Opinion

Thomas Gage v. Borough of Hopatcong

Court
Court of Appeals for the Third Circuit
Filed
Sep 10, 2026
Status
Unpublished
Cited by
0 cases

The opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 26-1099

__________

THOMAS I. GAGE,

Appellant

v.

BOROUGH OF HOPATCONG;

JOHN K. RUSCHKE, PE;

WILLIAM T. DONEGAN, SR.;

PETER A. FICO, Municipal Judge;

MORRIS COUNTY MUNICIPAL JIF, Insurer;

MUNICIPAL EXCESS LIABILITY JIF, Insurer

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2:25-cv-3696)

District Judge: Honorable Brian R. Martinotti

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 1, 2026

Before: BIBAS, CHUNG, and BOVE, Circuit Judges

(Opinion filed September 10, 2026)

___________

OPINION*

___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

PER CURIAM

Thomas I. Gage, proceeding pro se, appeals from orders of the United States

District Court for the District of New Jersey granting the defendants’ motions to dismiss

and denying his motion for reconsideration of that order.1 For the following reasons, we

will affirm.

This is at least the third action that Gage has brought in federal court related to his

applications to construct a single-family dwelling on property that he owns in Hopatcong,

New Jersey. The Hopatcong Borough Land Use Board and the Borough’s engineer, John

K. Ruschke, repeatedly deemed Gage’s applications “incomplete.” Later, however, the

Board deemed the application complete, contingent upon, among other things, a letter of

interpretation from the New Jersey Department of Environmental Protection (NJDEP)

confirming that any land developments would not disturb protected wetlands. Although

Gage sought such a letter, the NJDEP determined that “State open waters, freshwater

wetlands and their associated transition areas are present on and adjacent to the

referenced property.” Gage v. N.J. Dep’t of Env’t Prot., 2022 WL 254599, at *2 (D.N.J.

Jan. 27, 2022). In 2021 and 2024, Hopatcong Borough Zoning Officer William E.

Donegan, III, inspected the property. As a result of those inspections, the Borough issued

Gage notices for alleged violations of zoning ordinances. Municipal Court Judge Peter

1

The District Court’s orders also denied Gage’s motions for default judgment, as well as

his requests for recusal and transfer of venue. In addition, the District Court granted

attorneys’ fees and costs to one of the defendants.

2

A. Fico presided over some of the zoning violation proceedings in 2024 and 2025. (ECF

1, at 12, 13-14 of 19.)

Meanwhile, in May 2021, Gage filed a complaint against Ruschke and the NJDEP,

raising claims related to his inability to obtain permission to develop his land. Both

defendants filed motions to dismiss. The District Court granted those motions, holding

that Ruschke was entitled to qualified immunity and that it lacked jurisdiction over the

claims against the NJDEP pursuant to the state’s Eleventh Amendment sovereign

immunity. Gage, 2022 WL 254599, at *2-3. Gage filed a motion for reconsideration,

which the District Court denied, warning Gage that “any future frivolous filings may be

met with sua sponte sanctions, including payment of opposing counsels’ fees.” Gage v.

N.J. Dep't of Env’t Prot., 2022 WL 4540834, at *1 n.1 (D.N.J. Sept. 28, 2022).

In March 2022, Gage filed a second complaint against Ruschke and the NJDEP,

among others, raising similar claims.2 The District Court again granted the defendants’

motions to dismiss, holding that the claims against Ruschke were barred by res judicata

and that the NJDEP was entitled to sovereign immunity. Gage v. N.J. Dep’t of Env’t

Prot., 2024 WL 1076675, at *4-5 (D.N.J. Mar. 12, 2024). The District Court noted that

“this is [Gage’s] second strike [and that] … [i]f there is a third strike, the Court will not

hesitate to impose sanctions.” Id. at *7 n.9.

2

The action was originally filed in the United States District Court for the District of

Columbia, which transferred the case to the District of New Jersey.

