BRUNETTA v. EGG HARBOR TOWNSHIP SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

TIMOTHY BRUNETTA,

Plaintiff,

Civil No. 22-7511 (RMB/EAP)

v.

EGG HARBOR TOWNSHIP OPINION

SCHOOL DISTRICT, et al.,

Defendants.

APPEARANCES:

Timothy Brunetta

2708 Atlantic Avenue

Wildwood, New Jersey 08260

Plaintiff, pro se

Marshall Dennehey Warner Coleman & Goggin

By: Ashley Lauren Toth

15000 Midlantic Drive, Suite 200

Mount Laurel, New Jersey 08054

On behalf of Defendant Egg Harbor Township School District

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon the Motion to Dismiss filed by

Defendant Egg Harbor Township School District (the “School District” or

“Defendant”) pursuant to Federal Rule of Civil Procedure 12(b)(6). [Mot. to Dismiss,

Docket No. 5 (“Motion”); Br. in Support of Mot. to Dismiss, Docket No. 5-3 (“Def.’s

Br.”).] Pro se Plaintiff Timothy Brunetta (“Plaintiff”) opposes the Motion. [Br. in

Opp’n to Mot. to Dismiss, Docket No. 8 (“Pl.’s Opp’n”).] No oral argument was

heard pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1(b).

For the reasons set forth below, the Motion will be GRANTED, and the Complaint

will be DISMISSED, WITH PREJUDICE.

I. INTRODUCTION

This civil action is Plaintiff’s second bite at the apple in this dispute regarding

the School District’s termination of Plaintiff’s employment in February 2022. Plaintiff

contends that the School District violated his civil rights under the Constitution and

laws of the United States when it required his compliance with a policy it adopted

during the COVID-19 Public Health Emergency that directed certain employees to

either provide proof of vaccination or submit to weekly testing. As discussed below,

because Plaintiff has already litigated his claim of wrongful termination based on the

same underlying conduct, the Court will dismiss Plaintiff’s claims here under New

Jersey’s entire controversy doctrine.

* * *

The Court only recites those facts that are necessary to resolve the pending

Motion:

In August 2017, the School District hired Plaintiff as Director of Facilities.

[Compl. ¶ 1, Docket No. 1.] He was an employee in good standing in March 2020

when the COVID-19 pandemic began in the State of New Jersey. [Id. ¶¶ 2–3.] Given

the nature of his role, Plaintiff worked on site, as he could not work remotely. [Id. ¶¶

4–7.] In August 2021, months after vaccines became publicly available, New Jersey

Governor Philip Murphy issued Executive Order No. 253, which directed New Jersey

schools to maintain a policy requiring certain “covered employees,” like Plaintiff, to

(i) provide proof of vaccination or (ii) submit to COVID-19 testing at least once per

week.1 [Id. ¶¶ 14, 16.] In accordance with this order, the School District adopted such

a policy and distributed letters to staff prior to the start of the 2021 school year that

advised employees of the new requirements and directed unvaccinated employees to

submit to weekly COVID-19 testing. [Id. ¶¶ 16–18.] The School District informed

employees that weekly testing would be considered an accommodation from the

mandatory vaccination component of the new policy. [Id. ¶ 17.]

For whatever reason, Plaintiff did not become vaccinated at this time, [id. ¶ 22],

and after furnishing the School District with his objections to the COVID-19 policy,

he refused to submit to weekly testing as well, [id. ¶¶ 23–28]. Therefore, on November

29, 2021, the School District informed Plaintiff that he could not return to work due

to his vaccination status and refusal to submit to weekly testing. [Id. ¶ 29.] While

Plaintiff remained at home, he apparently was required to use accrued personal time

1 A copy of Executive Order No. 253 may be found here:

https://nj.gov/infobank/eo/056murphy/pdf/EO-253.pdf. After terminating the

Public Health Emergency effective March 7, 2022, on August 15, 2022 Governor

Murphy rescinded Executive Order No. 253. See Executive Order Nos. 292,

https://www.nj.gov/infobank/eo/056murphy/pdf/EO-292.pdf, & 302,

https://www.nj.gov/infobank/eo/056murphy/pdf/EO-302.pdf. Pursuant to those

orders, however, school districts may continue to maintain policies requiring covered

employees to provide proof of vaccination or submit to weekly COVID-19 testing

requirements. Executive Order No. 302, ¶ 2.

off in accordance with School District policy. [Id. ¶¶ 30–31.] Still, Plaintiff maintained

his objections to the COVID-19 policy, and on February 22, 2022, the School District

terminated his employment as a result of his failure to comply. [Id. ¶ 36.]

