Petition for Writ of Certiorari — Kaye v. Coleman
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Supreme Court, U8.
(.) 3 2
96 ZI2SNV 419%,
ana PFFICE OFTHE CLERK
In The
Supreme Court of the United States
October Term, 1996
*
JOHN KAYE, Individually, and in his capacity as
Monmouth County Prosecutor; THE COUNTY
PROSECUTOR’S OFFICE OF THE COUNTY OF
MONMOUTH; JOHN DOES 1-100; JANE DOES 1-100
THE COUNTY OF MONMOUTH,
Intervenor in District Court,
Petitioners,
BARBARA COLEMAN,
Respondent.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
a
PETITION FOR A WRIT OF CERTIORARI
+
Matcoitm V. CARTON *ARLIN M. ADAms
Monmouth County Counsel Nancy WINKELMAN
Attorney for the Attorneys for John Kaye
County of Monmouth S
CHNADER HARRISON
CARTON & FACCONE Seca, & Lewis
514 Garfield Avenue 1600 Market Street
Avon, New Jersey 07712 Suite 3600
(908) 776-7777 Philadelphia, Pennsylvania
19103
*Counsel of Record (215) 751-2000
15 0 A
QUESTIONS PRESENTED FOR REVIEW
Whether the Third Circuit’s decision imposing com-
pensatory and punitive damages against a public
entity that was not a party to the litigation violates
due process and conflicts with this Court’s prece-
dents, including Richards v. Jefferson County, Ala., 116
S. Ct. 1761 (1996).
Whether the Third Circuit’s decision imposing com-
pensatory and punitive damages against a public
entity based on conduct that the entity cannot control,
change, prevent, or affect in any way violates due
process and conflicts with this Court’s precedents,
including BMW of North America, Inc. v. Gore, 116 S.
Ct. 1589 (1996).
Whether the Third Circuit violated the principles of
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), by disre-
garding the holding of the New Jersey Supreme Court
on a question of state law and instead substituting its
own interpretation of the law.
Whether a plaintiff in a section 1983 case can recover
substantial damages, both compensatory and puni-
tive, for emotional distress based solely on her own
subjective, uncorroborated testimony.
ii
PARTIES TO THE PROCEEDING AND DESIGNATION
OF CORPORATE RELATIONSHIP
The parties named in the complaint were Barbara
Coleman; John Kaye, individually and in his capacity as
Monmouth County Prosecutor; and the County Prosecu-
tor’s Office of the County of Monmouth. The County of
Monmouth intervened in the district court, after the jury
returned its verdict, for the purpose of vacating the ver-
dict as to the County. None of these parties has any
parent or subsidiary companies.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...........
PARTIES TO THE PROCEEDING AND DESIGNA-
TION OF CORPORATE RELATIONSHIP.........
EE TE PAE ETRE DEE 0 cc ve batoa se sspecccreevce
CFE LAITY) co 'ew tne Kendo ence peencceeesceens
STATEMENT OF JURISDICTION...............+4..
CONSTITUTIONAL AND STATUTORY PROVI-
Er ch hess eken ab sss weoeceenres
Sirens Or The CASE... 2.2 cc ccccscsccccces
REASONS FOR GRANTING THE WRIT ...........
I. BY IMPOSING COMPENSATORY AND PUNI-
TIVE DAMAGES AGAINST THE COUNTY,
WHICH WAS NOT A PARTY TO THE LITIGA-
TION, THE THIRD CIRCUIT’S DECISION VIO-
LATES THE COUNTY’S CONSTITUTIONAL
DUE PROCESS RIGHTS AND CONFLICTS
WITH THIS COURT’S PRECEDENTS, INCLUD-
ING RICHARDS V. JEFFERSON COUNTY, ALA.,
SE AFUE CAOUMD poak oe siveccccnccrsccese
Il. BY IMPOSING COMPENSATORY AND PUNI-
TIVE DAMAGES AGAINST THE COUNTY
BASED ON CONDUCT THAT THE COUNTY
CANNOT CONTROL, CHANGE, PREVENT, OR
AFFECT IN ANY WAY, THE THIRD CIRCUIT’S
DECISION VIOLATES THE COUNTY’S CON-
STITUTIONAL DUE PROCESS RIGHTS AND
CONFLICTS WITH THIS COURT’S PRECE-
DENTS, INCLUDING BMW OF NORTH AMER-
ICA, INC. V. GORE, 116 S. CT. 1589 (1996)....
8
Ii.
IV.
iv
TABLE OF CONTENTS — Continued
Page
THE COURT OF APPEALS VIOLATED THE
PRINCIPLES OF ERIE R.R. CO. V. TOMPKINS,
304 U.S. 64 (1938), BY DISREGARDING THE
HOLDING OF THE NEW JERSEY SUPREME
COURT ON A QUESTION OF STATE LAW
AND INSTEAD SUBSTITUTING ITS OWN
INTERPRETATION OF THE LAW.............
THE ISSUE OF WHAT EVIDENCE IS NECES-
SARY TO RECOVER DAMAGES FOR EMO-
TIONAL DISTRESS IN A SECTION 1983 CASE
IS IMPORTANT AND RECURRING AND HAS
CREATED MUCH CONFUSION AMONG THE
RSNAEEE conc cd ak pub wibcacl anes ck exeerntue ns
RPO aE 89 5 CECA ASU RCANY CaP COA SS ORO NERETNS
13
a
Vv
TABLE OF AUTHORITIES
Page
Cases
Allahar v. Zahora, 59 F.3d 693 (7th ix. 1995) ........ 12
| Aurora v. Burlington N.R.R. Co., 31 F.3d 724 (8th
Re UR 5 iu eas be dus oR nies ope Ae 0 Ue Ken 22
: BMW of North America, Inc. v. Gore, 116 S. Ct. 1589
| OMEN rs os ace eich eet oii peti 8, 10, 11, 12
Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983)....... 22
Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994)........ 12
Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir.
5a ao hs ee A oo ca Be Kaba Cig ekeacannees 20
Block v. R.H. Macy & Co., Inc., 712 F.2d 1241 (8th
eT ERLE TREE GE NS ios POE ae: OE 21
Bordenkircher v. Hayes, 434 U.S. 357 (1978)........... 13
) Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) ....... 22
. Carey v. Piphus, 435 U.S. 247 (1978) ...... 17, 18, 19, 20
Chalmers v. City of Los Angeles, 762 F.2d 753 (9th
| Ci SP i RT kan Ka Sa ei bo eke diseases 20
| Cohen v. Board of Educ., Smithtown Cent. Sch. Dist.
. No, 4, 728 P20 160 (2d Cir: 2984) ioc cic eee eas 20
| Coleman v. Kaye, 87 F.3d 1491 (3d Cir. 1996)....... 1, 20
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,
| SP a Che et SA sa Sakae Senence cares tes 22
Crawford v. Garnier, 719 F.2d 1317 (7th Cir. 1983) .... 20
PA Pepe eba OS A at a BEI NRE re
vi
TABLE OF AUTHORITIES - Continued
DeNieva v. Reyes, 966 F.2d 480 (9th Cir. 1992)........ 20
Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250
(6th Cir. 1985), cert. denied, 475 U.S. 1015 (1986) .... 21
Erie R.R. Co. v. Tompkins, 304 U.S. 64
(39GB) 5s soca Se ees ck ee 13, 14, 15, 23
Fitzgerald v. Mountain States Tel. and Tel. Co., 68
F3a 2257 (ROG Gide: TPR ire ee oa i eee oe cant 12, 21
Gore v. Turner, 563 F.2d 159 (5th Cir. 1977).......... 21
Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108 (3d
Cir. 1988), cert. denied, 492 U.S. 905 (1989) ........ 21
Hansberry v. Lee, 311 U.S. 32 (1940) ..........--.-0ee 7
Hansen v. Mountain Fuel Supply Co., 858 P.2d 970
(Utah 1998) oscar ree a ees ches o enka ees 22
Hetzel v. County of Prince William, 89 F.3d 169 (4th
Cir, 199) SSE Me Bas ewe rcags . cai 20
Kohn v. Schiappa, 656 A.2d 1322 (N.J. Super. Ct.