3

Gage filed the underlying action in May 2025, raising claims against Ruschke,

Donegan, the Borough of Hopatcong, and Judge Fico.3 He alleged that Ruschke and the

Borough violated his constitutional rights by denying his land development applications,

that the Borough had “taken” his property without just compensation, and that the

Borough, Donegan, and Judge Fico conspired to pursue fraudulent zoning violations.

Gage filed a motion for default judgment, asserting that the Borough did not file a timely

answer to the complaint. The defendants filed motions to dismiss, arguing that Gage’s

claims were barred by res judicata. The District Court agreed and, by order entered

October 6, 2025, granted the motions to dismiss, and denied Gage’s motion for default

judgment. At Ruschke’s urging, the District Court also concluded that Gage is “a

vexatious litigant and is obligated to pay Ruschke an award of attorneys’ fees for the

costs of defending this action.”

On October 9, 2025, Gage filed a motion for reconsideration, to recuse the District

Court judge, and to transfer venue to the District Court for the District of Columbia. He

also filed a nearly identical motion for default judgment and a motion for an extension of

time to appeal. Ruschke submitted a certification of fees and costs. The District Court

denied Gage’s motions and granted Ruschke’s application for attorneys’ fees and costs in

the amount of $9718.50. Gage timely appealed.

3

Gage also named two companies that allegedly provide insurance to the Borough. But,

as the District Court accurately noted, Gage raised no individual causes of action against

either company.

4

We have jurisdiction pursuant to 28 U.S.C. § 1291,4 and we may affirm on any

basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per

curiam).

We exercise plenary review over the District Court’s dismissal on res judicata

grounds. See Erie Indemnity Co. v. Stephenson, 157 F.4th 265, 276-77 (3d Cir. 2025).

The elements of federal-law res judicata include “(1) a final judgment on the merits in a

prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on

the same cause of action.” Marmon Coal Co. v. Dir., Off. of Workers’ Comp. Programs,

726 F.3d 387, 394 (3d Cir. 2013) (citation omitted). Applying these principles, we agree

that res judicata bars the claims based on the denial of Gage’s land development

applications, including his assertion that the Borough had “taken” his property without

just compensation. First, the District Court’s 2022 decision granting the motions to

dismiss filed by Ruschke and the NJDEP is a final judgment on the merits. See Papera v.

Pa. Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir. 2020). Second, Ruschke is

named in both cases and two of the new defendants named in the underlying suit –

Donegan and the Borough of Hopatcong – are in privity with him. Indeed, both Ruschke

and Donegal worked for the Borough, and Gage alleged that all three defendants

conspired to deprive him of his rights. See Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d

4

Because Gage’s appeal from the denial of his timely post-judgment motion “brings up

the underlying judgment for review,” we can review both the District Court’s order

granting the defendants’ motions to dismiss and its order denying Gage’s motion for

reconsideration and awarding attorneys’ fees and costs to Ruschke. See McAlister v.

Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992).

5

Cir. 1972) (explaining that privity exists when there is a “close or significant relationship

between successive defendants,” including when they are alleged to be co-conspirators)

(citing Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950)); Lubrizol Corp. v.

Exxon Corp., 871 F.2d 1279, 1288 (5th Cir. 1989) (noting that most federal circuits have

concluded that employer-employee relationships may ground a claim preclusion defense).

Finally, both the prior and underlying complaints are based on causes of action stemming

from the dispute over Gage’s ability to develop his property. See Churchill v. Star

Enters., 183 F.3d 184, 195 (3d Cir. 1999) (focusing on the similarity of the actions, and

concluding that res judicata applies if the new allegations “seek[] recovery for essentially

the same wrongful conduct” or a “single course of wrongful conduct”); see also Sheridan

v. NGK Metals Corp., 609 F.3d 239, 261 (3d Cir. 2010) (looking not to “the specific legal

theory invoked,” but to “the essential similarity of the underlying events giving rise to the

various legal claims” to determine if the lawsuits are based on the same cause of action

(citation omitted)).