On June 10, 2022, Plaintiff filed suit in the Superior Court of New Jersey, Law

Division – Atlantic County, asserting claims of retaliation under the New Jersey Law

Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. (“NJLAD”), and the New

Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1, et seq.

(“NJCEPA”), (the “Underlying Litigation”).2 [State Ct. Compl., Docket No. 5-5.]

His claims there were premised on his belief that a mandatory vaccinate-or-test policy

was unlawful and discriminatory in nature and that his refusal to comply with such

policy was a protected activity under the state laws. [Id. ¶¶ 37–39, 42–45.] Moreover,

he alleged that the School District retaliated against him in violation of the NJLAD

and NJCEPA by requiring that he remain at home and then by terminating his

employment. [Id.] On November 1, 2022, the state court dismissed Plaintiff’s claims

for failure to state a viable cause of action. [Docket No. 5-6.] Plaintiff did not file an

amended complaint thereafter. [See State Ct. Docket, Docket No. 5-7.] The

Underlying Litigation was ultimately closed. [Id.]

2 The matter is Brunetta v. Egg Harbor Twp. School Dist., Case No. ATL-L-1645-

22 (N.J. Super. Ct. Law Div. filed June 10, 2022). The Court observes that Plaintiff’s

Complaint here is nearly identical to the complaint filed in the Underlying Litigation,

where Plaintiff was represented by counsel.

On December 27, 2022, Plaintiff filed the instant action in this Court. [See

generally Docket.] Here, Plaintiff alleges that the School District’s actions violated the

Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution (Count I) as well as “rights, privileges, and immunities secured under the

United States Constitution and laws,” including 42 U.S.C. § 1983 (Count II), 42

U.S.C. § 1985 (Count III), and 42 U.S.C. § 1986 (Count IV). [Compl. ¶¶ 39–53,

Docket No. 1.] Plaintiff also appears to assert these claims against John Doe

Defendants and ABC Entity Defendants. [See id.] Plaintiff seeks reinstatement,

compensatory damages, and punitive damages. [Id.]

On January 20, 2023, the School District filed the pending Motion pursuant to

Federal Rule of Civil Procedure 12(b)(6) arguing that Plaintiff’s claims are barred by

New Jersey’s entire controversy doctrine and, if not, that they lack a sufficiently

alleged factual basis to proceed. [Def.’s Br. 4–10.] In response, Plaintiff argues that

the Motion should be denied, and he focuses his Opposition on the efficacy of vaccines

in preventing infection and/or transmission of COVID-19, which he submits is

questionable. [See generally Pl.’s Opp’n.] Plaintiff’s Opposition does not respond

directly to either of the School District’s arguments. [See id.] As the Motion is fully

briefed, it is ripe for adjudication.

II. JURISDICTION

The Court exercises subject matter jurisdiction over Plaintiff’s claims pursuant

to 28 U.S.C. § 1331 because they arise under the Constitution and laws of the United

States.

III. LEGAL STANDARD

When considering a motion to dismiss for failure to state a claim upon which

relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must

accept all well-pleaded allegations in the complaint as true and view them in the light

most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It

is well-settled that a pleading is sufficient if it contains “a short and plain statement of

the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (alteration in original) (internal citations omitted) (first citing

Conley v. Gibson, 355 U.S. 41, 47 (1957); then citing Sanjuan v. Am. Bd. of Psychiatry &

Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v. Allain, 478

U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must take three steps.

First, the court must “tak[e] note of the elements a plaintiff must plead to

state a claim.” Second, the court should identify allegations that,

“because they are no more than conclusions, are not entitled to the

assumption of truth.” Third, “whe[n] there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations in original) (internal

citations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009)). A

court may “generally consider only the allegations contained in the complaint, exhibits

attached to the complaint[,] and matters of public record.” Schmidt v. Skolas, 770 F.3d

241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,

998 F.2d 1192, 1196 (3d Cir. 1993)).

A district court, in weighing a motion to dismiss, asks “not whether a plaintiff

will ultimately prevail but whether the claimant is entitled to offer evidence to support

the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the

pleading standard for ‘all civil actions[.]’ ”); Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts’

standard that applied to federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to

relief that is plausible on its face.’ ” Malleus, 641 F.3d at 563 (quoting Twombly, 550

U.S. at 570).

