# BRUNETTA v. EGG HARBOR TOWNSHIP SCHOOL DISTRICT

> District Court, D. New Jersey · August 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10655703

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655703

## How later opinions describe it (automated extraction)

- 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
- 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”

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655703. Public record. Not legal advice.