Res judicata, however, does not bar the claims stemming from the zoning

violations because they arose after Gage filed the two prior lawsuits described above.

Nevertheless, the claims lack merit. Gage’s vague allegation that the defendants pursued

fraudulent zoning violations was insufficient to state plausible conspiracy or due process

claims. See D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,

1377 (3d Cir. 1992) (en banc) (affirming a dismissal of a conspiracy claim because of a

failure “to assert any facts from which any type of conspiratorial agreement . . . can be

6

inferred”); DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592,

597 (3d Cir. 1995) (explaining that “a state provides constitutionally adequate procedural

due process when it provides reasonable remedies to rectify a legal error by a local

administrative body”); Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004)

(stating that the “misconduct alleged here does not rise sufficiently above that at issue in

a normal zoning dispute to pass the ‘shocks the conscience test’”).

We also conclude that the District Court did not abuse its discretion in denying

Gage’s requests for recusal and his motions for default judgment.5 In his request for

recusal, Gage alleged that Judge Martinotti “pick[ed] [a] side [o]n behalf of all

Defendants” and “expressed an ‘appearance of partiality.’” (ECF 35, at 12, 14 of 21.)

But those assertions were premised on adverse rulings, which, without more, do not

establish that Judge Martinotti had a personal bias or prejudice against Gage, nor do they

provide a basis upon which to reasonably question the judge’s impartiality. See

Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000); Liteky

v. United States, 510 U.S. 540, 555 (1994) (adverse rulings alone generally do not

constitute a sufficient basis for holding that a judge’s impartiality is in doubt).

Furthermore, the District Court properly denied Gage’s motions for default judgment

because, contrary to Gage’s belief, the attorneys who entered an appearance on behalf of

5

Gage’s opening brief does not challenge the District Court’s rejection of the claims

against Judge Fico, the denial of his request for a change of venue, or the denial of his

motion for reconsideration. Therefore, we will not consider those issues. See In re

Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (noting that arguments not developed in an

appellant’s opening brief are forfeited).

7

the Borough filed an answer within the time extended by the District Court. See United

States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984) (stating that “this

court does not favor entry of defaults or default judgments”).

Gage also challenges the District Court’s award of attorneys’ fees and costs to

Ruschke on the basis that “[t]here is no record which proves that . . . [he] has paid any

attorneys’ fees or that he hired [an] attorney e[i]ther.” Appellant’s Br., at 19 of 40. The

record belies Gage’s claim. Ruschke’s attorney entered an appearance. And after

concluding that sanctions were warranted because Gage is a “vexatious litigant,” the

District Court directed Ruschke’s attorney to submit “an itemized petition for reasonable

attorneys’ fees with supporting materials . . . within 20 days.” (ECF 30, at 21 of 22.)

Ruschke’s attorney complied with that order, filing a certification that explained the

hours worked and the rates claimed, along with a detailed description of the time

expended on each litigation task. (ECF 33.) Gage did not contest that submission. He

has thus provided no basis to set aside the District Court’s order.

In his brief, and in documents captioned “Judicial Notice,” Gage seeks to raise

new claims. In particular, he contends that counsel for the Borough were not authorized

to represent their client. Gage also references the New Jersey Tort Claims Act, trespass

and negligence, and the New Jersey Open Public Meetings Act. Because Gage did not

raise these claims in his complaint, we will not consider them for the first time on appeal.

See Orie v. Dist. Att’y Allegheny Cnty., 946 F.3d 187, 195 (3d Cir. 2019). With respect

to Gage’s request to expand the record on appeal, we note that our review is generally

8

limited to the record that was before the District Court. See Acumed LLC v. Advanced

Surgical Servs., Inc., 561 F.3d 199, 226 (3d Cir. 2009). None of the exceptional

circumstances that might allow Gage to supplement the record on appeal are present here.

Id.

For the foregoing reasons, we will affirm the District Court’s judgment.6

6

Gage’s motion for mediation and his motion to file a supplemental appendix are denied.

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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