IV. DISCUSSION

Defendant’s principal argument in support of its Motion is that Plaintiff’s claims

are barred by the entire controversy doctrine. [Def.’s Br. 4–8.] Alternatively, it

contends that Plaintiff has failed to set forth a sufficient factual basis to support each

of his claims. [Id. at 8–10.] Because the entire controversy doctrine is fully dispositive

of this matter, the Court limits its analysis to whether preclusion of Plaintiff’s claims

is warranted on this basis alone. See, e.g., Collas v. Wells Fargo Bank, N.A., 2018 WL

6499706, at *2 (D.N.J. Dec. 11, 2018) (Salas, J.) (“Because the [c]ourt rules that all of

[p]laintiff’s claims are barred by the entire controversy doctrine, it need not address

[d]efendant’s other arguments.”).

The “entire controversy doctrine” is New Jersey’s “ ‘specific, and idiosyncratic,

application of traditional res judicata principles.’ ” Ricketti v. Barry, 775 F.3d 611, 613

(3d Cir. 2015) (quoting Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 886) (3d

Cir. 1997)). Embodying the judgment that “adjudication of a legal controversy should

occur in one litigation in only one court,” the doctrine requires that all parties to a

litigation “present in that proceeding all of their claims and defenses that are related to

the underlying controversy.” Cogdell v. Hosp. Ctr. at Orange, 560 A.2d 1169, 1172 (N.J.

1989) (citation omitted). Stated differently, the doctrine applies to preclude

subsequently asserted claims by a party where they “ ‘arise from related facts or the

same transaction or series of transactions’ ” as the previously asserted claims. Wadeer

v. N.J. Mfrs. Ins. Co., 110 A.3d 19, 27 (N.J. 2015) (quoting DiTrolio v. Antiles, 662 A.2d

494, 502 (N.J. 1995)); see also N.J. Ct. R. 4:30A (“Non-joinder of claims required to be

joined by the entire controversy doctrine shall result in the preclusion of the omitted

claims.”). The goals of the doctrine are to avoid piecemeal decisions, promote judicial

efficiency, and assure fairness to all parties with a material interest in an action.

Wadeer, 110 A.3d at 27; Olds v. Donnelly, 696 A.2d 633, 637 (N.J. 1997); DiTrolio, 662

A.2d at 502; Cogdell, 560 A.2d at 1173.

For the entire controversy doctrine to apply, courts must ensure that the party

against whom the doctrine is asserted had a “ ‘a fair and reasonable opportunity to

have fully litigated [its] claim in the original action.’ ” Wadeer, 110 A.3d at 27 (quoting

DiTrolio, 662 A.2d at 505). If the claim had not yet accrued or was unknown, the

doctrine should not be applied. Id. (citing DiTrolio, 662 A.2d at 505). Application of

the equitable doctrine is “ ‘left to judicial discretion based on the factual circumstances

of individual cases.’ ” Bank Leumi USA v. Kloss, 233 A.3d 536, 541 (N.J. 2020) (quoting

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 203 A.3d 133,

146–47 (N.J. 2019)). “A court should not preclude a claim under the entire

controversy doctrine if such a remedy would be unfair in the totality of the

circumstances and would not promote the doctrine’s objectives of conclusive

determinations, party fairness, and judicial economy and efficiency.” Dimitrakopoulos,

203 A.3d at 150.

Just as in New Jersey state courts, the entire controversy doctrine applies in

federal courts “where there was a previous state-court action involving the same

transaction.” Bennun v. Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991) (citing

O’Shea v. Amoco Oil Co., 886 F.2d 584, 590–94 (3d Cir. 1989)); see also Paramount

Aviation Corp. v. Agusta, 178 F.3d 132, 141 (3d Cir. 1999) (explaining that “a federal

court deciding a federal cause of action is bound by the entire controversy doctrine

when determining the effect of a prior New Jersey state[-]court judgment”). Like its

“blood relative[]” res judicata, the entire controversy doctrine is an affirmative defense

that can be addressed on a motion to dismiss pursuant to Rule 12(b)(6), provided that

it is “apparent on the face of the complaint.” Rycoline Prods., 109 F.3d at 886. Still, in

making this determination, courts are not precluded from taking notice of matters of

public record, Schmidt, 770 F.3d at 249, such as the state-court judgment and the

plaintiff’s pleading, Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 280 & n.52 (3d Cir.