Law Ue SO as vecerced cole cie eha ec eneweensd 22
Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445 (N.J.
1993}. «5: :cndens 4s ieee eer kena sess 14, 15, 16, 17
Leone v. Leewood Serv. Station, 624 N.Y.S.2d 610
(N.Y. App. Div.), appeal denied, 658 N.E.2d 221
CNY. BOG ss cea es Ro ee Ce aaa is FEEDS 22
Martin v. Wilks, 490 U.S. 755 (1989) .................. 7
Massachusetts Bonding and Ins. Co. v. United States,
352, U.S. SR CBB hs Sach ree xed sie Sans od oT 11
ae a ee ee _—™ =
vii
TABLE OF AUTHORITIES —- Continued
Page
Memphis Community Sch. Dist. v. Stachura, 477 U.S.
SEP nih ooh e dave Cie Kibo nede sv ad eh noes 19, 20
Monell v. Department of Social Services, 436 U.S. 658
Se 56 5 5's CU 8 We vrs nek aoo's veleeie eebeatecsoes 13
Morrissey v. Brewer, 408 U.S. 471 (1972) ...........+. 7
Muchow v. Lindblad, 435 N.W.2d 918 (N.D. 1989)..... 22
Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) ..... 21
Nicks v. Missouri, 67 F.3d 699 (8th Cir. 1995) ........ 12
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1
SES or hn nea CAA deh Coen eh U Sees eacessacwces'ss 12
Parrish v. Omaha Public Power Dist., 496 N.W.2d
EE Ee Sans Sane ped ties ee de Rot AC uso ees 22
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th
ct eis ww kicn ohh usee xbe dwe's bodes ns 12, 21
Price v. City of Charlotte, 93 F.3d 1241 (4th Cir.
| ER SERS TAA ee ae ree ee ee ree 20
Rakovich v. Wade, 819 F.2d 1393 (7th Cir.), vacated
on other grounds, 850 F.2d 1179 (7th Cir. 1987),
cert. denied, 488 U.S. 968 (1988) ...........---eeeee 20
Ramsey v. American Air Filter Co., Inc., 772 F.2d
pe Ws 6 Re MS. Ae SE ee eer eee 21
Richards v. Jefferson County, Ala., 116 S. Ct. 1761
EE Se eral e Gib cae Waker chews rasesescdacveveve 7
Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir.
DPN es ee P ia bas nod bapie he AMS goede eb eds 22
Viii
_ TABLE OF AUTHORITIES - Continued
Page
Silver v. Mendel, 894 F.2d 598 (3d Cir. 1990), cert.
denied, 406 AIB.. Fab CIS 6 6.65 00 en i ee a ives 22
Smith v. Anchor Building Corp., 536 F.2d 231 (8th
tA * RR RE SE IES ORS AE eR ae pa Day 21
Smith v. Wade, 461 U.S. 30 (1983) .............-..08- 11
Spence v. Board of Educ. of Christiana Sch. Dist., 806
Pate EAI Cee RE ok hres noc oe cs n hove tins cas 21
United States v. Balistrieri, 981 F.2d 916 (7th Cir.
1992), cert. denied, 510 U.S. 812 (1993)............. 20
Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503
FR 1e Cie SO si een cee s Ske ce eee an iene svees 21
Williams v. Trans World Airlines, Inc., 660 F.2d 1267
(BG Se TRG Rie eos 25050 EAC CRED as ER 20
STATUTES
BE LIB TRAD is ve 0 ve EPCs Fi Bee 8 AS 1
28 UB ee as ER hes oe SOROS S pe 1
po BAD ORS SAAR MR RC Neen Gere eee erate 5
Se RS tla Ie RE ois a 0p Bde Cie fk eh kh sed sas anes 5
eS LS Ob RRP aOe Bley ye ye eyy beet eee eT 21
GD CF es os 0s 6 NG Sees c eb 2; 3,13, 37,16
PR FES Re re ene mrpe- pannr ey 2
DES. SORE. PAE; A oe a5 6 keh so 00s eves iresaeets 9
I ds: RE. PA OE a oo os $as be deke ahha eens 9
ix
TABLE OF AUTHORITIES —- Continued
Page
BES, Canned eit NEL BD, O45 oss svcnentwes ssesoes ‘se
ee 2b en eer. y eer er eer 9
et a es Se ee ree 9
PF. Stat. Atm. & TAS, 0. cc cciccccccciescececcees 8
IT, Stat. Asi. S ZAI Ss os cic nsicsvcecvecscvovnsess 9
NJ. Stat. Ann. § 2A:IS6-18.1 «2. 60. ccs es cccreetereces 9
NJ. Stat. Ann. § 10:5-1 ef 6€q.....5.cccsccenccecsceres 2
OrHER AUTHORITIES
Restatement (Second) of Agency § 219.............. 14
Restatement (Second) of Torts § 436A............... 22
PETITION FOR A WRIT OF CERTIORARI
Petitioners, the County of Monmouth and John Kaye,
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Third Circuit.
OPINION BELOW
The opinions of the United States District Court for
the District of New Jersey (A-50 to A-91) have not been
officially reported. The opinion of the Court of Appeals
for the Third Circuit (A-1 to A-46) is reported at 87 F.3d
1491.
STATEMENT OF JURISDICTION
The Court of Appeals entered judgment on June 26,
1996, and denied the Petition for Rehearing and Sugges-
tion for Rehearing In Banc on August 6, 1996. The juris-
diction of this Court is invoked pursuant to 28 U.S.C.
§ 1254(1). The Court of Appeals had jurisdiction under 28
U.S.C. § 1291.
*
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourteenth Amendment to the United. States
Constitution provides in pertinent part: “ .. . nor shall
any state deprive any person of life, liberty, or property,
without due process of law.”
Section 1983 of the federal Civil Rights Act, 42 U.S.C.
§ 1983, is reproduced at A-94 to A-95. The relevant portions
of the New Jersey Law Against Discrimination, N.J. Stat.
Ann. 10:5-1 et seq. are reproduced at A-95 to A-120.
+
STATEMENT OF THE CASE
Barbara Coleman, an investigator in the prosecutor’s
office, sued John Kaye individually and in his capacity as
Monmouth County Prosecutor; the County Prosecutor’s
Office of the County of Monmouth; and unnamed John
and Jane Does for gender discrimination for failure to
promote her on three occasions. Even though she admit-
ted that she had lost no compensation, Coleman asserted
claims under the New Jersey Law Against Discrimination
(“LAD”), N.J. Stat. Ann. § 10:5-1 et seq.; section 1983 of
the federal civil rights act, 42 U.S.C. § 1983; and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. (A-4)
The fictitious defendants never were named as par-
ties. The County of Monmouth (“County”) was not
named in the complaint and was not referred to in the
body of the complaint. (A-4) The County never was
served with the complaint, never was listed on the trial
court’s docket, and never participated in any of the trial |
court proceedings. The complaint was served on Kaye
only. (A-4) The Court of Appeals acknowledged that ser-
vice on Kaye does not constitute service on the County.
