es] due, although not necessarily controlling, regard to the opportunity of

the magistrate to judge the credibility of the witnesses.” State v. Johnson, 199 A.2d 809, 815 (N.J.

1964). This creates an uncommon situation in which a nominally appellate court may disregard

credibility determinations made by a trial court.

This is exactly what happened here. At the municipal court proceedings, Judge Casey and

Judge Smith heard in-person testimony from Officer Sasso and Officer Menosky. Each judge heard

both witnesses testify before them, evaluated their demeanor, body language and substance of their

testimony, and found credible the officers’ testimony that they smelled marijuana and that Plaintiff

appeared intoxicated. (Feb. 13, 2017 Tr., ECF No. 37-2 at 29-37.) At Plaintiff's de novo appeal,

the court reviewed the static record and implicitly disagreed, finding the officers not credible. (Ud.

at 19-20.) Under these unique circumstances, the Court finds that granting collateral estoppel

would offend principles of fairness, and, as a result, exercises its discretion to deny Plaintiff's

motion for the reasons stated herein.

IV. CONCLUSION

For the foregoing reasons, and for other good cause shown, Plaintiff's Motion for Partial

Summary Judgment (ECF No. 32) is DENIED. An approptiate Order will follow. _

Ropirr KinscH — —

UNITED STATES DISTRICT JUDGE

Dated: July 6, 2023