2016) (collecting cases).

In consideration of the foregoing principles, the Third Circuit recently

summarized the elements required to establish New Jersey’s entire controversy

doctrine as follows: “(1) the claims against the different parties arise from related facts

or the same transaction, (2) the first proceeding produced a final judgment, and (3) the

party had a fair and reasonable opportunity to have fully litigated [its] [subsequent]

claim[s] in the original action.” Crisafulli v. Branchburg Twp., 2023 WL 3845304, at *2

(3d Cir. June 6, 2023) (internal citations and quotation marks omitted).

Here, these conditions are clearly satisfied; the entire controversy doctrine

applies to preclude Plaintiff’s federal claims. First, Plaintiff’s claims are inextricably

linked to the same set of operative facts as in his state-court action. [Compare Compl.

¶¶ 1–36, Docket No. 1, with State Ct. Compl. ¶¶ 1–35, Docket No. 5-5.] In the

Underlying Litigation, Plaintiff sued the same party—the School District—for

retaliation under the NJLAD and NJCEPA regarding the same underlying conduct—

implementation of a vaccinate-or-test policy per Executive Order No. 253 that resulted

in Plaintiff’s termination for failure to comply. [State Ct. Compl. ¶¶ 23–35.] Similarly,

in the above-captioned action, Plaintiff alleges the same conduct, [Compl. ¶¶ 17–36],

and claims that the School District subjected him to unequal treatment and otherwise

deprived him of “rights, privileges, and immunities under the United States

Constitution and laws” in some unspecified way, [id. ¶¶ 39–53]. He further claims,

without explanation, that the School District engaged in a conspiracy to deprive him

of his constitutional rights. [Id. ¶¶ 46–53.] Therefore, because Plaintiff’s subsequently

asserted claims here arose from the same facts as the Underlying Litigation, the entire

controversy doctrine applies, see DiTrolio, 662 A.2d at 504 (“the determinative

consideration is whether distinct claims are aspects of a single larger controversy

because they arise from interrelated facts”); his claims thus should have been raised in

his original action. See Rodrigues v. Wells Fargo Bank, N.A., 751 F. App’x 312, 316–17

(3d Cir. 2018) (affirming use of doctrine to preclude claims asserted against banks that

“could have and should have been included in [plaintiff’s] state-court action against

those defendants”).

Second, the Underlying Litigation culminated in a final decision. On

November 1, 2022, the state court dismissed Plaintiff’s complaint without prejudice.

[State Ct. Order, Docket No. 5-6.3] Plaintiff did not file an amended complaint

3 The state court observed as follows:

It is clear to this [c]ourt, this Plaintiff complained of and opposed the

Defendant’s implementation and enforcement of the Governor’s

Executive Order [No.] 253. The [c]ourt finds that is not protected activity

or a viable cause of action under NJLAD.

. . .

The [c]ourt finds Plaintiff’s belief that “Defendant’s testing requirements

were unlawful and in violation of law and public policy and numerous

other federal and state agencies” unreasonable.

. . .

Plaintiff alleges in Count II he complained about the District’s

implementation and enforcement of Executive Order [No.] 253. This is

not a [NJ]CEPA violation.

[State Ct. Order 13–14, Docket No. 5-6.]

thereafter. [See State Ct. Docket, Docket No. 5-7 (exhibit dated Jan. 19, 2023).]

Instead, he initiated the instant litigation in this Court on December 27, 2022. [See

generally Docket.] As a result of Plaintiff’s conduct, the state-court docket was closed,

and the state court’s dismissal order became a final decision, which this Court

construes—in the totality of the circumstances—as a final adjudication on the merits.

See Hoffman, 837 F.3d at 279 & n.49 (explaining that when a plaintiff fails to amend

his complaint following a dismissal without prejudice within the time provided but

subsequently files an identical action in another court, he evinces an intention to

“stand on his complaint”—thereby converting the dismissal into a final decision).4

Accordingly, the entire controversy doctrine is properly invoked here. See Rycoline

Prods., 109 F.3d at 888–89 (explaining that the doctrine “does not preclude the

initiation of a second litigation before the first action has been concluded”).