(A-9) :
Inexplicably, at the conclusion of the trial, the court
in its charge to the jury named the County of Monmouth
and submitted to the jury an interrogatory referring to
the County as a potentially responsible party. (A-4) The
jury returned its liability verdict, specifically finding in
response to interrogatories that the County did not have
a policy or custom of gender discrimination in promotion
decisions. (A-4) The jury found that Kaye and/or his
subordinates had discriminated against Coleman only
under section 1983 (not under the LAD) by failing to
promote her on three occasions. (A-33) The jury awarded
Coleman $15,000 in compensatory damages and $350,000
in punitive damages against the County (only under the
state LAD); and $10,000 in compensatory damages and
$50,000 in punitive damages against Kaye in his individual
capacity (only under section 1983). (A-32 to A-33)
After learning of the jury verdict, the County moved
in the trial court under Fed. R. Civ. P. 60(b)(4) to intervene
in order to vacate the verdict against it - because the
County had not been a party to the litigation. The district
court granted the County’s post-trial motion, holding
that: (1) as a matter of procedure, the County was not a
party to the action because it was not a named defendant
and had not been served; and (2) as a matter of substance,
the County could not be liable under the LAD (the only
basis for the jury’s liability verdict as to the County) for
the actions of Kaye because the County exercises no
control over Kaye, as required under New Jersey law for
employer liability. (A-54, A-57 to A-58) The district court
denied Kaye’s post-trial motions for judgment N.O.V. and
for a new trial, holding that there was sufficient evidence
to find Kaye liable for both compensatory and punitive
damages. (A-61, A-63)
Both sides appealed. The Third Circuit Court of
Appeals reversed the district court as to the County and
affirmed as to Kaye. (A-2 to A-3) With respect to the County,
to reach the result that a nonparty can be liable for $365,000
in compensatory and punitive damages, the Court of
Appeals, relying largely on certain correspondence from and
documents filed on behalf of the Monmouth County Pros-
ecutor’s Office (not the County of Monmouth), made its own
factual determination that the County’s interests were “indis-
tinguishable from those of the Monmouth County Prosecu-
tor’s Office” (which was legally incorrect), (A-12 to A-13)
and that the County had waived the defense of lack of
personal jurisdiction by submitting itself to the jurisdiction of
the district court. (A-10)
While acknowledging that the County has no control
over the conduct of the prosecutor (A-21), to reach the result
that a governmental entity can be liable for conduct over
which it has no control, the Court of Appeals simply chose to
disregard both fundamental Constitutional principles and
settled principles of state law and to “impute” the allegedly
discriminatory acts of Kaye and his subordinates to the
County. (A-31) In addition, the Court of Appeals permitted
Coleman’s compensatory damages award to be based solely
on her subjective testimony of emotional distress — without a
single shred of objective corroboration, either through her
own testimony or otherwise. (A-34)
In short, the Third Circuit’s decision imposes liability
for compensatory and punitive damages on an entity
that: (1) was not a party in the case; and (2) had no ability
to control, change, prevent, or affect in any way the
allegedly discriminatory conduct at issue. This petition
affords this Court an opportunity to address the impor-
tant Constitutional issues raised by the Third Circuit’s
decision and to resolve an important and recurring con-
flict among the Courts of Appeals with respect to the type
of evidence necessary to support the recovery of damages
under section 1983 for emotional distress.
REASONS FOR GRANTING THE WRIT
I. BY IMPOSING COMPENSATORY AND PUNITIVE
DAMAGES AGAINST THE COUNTY, WHICH WAS
NOT A PARTY TO THE LITIGATION, THE THIRD
CIRCUIT’S DECISION VIOLATES THE COUNTY’S
CONSTITUTIONAL DUE PROCESS RIGHTS AND
CONFLICTS WITH THIS COURT’S PRECEDENTS,
INCLUDING RICHARDS V. JEFFERSON COUNTY,
ALA., 116 S. CT. 1761 (1996).
: The County was not a party to this litigation unti! after
| the jury had rendered its verdict, when the County then
) intervened for the sole purpose of obtaining a ruling that it
was not liable because it was not a party. Because it had not
: been a party, the County could not, and did not, file motions
to dismiss or for summary judgment, call witnesses in sup-
port of its position, cross-examine plaintiff's witnesses, sub-
mit proposed jury instructions, or present any argument to
the jury before the verdict was reached. Although the
County had compelling defenses to the lawsuit, and
although the very basis of the Court’s subject matter jurisdic-
tion over the County was highly doubtful,’ the County was
f. SEER De
1 Before a district court can exercise supplemental
jurisdiction over a state claim, the district court in the exercise
of its discretion must determine that the state claim is the proper
subject of supplemental jurisdiction. 28 U.S.C. § 1367. No such
discretion was exercised here, and in view of the “novel [and]
complex issue of State law,” 28 U.S.C. § 1367(c)(1), the district
ll
unable to defend itself. Moreover, the County was in no
position to object to the submission of its liability to the jury
because it was not a party and was not in court. This fact is
underscored by the necessity of the County’s post-trial
motion to intervene in order to rectify what the jury had
done as a result of the district court’s error in submitting
interrogatories to the jury.
Despite these uncontroverted facts, the Third Circuit
held that the County’s liability was properly before the
jury because the County “submit[ted] itself to the jurisdic-
tion of the district court, thereby waiving any claim that
the district court lacked in personam jurisdiction.” (A-10) In
this respect, the Court of Appeals misconstrued the dis-
tinction between being a party to an action and waiving
personal jurisdiction; and not being a party to an action
altogether. Even assuming arguendo that the County had
waived a defense of lack of personal jurisdiction (which it
did not),2 the Court of Appeals ignored the following
uncontroverted facts: that the County never was a party to
the action, it was not named as a defendant, it was not
court would have been well within its discretion not to have
exercised supplemental jurisdiction over Coleman’s LAD claim
against the County.
2 In support of its factual determination that the County
was a proper party to the lawsuit because it had waived the
defense of lack of personal jurisdiction, the Court primarily
relied on certain documents that pertained to the representation
of the County Prosecutor’s Office of the County of Monmouth
(A-10 to A-12), which was named as a defendant in the
complaint and which is a separate and distinct entity from the
County of Monmouth. There was no argument regarding the
effect of these documents in either the district court or the Court
of Appeals.
7
served, it filed no motions, it did not participate in discov-
ery, it did not participate in the trial, and it had nothing to
do with the interrogatories submitted to the jury that
formed the basis for the verdict against it.
By granting the County’s motion to intervene and to
vacate, the district court corrected the extraordinary pro-
cedural anomaly that had occurred. In turn, the Court of
Appeals, by reversing the district court and reinstating
the $365,000 verdict against a non-party, effectively per-
mitted an ex parte trial against the County, thereby
depriving the County of its right to trial by jury and
depriving it of its due process rights.
Clearly, if the County was to be named in the charge,
submitted to the jury, and exposed to potential liability, it
had the right to an opportunity to be heard in a meaning-
ful manner and at a meaningful time. See Morrissey v.
Brewer, 408 U.S. 471 (1972). Even more fundamentally, the
Court of Appeals’ holding is irreconcilable with this
Court’s precedent that an entity cannot be bound by a
judgment in a litigation to which it is not a party. See
Martin v. Wilks, 490 J.S. 755, 761-62 (1989); Hansberry v.
Lee, 311 U.S. 32, 40 (1940). See also Fed. R. Civ. P. 60(b)(4)
(verdict entered against non-party is void).
As this Court most recently explained in Richards v.
Jefferson County, Ala., 116 S. Ct. 1761, 1765-66 (1996) (cita-
tions omitted):
The limits on a state court’s power to develop
estoppel rules reflect the general consensus “in
Anglo-American jurisprudence that one is not
bound by a judgment in personam in a litigation
in which he is not designated as a party or to
which he has not been made a party by service
of process.” This rule is part of our “deep-rooted
historic tradition that everyone should have his
own day in court.” As a consequence, “[a] judg-
ment or decree among parties to a lawsuit
resolves issues as among them, but it does not
conclude the rights of strangers to those pro-
ceedings.”
This is precisely what h ppened here. At the conclu-
sion of a trial, a non-party that never had been desig-
nated as a party or served, was subjected to a $365,000
judgment, $350,000 in punitive damages. Certiorari is
warranted to correct this fundamental due process viola-
tion and miscarriage of justice. When viewed in light of
this Court’s unmistakable precedents, the Third Circuit's
opinion should not be permitted to stand.
Il. BY IMPOSING COMPENSATORY AND PUNITIVE
DAMAGES AGAINST THE COUNTY BASED ON
CONDUCT THAT THE COUNTY CANNOT CON-
TROL, CHANGE, PREVENT, OR AFFECT IN ANY
WAY, THE THIRD CIRCUIT’S DECISION VIO-
LATES THE COUNTY’S CONSTITUTIONAL DUE
PROCESS RIGHTS AND CONFLICTS WITH THIS
COURT’S PRECEDENTS, INCLUDING BMW OF
NORTH AMERICA, INC. V. GORE, 116 S. CT. 1589
(1996).
The County, a municipal entity under New Jersey
law, admittedly was not Coleman’s employer. Coleman
was employed as an investigator by the county prosecu-
tor under N.J. Stat. Ann. § 2A:157-10. (A-17) The county
prosecutor is a constitutionally-established office sepa-
rate and distinct from other public entities under the New
Jersey Constitution. N.J. Const. art. VIL, § 2, { 1. The
prosecutor is nominated and appointed by the Governor,
with the advice and consent of the New Jersey Senate. Id.
The County does not have the power either to hire or fire
the prosecutor: only the Governor can take such action.
N.J. Stat. Ann. § 52:17B-100. Furthermore, all the assistant
prosecutors and investigators in the prosecutor’s office
are hired personally by the prosecutor, serve at the pleas-
ure of the prosecutor alone, and are removable at will by
the prosecutor alone. See N.J. Stat. Ann. §§ 2A:157-2; id.
at 157-10; id. at 158-15; id. at 158-18.1. In short, under
New Jersey law the prosecutor has exclusive control over
the personnel decisions in his office.°
Of primary significance is the Third Circuit's
acknowledgment that pursuant to the New Jersey Consti-
tutional and statutory scheme described above, there
would have been no way for the County to control,
prevent, or remedy the alleged discrimination in the pros-
ecutor’s office. (A-22) But the Court’s holding begs the
essential question: if the County is forced to pay for these
alleged transgressions, how does it protect itself against
liability and how may it stop such transcressions in the
future? The answer is that under the state Constitutional
3 Although the prosecutor's office is funded out of the
County Treasury, N.J. Stat. Ann. § 40:20-1, this fact does not
confer on the County any control over the prosecutor’s office.
The State of New Jersey requires that the County establish the
office and requires that the County fund the office. N.J. Stat.
Ann. § 2A:158-7. These are not discretionary items. Should the
County, for any reason, including its displeasure with the acts of
the prosecutor, decide not to fund or to underfund the office, the
prosecutor may apply to the assignment judge of the County for
an order compelling the funding. Id.
10
and statutory arrangement, it cannot. The County cannot
discipline the prosecutor, the assistant prosecutors, or the
detectives. It cannot discharge any of these people. The
Third Circuit has imputed to the County all of the respon-
sibility for the actions of these officials, yet the County
has no ability to control or in any way supervise them. In
short, the Court of Appeals has created a strict imposition
of liability where there is no ability to reduce the risk of a
damage award or to remedy the violation alleged. More-
over, the Court has done so without any legal authority
whatsoever. Indeed, we have searched in vain for any
authority to support the result reached by the Court of
Appeals.
The Court of Appeals’ imposition of compensatory
and punitive damages upon a governmental entity for the
actions of a person over whom it has no control contra-
venes well-established Constitutional principles. The due
process violation inherent in the imposition of punitive
damages on an entity that cannot control the conduct in
question is clear from this Court’s recent decision in
BMW of North America, Inc. v. Gore, 116 S. Ct. 1589 (1996).
In BMW, this Court held that due process was violated by
a $2 million punitive damages award based on $4,000 in
compensatory damages for economic harm arising from
defendant’s failure to disclose certain information to
plaintiff about his car. Emphasizing “the principle that
punitive damages may not be ‘grossly out of proportion
to the severity of the offense,’ ” id. at 1599 (quoting TXO
Production Corp. v. Alliance Resources Corp., 509 U.S. 443,
453 (1993)), this Court articulated three guideposts to
11
inform a court in its analysis of the propriety of a puni-
tive damages award: the reprehensibility of the defen-
dant’s conduct, the ratio of the award to the plaintiff’s
actual harm, and a comparison to awards in similar cases.
BMW, 116 S. Ct. at 1599-1603. If application of these
guideposts led to the reversal of the punitive damages
award in BMW, then logically the punitive damages
imposed against the County here cannot stand.
Application oi the first BMW factor alone leads ines-
capably to the conclusion that the imposition of punitive
damages here violates the County’s due process rights. In
BMW, the Court stated that “perhaps the most important
indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant's
conduct.” BMW, 116 S. Ct. at 1599. See also id. (“exem-
plary damages imposed on a defendant should reflect the
enormity of his offense.”); Smith v. Wade, 461 U.S. 30, 54
(1983) (“the focus is on the character of the tortfeasor’s
conduct - whether it is of the sort that calls for deterrence
and punishment over and above that provided by com-
pensatory awards”); Massachusetts Bonding and Ins. Co. v.
United States, 352 U.S. 128, 133 (1956) (“[b]y definition,
punitive damages are based upon the degree of the
defendant’s culpability”).
Stating these basic principles demonstrates why the
County - which did nothing - and which could have
done nothing — to control, change, prevent, or affect the
conduct at issue in any way — cannot Constitutionally be
liable for punitive damages. Far from being reprehensible
12
— any misconduct by the County is absolutely non-exis-
tent.4 In short, the Court of Appeals made the County
strictly liable for punitive damages arising out of events
in the prosecutor’s office over which the County admit-
tedly has no control and no ability to change, prevent, or
affect. The Court’s error is underscored in view of the fact
that the jury specifically found in answers to interrogato-
ries that the County in fact did not have any discrimina-
tory policies in place.
4 The other BMW factors also support reversal of the
punitive damages award in this case. The ratio of punitive to
compensatory damages in this case is 16 to 1. This Court has
suggested that the relevant ratio should approximate 10 to 1.
BMW, 116 S. Ct. at 1602. See also Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 23-24 (1991). In addition, even had the County
controlled the conduct at issue and even if some amount of
punitive damages would have been appropriate, the
excessiveness of this punitive damages award is evident from a
comparison of this award to awards in similar cases. See, e¢.g.,
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (Sth Cir. 1996)
($150,000 punitive damages award excessive for supervisor’s
racial slurs and falsifying documents of misconduct); Fitzgerald
v. Mountain States Tel. and Tel. Co., 68 F.3d 1257 (10th Cir. 1995)
(no punitive damages for alleged inadequate investigation of
discrimination charges); Nicks v. Missouri, 67 F.3d 699 (8th Cir.
1995) ($70,000 compensatory and $4,500 punitive damages for
supervisors’ failure to act upon repeated complaints of sexual
harassment by fellow employee); Allahar v. Zahora, 59 F.3d 693
(7th Cir. 1995) ($10,000 compensatory damages and no punitive
damages for refusal to sell house based on race); Beardsley v.
Webb, 30 F.3d 524 (4th Cir. 1994) ($76,044 compensatory and
$8,000 punitive damages for repeated sexual harassment and
discrimination after several direct complaints to the offender
and his supervisor).
Ba a a a emer res —
q ce ’ HM ‘
j
13
Imposing liability on the County under these circum-
stances is startling enough; awarding punitive damages is
completely unsupportable. As this Court has stated, “[t]o
punish a person because he has done what the law
plainly allows him to do is a due process violation of the
most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978). Certainly, to punish a governmental entity where
it has done all that it possibly (and legally) can do is
equally an abridgment of due process.5
Ill. THE COURT OF APPEALS VIOLATED THE
PRINCIPLES OF ERIE R.R. CO. V. TOMPKINS, 304
U.S. 64 (1938), BY DISREGARDING THE HOLD-
ING OF THE NEW JERSEY SUPREME COURT
ON A QUESTION OF STATE LAW AND
INSTEAD SUBSTITUTING ITS OWN INTER-
PRETATION OF THE LAW.