Third, Plaintiff “had a fair and reasonable opportunity to have fully litigated

[his] claim[s] in the original action.” DiTrolio, 662 A.2d at 505 (citation and quotation

4 Though the state court’s dismissal order was initially entered without

prejudice, construing the decision as a final adjudication on the merits makes sense

under these circumstances. Where a second action is filed in another forum to

manipulate the system or to forum shop, New Jersey courts have applied the entire

controversy doctrine to mandate dismissal of the second action—even where the first

action remains pending. See, e.g., J-M Mfg. Co. v. Phillips & Cohen, LLP, 129 A.3d 342,

349–50 (N.J. Super. Ct. App. Div. 2015) (noting that while the entire controversy

doctrine ordinarily does not require dismissing a second action while the first action is

pending, it should not be mechanistically applied; rather, courts should carefully

examine the interests at stake to achieve a just result). Finding that Plaintiff clearly

sought another forum in which to renew his generalized objections to the vaccinate-

or-test policy after he encountered an adverse result in the first forum, this Court

engages in the same exercise as in J-M Mfg. Co. to preclude relitigating this matter.

marks omitted). Assuming that Plaintiff could, in fact, set forth well-pleaded claims

under the Equal Protection Clause, other unspecified provisions of the United States

Constitution, and 42 U.S.C. §§ 1983, 1985(3), & 1986, the Court concludes that such

claims would have been available to him at the time he sued in state court.5 Thus, it

is not unfair to require preclusion of Plaintiff’s federal claims now where he had

sufficient information and opportunity to assert such claims earlier. See DiTrolio, 662

A.2d at 505. Additionally, the Court finds no reason to conclude that the peculiar

nature of the claims prevented their assertion in the original action, see Wadeer, 110

A.3d at 30 (explaining that because bad faith claim continued throughout the course

of the underlying litigation, fairness permitted such claim to be asserted as a separate

and independent claim in later action), or required adjudication in a federal forum, see

Heir v. Del. River Port Auth., 218 F. Supp. 2d 627, 633–38 (D.N.J. 2002) (Irenas, J.)

(explaining that fairness considerations required application of doctrine to plaintiff’s

unconstitutional takings claim because plaintiff chose not to avail itself of the available

New Jersey forum; a federal forum was not required). Finally, in any case, Plaintiff

5 Although the Court does not reach the issue of whether Plaintiff has set forth

sufficient facts to satisfy the Twombly/Iqbal standard, the Court does not hesitate to

observe that Plaintiff has exceptionally little to say about the basis for each of his legal

claims. For example, he appears to assert that the School District engaged in a

conspiracy to deprive him of his constitutional rights in violation of 42 U.S.C. §

1985(3), [Compl. ¶¶ 46–49], but he fails to identify what action, in particular, deprived

him of the equal protection of law (or a right, privilege or immunity under the

Constitution) or the two or more individuals who allegedly conspired against him.

Thus, the Court does not assume that Plaintiff’s claims would have proven meritorious

in the original action, only that they would have been appropriately raised at that time.

fails to raise any genuine equitable argument to prevent application of the doctrine.

[See generally Pl.’s Opp’n.]

Accordingly, because Plaintiff’s claims arise from the same set of operative facts

as his original suit against the School District, the Underlying Litigation resulted in a

final decision on the merits, and Plaintiff had a fair and reasonable opportunity to

assert his federal claims in the original action (but chose not to), the Court will apply

the entire controversy doctrine and dismiss Plaintiff’s Complaint with prejudice.6 See

Wadeer, 110 A.3d at 27; DiTrolio, 662 A.2d at 502; Rycoline Prods., 109 F.3d at 888–89.

V. CONCLUSION

For the reasons expressed above, the Court will GRANT Defendant’s Motion

and DISMISS, WITH PREJUDICE, all claims asserted by Plaintiff. An

accompanying Order shall issue.

August 16, 2023 s/Renée Marie Bumb

Date Renée Marie Bumb

Chief United States District Judge

6 Because the Court will dismiss Plaintiff’s claims against the School District

based on the entire controversy doctrine, the Court determines that there is no reason

not to dismiss the claims asserted against the John Doe and ABC Entity Defendants

for the same reason as well. See FED. R. CIV. P. 21 (providing that district court may,

at any time, add or drop a party on just terms).