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), requires
federal courts to apply state law to state claims, regard-
less of whether the federal court approves of the result
reached by the application of state law. The Court of
> It must also be noted that there was no legally sufficient
basis for the jury’s award of damages against Kaye in his
individual capacity under section 1983. The only evidence of
Kaye’s personal involvement with the promotion decisions at
issue was that he had delegated such decisions to his
subordinates, that Coleman wrote him two memoranda about
her non-promotion, and that he did not personally respond to
those memoranda. Liability for compensatory and punitive
damages in a section 1983 action (where there is no respondeat
superior liability) based on such evidence is untenable under this
Court’s precedents. See Smith v. Wade, 461 U.S. 30 (1983); Monell
v. Department of Social Services, 436 U.S. 658 (1978).
14
Appeals acknowledged that the New Jersey Supreme
Court’s decision in Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d
445 (N.J. 1993), requires that agency principles govern the
scope of employer liability under the LAD. (A-15) But
because the application of Lehmann would lead to what
the panel described as an “untenable conclusion,” (A-14)
the Court, in defiance of Erie, disregarded Lehmann and
instead to substitute its own test for employer liability,
which was to ascertain to which governmental entity the
prosecutor most closely “belongs” when making person-
nel decisions, and then to “impute” liability to that entity,
(A-24, A-31). In so doing, the Court of Appeals ignored
both the due process rights of the County not to be
responsible for damages for conduct over which it has no
control (discussed above), and the Constitutional obliga-
tions of a federal court applying state law under Erie.
The New Jersey Supreme Court's decision in Lehmann
was a landmark decision that conclusively established the
scope of an employer’s liability for sexual harassment
claims brought under the LAD. The Court held that in
instances of supervisory liability, strict liability theories
apply only to relief that is equitable in nature. Lehmann,
626 A.2d at 460. Before an employer can be held liable for
compensatory damages, the Restatement (Second) of
Agency § 219 test for liability of a master for the torts of a
servant must be satisfied. 626 A.2d at 461. Finally,
Lehmann held that punitive damages may be imposed
only “when the wrongdoer’s conduct is especially
egregious,” and that “the employer should be liable for
punitive damages only in the event of actual participation
by upper management or willful indifference.” 626 A.2d
at 464.
a
15
In its opinion, the Third Circuit expressly recognized
| that under New Jersey law, the County has absolutely no
| ability to control or in any way to affect Kaye’s employ-
ment decisions and, accordingly, that under Lehmann the
County could not be liable. (A-21 to A-22) But not satis-
fied with that result, the Court of Appeals took upon
itself completely to disregard Lehmann in favor of a differ-
ent test of its own creation. (A-22 to A-24) As the Court
stated:
The extension of Lehmann’s agency principles to
Coleman’s sex discrimination suit against the
County of Monmouth is logically unacceptable
because county prosecutors are clearly govern-
ment officials who, reason dictates, must be act-
ing on behalf of some governmental entity when
they make personnel decisions. The agency
paradigm fails here because it requires us to
reach the specious conclusion that Prosecutor
Kaye was not acting under the authority of any
state governmental body, either state or county,
when he passed Coleman over for promotion.
(A-23 to A-24) The Court’s refusal to follow the clear,
black letter holding of the New Jersey State Supreme
Court on an issue solely of New Jersey law not only
violates Erie, but also is fundamentally unfair.
As set forth in Lehmann, the underlying theory of
respondeat superior is that an employer will be held liable
for the actions of his or her employee because the
employer has the ability to control the employee. See
Lehmann, 626 A.2d at 464. Here, despite the absence of
any indicia whatsoever of a master-servant relationship,
the County is deemed financially responsible for the
16
actions of persons it did not hire, cannot control, and
cannot discipline.
Lehmann makes clear why the master-servant rela-
tionship, missing here, is essential to a finding of
employer liability in discrimination cases. In Lehmann, the
New Jersey Supreme Court emphasized that “[flor the
remedial purpose of the LAD to be fulfilled, the employer
must take action, because generally the employer is the
party with the power and responsibility to hire, promote,
reinstate and provide back pay, and take other remedial
action.” 626 A.2d at 460. The purpose behind the
employer liability provisions of the LAD as detailed in
Lehmann was to provide employers with “the incentive
not only to provide voluntary compliance programs but
also to insist on the effective enforcement of their pro-
grams.” 626 A.2d at 465.
In order to accomplish these purposes, Lehmann held
that an employer may defend a LAD action based upon a
showing that it has in place anti-discrimination policies
for complaints, training, and monitoring. 626 A.2d at 463.
By reaching the illogical conclusion it has in this case, the
Third Circuit has removed from consideration the funda-
mental policies underlying respondeat superior as applied
to discrimination claims, as well as all of the defenses
available to any other employer under the LAD. The
County in fact has significant and pervasive anti-discrim-
ination measures in place. Similarly, the County has stan-
dards and policies in effect with respect to promotions.
However, none of these policies is applicable or binding
upon the prosecutor’s office or the prosecutor himself
because under state law the County cannot exercise any
17
control over the promotion or hiring policies of the prosecu-
tor. Those personnel decisions are exclusively the prosecu-
tor’s to make under the New Jersey statutory scheme.
Therefore, the Third Circuit has carved out a strict liability
exception to the governing state law under the LAD, has
stripped the County of the defenses available to every other
employer under the LAD, and has abolished completely the
New Jersey punitive damages requirement of “actual partici-
pation” or “willful indifference.”
While the Court of Appeals may have preferred that
New Jersey law were otherwise, the blunt fact is that under
the New Jersey Supreme Court's decision in Lehmann, the
County can be liable for damages only for the acts of its
agents, and, under the New Jersey Constitutional and statu-
tory scheme, the prosecutor is not the County’s agent.
Accordingly, the Court of Appeals’ decision violates the
principles established by Erie and should be reversed.
IV. THE ISSUE OF WHAT EVIDENCE IS NECESSARY
TO RECOVER DAMAGES FOR EMOTIONAL
DISTRESS IN A SECTION 1983 CASE IS IMPOR-
TANT AND RECURRING AND HAS CREATED
MUCH CONFUSION AMONG THE CIRCUITS.
In Carey v. Piphus, 435 U.S. 247 (1978), this Court
established the standards for the recovery of damages for
emotional distress under section 1983. Noting that dam-
age awards under 42 U.S.C. § 1983 are to be governed by
common law principles of compensation applicable to
tort claims, the Court explained that a second level of
evidentiary support must be satisfied before damage
awards in Constitutional cases will be upheld: the
18
plaintiff must demonstrate the existence of a “genuine
injury,” which, this Court instructed, may be “evidenced
by one’s conduct and observed by others.” 435 U.S. at
257-58, 264 n.20. Moreover, the Court warned that
“[j]uries must be guided by appropriate instructions, and
an award of damages must be supported by competent
evidence concerning the injury.” 435 U.S. at 264 n.20.
Accordingly, under Carey, a plaintiff who fails to present
sufficient evidence to support a claim of “actual injury” is
entitled to recover no more than nominal damages. 435
U.S. at 266.
Since Carey, the issue of what is “competent evi-
dence” sufficient to establish “actual injury” in a section
1983 case — and, in particular, whether the subjective,
uncorroborated testimony of a plaintiff is sufficient to
meet this standard — has caused confusion and uncer-
tainty among the circuit courts. Most Courts of Appeals
have rejected conclusory, subjective, uncorroborated testi-
mony from a plaintiff as an insufficient basis upon which
to uphold an award for emotional distress (or as warrant-
ing only nominal damages). Other Courts of Appeals
have interpreted the Carey requirement that a plaintiff
establish “actual injury” by “competent evidence” more
broadly to allow substantial compensatory damage
awards based solely on a plaintiff’s conclusory, subjec-
tive, uncorroborated testimony. In view of the lack of
uniformity among the federal courts on this important
and recurring issue of federal law, this Court should take
this opportunity to set forth uniform and predictable
guidelines regarding the precise measure of evidence nec-
essary to support a claim for emotional distress in a
section 1983 case.
19
Here, Coleman’s evidence on compensatory damages
consisted solely of her own testimony about her feelings
of “anger,” “disappointment,” “hopelessness,” and
“depression” upon learning that others within the pros-
ecutor’s office had been promoted. Coleman presented no
medical or psychiatric evidence of emotional distress. She
testified that she never consulted a psychiatrist, psychol-
ogist, social worker, or, for that matter, even the counsel
of a friend to deal with her problem. Moreover, Coleman
stipulated that she suffered no loss of wages and, that
except for the time she spent pursuing her legal claims in
connection with this action, did not miss any time from
work. Thus, based solely on her own description of anger,
disappointment, and depression, Coleman is able to
recover substantial monetary damages and substantial
counsel fees, all of which must be paid for by the inno-
cent taxpayers of Monmouth County.
The Third Circuit’s decision to uphold Coleman's
compensatory damage award based solely on her subjec-
tive, self-serving, and uncorroborated testimony illus-
trates quite clearly the confusion and unpredictability
that has ensued in this post-Carey era. The Third Circuit
declined to require Coleman to prove the existence of
“actual injury” with objective, corroborative evidence.
Instead, it found that Coleman had sufficiently demon-
strated an actual injury “because a reasonable jury could
credit Coleman’s testimony as to the personal anguish
she suffered as a result of being passed over for promo-
tion.”© (A-34 to A-35) In so holding, the Third Circuit
© The Third Circuit’s reliance on this Court’s decision in
Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986), is
20
joined a minority of courts that have interpreted this
Court’s holding in Carey to allow a plaintiff to demon-
strate “actual injury” in a section 1983 case through his or
her own subjective, uncorroborated testimony. See United
States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992), cert.
denied, 510 U.S. 812 (1993); DeNieva v. Reyes, 966 F.2d 480,
487 (9th Cir. 1992); Chalmers v. City of Los Angeles, 762 F.2d
753, 761 (9th Cir. 1985); Crawford v. Garnier, 719 F.2d 1317,
1324 (7th Cir. 1983); Williams v. Trans World Airlines, Inc.,
660 F.2d 1267, 1272-73 (8th Cir. 1981).
In contrast to the Court’s approach in Coleman, other
Courts of Appeals have interpreted Carey strictly and
have disallowed awards or permitted awards of only
nominal damages in circumstances where the only evi-
dence of emotional distress is the plaintiff's own subjec-
tive, uncorroborated testimony. See Price v. City of
Charlotte, 93 F.3d 1241, 1254, (4th Cir. 1996); Hetzel v.
County of Prince William, 89 F.3d 169, 171-73 (4th Cir.
1996); Biggs v. Village of Dupo, 892 F.2d 1298, 1304 (7th Cir.
1990); Rakovich v. Wade, 819 F.2d 1393, 1399 n.6 (7th Cir.),
vacated on other grounds, 850 F.2d 1179 (7th Cir. 1987), cert.
denied, 488 U.S. 968 (1988); Cohen v. Board of Educ., Smith-
town Cent. Sch. Dist. No. 1, 728 F.2d 160, 162 (2d Cir. 1984);
erroneous. Stachura does not discuss the quantity or quality of
evidence necessary to support an award of substantial damages
in a Constitutional deprivation case but rather extends the
holding of Carey to claims for “impairment of reputation... ,
personal humiliation, and mental anguish and suffering.” 477
U.S. at 307 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350
(1974)). Nothing in Stachura obviates the need for a plaintiff to
prove personal humiliation, mental anguish, and suffering
through substantial evidence.
21
Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981); see
also Spence v. Board of Educ. of Christiana Sch. Dist., 806
F.2d 1198, 1201 (3d Cir. 1986).
Courts of appeals assessing emotional distress dam-
ages in cases brought under 42 U.S.C. § 1981 have experi-
enced similar confusion. Some have applied the teaching
of this Court in Carey strictly, and have recognized that
subjective, uncorroborated testimony from a plaintiff -
without more - is insufficient to support an award of
substantial damages. Indeed, in Gunby v. Pennsylvania
Elec. Co., 840 F.2d 1108, 1120-21 (3d Cir. 1988), cert. denied,
492 U.S. 905 (1989), the Third Circuit itself reversed a
section 1981 emotional distress damage award of $15,000
where the only evidence presented was vague testimony
that the plaintiff felt he had been treated unjustly and
that he was “very upset” when informed of the decision
not to interview him for a promotion. See also Patterson v.
P.H.P. Healthcare Corp., 90 F.3d 927, 939 (5th Cir. 1996);
Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257,
1265-66 (10th Cir. 1995); Vance v. Southern Bell Tel. and Tel.
Co., 863 F.2d 1503, 1516 (11th Cir. 1989); Ramsey v. Ameri-
can Air Filter Co., Inc., 772 F.2d 1303, 1313 (7th Cir. 1985);
Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250, 1259
(6th Cir. 1985), cert. denied, 475 U.S. 1015 (1986).
Other section 1981 cases, however, have held to the
contrary and have allowed awards of substantial compen-
satory damages based solely on the testimony presented
by the plaintiff. See, e.g., Block v. R.H. Macy & Co., Inc., 712
F.2d 1241, 1245 (8th Cir. 1983); Gore v. Turner, 563 F.2d 159,
164 (Sth Cir. 1977); Smith v. Anchor Bldg. Corp., 536 F.2d
22
231, 236 (8th Cir. 1976); Seaton v. Sky Realty Co., Inc., 491
F.2d 634, 636 (7th Cir. 1974).
The view shared by a majority of courts — i.e., the
view that rejects a plaintiff’s self-serving, uncorroborated
testimony as the sole basis for emotional distress awards
~ comports with other federal court decisions that have
analyzed emotional distress claims under the common
law. In these decisions, courts have demonstrated a clear
reticence to award compensatory damages for emotional
distress without adequate support. See, e.g., W. Page
Keeton, et al., Prosser & Keeton on the Law of Torts, § 12, at
64 (5th ed. 1984). Significantly, this Court, too, has recog-
nized that courts must restrict emotional distress claims
in view of “(t]he potential for a flood of trivial suits, the
possibility of fraudulent claims that are difficult for
judges and juries to detect and the specter of unlimited
and unpredictable liability.” Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 2411 (1994).7
+
7 For these reasons, in negligent infliction of emotional
distress cases, many courts have required medically-provable
and diagnosable mental distress in order to give rise to
damages. See, e.g., Aurora v. Burlington N.R.R. Co., 31 F.3d 724,
726 (8th Cir. 1994); Silver v. Mendel, 894 F.2d 598, 607 n.19 (3d Cir.
1990), cert. denied, 496 U.S. 926 (1990); Bass v. Nooney Co., 646
S.W.2d 765, 772-73 (Mo. 1983) (en banc); Parrish v. Omaha Pub.
Power Dist., 496 N.W.2d 914, 915-16 (Neb. 1993); Kohn v.
Schiappa, 656 A.2d 1322, 1325 (N.J. Super. Ct. Law Div. 1995);
Leone v. Leewood Serv. Station, 624 N.Y.S.2d 610, 613 (N.Y. App.
Div.), appeal denied, 658 N.E.2d 221 (N.Y. 1995); Muchow v.
Lindblad, 435 N.W.2d 918, 923 (N.D. 1989); Camper v. Minor, 915
S.W.2d 437, 446 (Tenn. 1996); Hansen v. Mountain Fuel Supply Co.,
858 P.2d 970, 974-75 (Utah 1993). See generally Restatement
(Second) of Torts § 436A, cmt. b (1965).
inital
23
CONCLUSION
This is one of the rare cases in which certiorari is
warranted not only because of the serious Constitutional
violations, but also because a fundamental injustice
occurred in the Court of Appeals: a governmental entity
that was not named in the complaint, that was not served
with the complaint, and that did not participate in the
trial was held liable for substantial compensatory and
punitive damages. To make matters worse, that govern-
mental entity had absolutely no ability to control, change,
prevent, or affect in any way the alleged conduct that
gave rise to the damages at issue. Such a decision clearly
violates the precepts of this Court, fundamental due pro-
cess, and plain fairness.
This petition should be granted to correct this uncon-
stitutional and unprincipled result, as well as to clarify
the standard for recovery of damages for emotional dis-
tress under section 1983. In view of the egregious nature
of the case, the Court may in the alternative choose to
summarily vacate the judgment and remand to the Court
of Appeals with instructions for that Court to address the
serious due process and Erie violations, as well as the
24
appropriate standard to be applied in dealing with dam-
ages for emotional distress in section 1983 actions.
Respec
Ma tcoitm V. CARTON
Monmouth County Counsel
Attorney for the
County of Monmouth
CARTON & FACCONE
514 Garfield Avenue
Avon, New Jersey 07712
(908) 776-7777
*Counsel of Record
Dated: November 1, 1996.
tfully submitted,
*ArLIN M. ADAMS
Nancy WINKELMAN
Attorneys for John Kaye
SCHNADER HARRISON
Seca & Lewis
1600 Market Street,
Suite 3600
Philadelphia, Pennsylvania
19103
(215) 751-2000
In The
Supreme Court of the United States
October Term, 1996
¢
JOHN KAYE, Individually, and in his capacity as
Monmouth County Prosecutor; THE COUNTY
PROSECUTOR’S OFFICE OF THE COUNTY OF
MONMOUTH; JOHN DOES 1-100; JANE DOES 1-100
THE COUNTY OF MONMOUTH,
Intervenor in District Court,
Petitioners,
BARBARA COLEMAN,
Respondent.
+
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
+
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
¢
A-i
TABLE OF CONTENTS
Opinion of the United States Court of Appeals for
the Third Circuit, dated June 26, 1996 ..........
Memorandum Opinion of the United States Dis-
trict Court for the District of New Jersey, dated
MOE Dy TIPO sats iting 804 so eNS Ci HAE EE Ce Leek bos
Judgment Order and Amended Order of the
United States District Court for the District of
New Jersey, dated May 23, 1995................
Order of the United States District Court for the
District of New Jersey, denying plaintiff's
motion for reconsideration, dated June 16, 1995.
Memorandum Opinion of the United States Dis-
trict Court for the District of New Jersey, grant-
ing plaintiff’s application for attorneys’ fees
and costs, dated August 17, 1995...............
Amended Memorandum Opinion of the United
States District Court for the District of New
Jersey, granting plaintiff’s application for attor-
neys’ fees and costs, dated September 8, 1995..
Order of the United States District Court for the
District of New Jersey on the Mandate from the
United States Court of Appeals for the Third
Circuit, dated September 25, 1996...............
Order of the United States Court of Appeals for
the Third Circuit, denying petition for rehear-
ing and suggestion of rehearing en banc, dated
eg EE og Fan een era Sat ie DA Ree
United States Constitution, Amendment Fourteen,
pe pe feng eT Seo a, ea
.A-70
. A-80
A-1
Filed June 26, 1996
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 95-5439 /5469/5708/5742
BARBARA COLEMAN,
Appellant Nos.
95-5439 /5742
Vz.
JOHN KAYE, Individually, and in his capacity as
Monmouth County Prosecutor; COUNTY
PROSECUTOR’S OFFICE OF THE COUNTY OF
MONMOUTH; JOHN DOES, 1-100; JANE DOES, 1-100
COUNTY OF MONMOUTH,
Intervenor in D.C.
BARBARA COLEMAN
v.
JOHN KAYE, Individually, and in his capacity as
Monmouth County Prosecutor; THE COUNTY
PROSECUTOR’S OFFICE OF THE COUNTY OF
MONMOUTH; JOHN DOES, 1-100; JANE DOES, 1-100
COUNTY OF MONMOUTH
Intervenor in D.C.
John Kaye,
Appellant Nos.
95-5469 /5708
os tnt Rl RS NS
A-2
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 91-cv-01140)
Argued April 29, 1996
Before: COWEN and ROTH, Circuit Judges and
CINDRICH, District Judge*
OPINION OF THE COURT
COWEN, Circuit Judge.
Plaintiff-appellant Barbara A. Coleman! appeals an
order of the district court granting defendant-appellee
Monmouth County’s post-trial motion to vacate a jury
verdict of $15,000 in compensatory damages and $350,000
in punitive damages based upon three findings of inten-
tional sex discrimination. The principal questions we
must decide are whether county prosecutors in New Jer-
sey act as state or county officials when they make per-
sonnel decisions and whether the district court properly
exercised in personam jurisdiction. We hold that county
prosecutors act on behalf of the county in this setting. We
further hold that the County of Monmouth has waived
any defense of lack of personal jurisdiction. See Fern. R.
Civ. P. 12(h)(1). Accordingly, we will reverse the May 4,
1995 order of the district court vacating the jury verdict
against the County of Monmouth.
* Honorable Robert J. Cindrich, United States District Judge for
the Western District of Pennsylvania, sitting by designation.
1 Barbara Coleman died while this case was on appeal.
Shamren Leigh Coleman-Fletcher, Barbara Coleman’s daughter and
executrix, filed a petition to be substituted as the appellant. We
granted the motion to substitute pursuant to Fep. R. App. P. 43(a).
A-3
The jury also found Prosecutor Kaye to be liable in
his individual capacity for $10,000 in compensatory dam-
ages and $50,000 in punitive damages. Kaye appeals the
district court’s denial of his Rule 50(b) motion for judg-
ment as a matter of law on the ground of evidentiary
insufficiency. As we find sufficient evidence in the record
to support a finding of liability against Kaye for both
compensatory and punitive damages, we will affirm the
district court’s denial of Kaye’s motion. Furthermore,
since the jury verdict against the County of Monmouth
must be reinstated, liability for the payment of attorneys’
fees must be apportioned between Kaye and the County
of Monmouth, and we will remand the matter for further
proceedings consistent with this opinion.
I.
Barbara Coleman was employed as an investigator at
the Monmouth County Prosecutor’s Office during John
Kaye’s tenure as Monmouth County Prosecutor. As
County Prosecutor, Kaye had plenary authority in decid-
ing whom to hire, fire, promote or demote at the Mon-
mouth County Office. Although Kaye received input from
subordinates as to the qualifications of persons consid-
ered for promotion, it is uncontested that he possessed
the final authority to determine who worked for the
Monmouth County Prosecutor and in what capacity.
Coleman applied for promotions at the Monmouth
County Prosecutor’s Office in May of 1989, June of 1990
and October of 1990. In May of 1989 Coleman sought to
be promoted to either sergeant or lieutenant. She was not
A-4
promoted to either position. Similarly, Coleman’s applica-
tions to be promoted to sergeant were denied in both
June and October of 1990. On all three occasions, a male
investigator was promoted over Coleman.
On March 12, 1991, Coleman filed a complaint in the
District Court for the District of New Jersey naming as
parties John Kaye, individually and in his official capac-
ity as Monmouth County Prosecutor, the County Prosecu-
tor’s Office of the County of Monmouth, John Does 1-100
and Jane Does 1-100. The County of Monmouth was not
named separately as a defendant. The complaint alleged
that the defendants had discriminated against Coleman
based upon her sex by failing to promote her to sergeant
(three times) and lieutenant (once) on various occasions
in 1989 and 1990. Coleman brought claims under 42
U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and pendent state claims under the
New Jersey Law Against Discrimination (“LAD”), N.].
Stat. ANN. § 10:5-1 et seg. The summons and complaint
were served upon Kaye, who also accepted service on
behalf of the Monmouth County Prosecutor’s Office.
This matter proceeded to trial in district court on
September 20, 1994. On September 29, 1994, the case was
sent to the jury, which made the following pertinent
factual findings: (1) Prosecutor Kaye had intentionally
discriminated against Coleman based upon her sex by not
promoting her to sergeant in June of 1990 and October of
1990; (2) the County of Monmouth did not adopt a policy
or custom of sex discrimination that resulted in Coleman
not being promoted in May of 1989, June of 1990 or
October of 1990; (3) Kaye and/or one or more of his
/
A-5
subordinates who made recommendations to him inten-
tionally discriminated against Coleman because she was a
woman, and such discrimination proximately caused her
to be passed over for promotion in May of 1989, June of
1990 and October of 1990; and (4) Kaye and/or one of his
subordinates did not intentionally discriminate against
Coleman in retribution for her filing a complaint with the
Equal Employment Opportunity Commission (“EEOC”).
The jury’s award of compensatory and punitive damages
against both the County of Monmouth and Prosecutor
Kaye was based upon these findings. The verdict sheet
that the district court submitted to the jury to record its
findings provided no separate section in which it could
articulate the precise grounds upon which the parties had
been held liable.
Faced with the prospect of paying a substantial dam-
ages award, the County of Monmouth filed a motion to
intervene pursuant to Fep. R. Civ. P. 24, which was
granted by the district court. Monmouth County also
filed a motion pursuant to Fep. R. Cw. P. 60(b)(4) to vacate
the jury verdict. The County argued that the jury verdict
should be vacated because Coleman had not properly
effected service of process upon the County. It also con-
tended that Prosecutor Kaye is a state official over whom
the County exercised no control. Monmouth County
maintained that New Jersey law requires a finding of
“control” in order for it to be held liable in damages
under the LAD.? The County argued that since it had no
2 Since the jury found that the County of Monmouth had no
policy of discrimination, the district court entered judgment
against the County under the New Jersey LAD.
A-6
control over Kaye’s personnel decisions, then a fortiori
county prosecutors in New Jersey are not agents of the
counties they serve. Thus, Monmouth County argued that
even if county prosecutors engage in acts of intentional
discrimination against their own employees, such con-
duct northeless cannot expose the counties to liability
under the LAD.
The district court found the County of Monmouth’s
arguments to be convincing and granted its motion to
vacate Coleman’s jury verdict against the County on two
alternative grounds. The district court held that it had
lacked in personam jurisdiction to enter a judgment
against the County of Monmouth because it had not been
served properly under either Fen. R. Crv. P. 4(j)(2) or NJ.
Cr. R. 4:4-4(a)(8), the local procedural rule to which Rule
4(j) refers. Alternatively, the district court found that the
County of Monmouth could not be held liable under the
New Jersey LAD premised upon a theory of respondeat
superior for the actions of Prosecutor Kaye. Applying the
agency principles adopted by the New Jersey Supreme
Court in Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445 (N.J.
1993), the district court held that there was no master/
servant relationship between the County of Monmouth
and Prosecutor Kaye. On the contrary, the district court
concluded that “county prosecutors are controlled by the
Attorney General for the State of New Jersey|[,] a member
of the New Jersey executive branch of government.” Cole-
man v. Kaye, No. 91-1140, s'ip op. at 7 (D.N.J. May 4,
1995).
Prosecutor Kaye responded to the October 17, 1994
jury verdict against him by filing a Fep. R. Civ. P. 50(b)
motion for judgment as a matter of law, arguing that
A-7
there was insufficient evidence in the record to support a
finding that he had discriminated against Coleman. Kaye
also argued that there was an insufficient foundation in
the record to support an award of either compensatory or
punitive damages against him. The district court denied
Kaye’s Rule 50(b) motion in its May 4, 1995 order.
On September 7, 1995, the district court granted
Coleman’s application for attorneys’ fees and costs. The
order provided that Coleman’s counsel be awarded
$101,184.00 in attorneys’ fees and $3,968.92 in costs. Since
the County of Monmouth had already been dismissed
from this action, Prosecutor Kaye was ordered to pay the
entire sum of $105,152.92. This appeal followed.
II.
The district court had jurisdiction pursuant to 28
U.S.C. § 1331, 28 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1367.
We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over jurisdictional issues. Anihuis v. Colt
Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir. 1992).
Our review of the district court’s interpretation and
application of state law is plenary, Hofkin v. Provident Life
& Accident Ins. Co., 81 F.3d 365, 369 (3d Cir. 1996), as is
our review of a denial of a motion for judgment as a
matter of law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1166 (3d Cir. 1993). A Rule 50(b) “motion should be
granted only if, viewing the evidence in the light most
favorable to the nonmovant and giving it the advantage
of every fair and reasonable inference, there is insuffi-
cient evidence from which a jury reasonably could find
liability.” Id.
i
|
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A-8
Punitive damages may be awarded for violation of
the New Jersey LAD “when the wrongdoer’s conduct is
especially egregious.” Lehmann v. Toys ‘R’ Us, Inc., 626
A.2d 445, 464 (N.J. 1993) (quoting Leimgruber v. Claridge
Assocs., 375 A.2d 652, 654 (N.J. 1977)). Therefore, “the
employer should be liable for punitive damages only in
the event of actual participation by upper management or
willful indifference.” Id. Similarly, punitive damages may
be awarded under 42 U.S.C. § 1983 “when the defen-
dant’s conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indif-
ference to the federally protected rights of others.” Smith
v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640 (1983).
“We review the reasonableness of an award of attor-
ney’s fees for an abuse of discretion.” Rode v. Dellarciprete,
892 F.2d 1177, 1182 (3d Cir. 1990). Our review is plenary
“when a district court fails to apply the appropriate stan-
dards for granting legal fees... . ” Board of Trustees of
Trucking Employees of North Jersey Welfare Fund, Inc.-Pen-
sion Fund v. Centra, 983 F.2d 495, 508 (3d Cir. 1992).
Ill.
Although Coleman’s suit against the County of Mon-
mouth and Prosecutor Kaye arose from the same underly-
ing facts, the claims that the defendants raise on appeal
require the resolution of entirely different issues. We will
therefore address their various contentions in separate
sections. First, we will address Coleman’s appeal, which
assails the two grounds upon which the district court
vacated the jury verdict against the County of Mon-
mouth.
A-9
A.
The district court relied upon Fev. R. Cr. P. 4(j)(2)
and New Jersey Court Rule 4:4-4(a)(8) to support its
conclusion that the court lacked in personam jurisdiction
over Monmouth County. Rule 4(j)(2) provides that
[s]ervice upon a state, municipal corporation, or
other governmental organization subject to suit
shall be effected by delivering a@opy of the
summons and of the complaint to its chief exec-
utive officer or by serving the summons and
complaint in the manner prescribed by the law
of that state for the service of summons or other
like process upon any such defendant.
Fev. R. Civ. P. 4(j)(2). The manner of service prescribed
under the local New Jersey rules is set forth in N J. Cy R.
4:4-4(a)(8), which provides, in relevant part, that service
must be effected “by serving a copy of the summons and
complaint . . . on the presiding officer or on the clerk or
secretary thereof.” Reading these two provisions together,
the district court concluded that since Kaye “is not the
presiding officer, clerk or secretary of the County of
Monmouth . . . plaintiff did not properly effect service of
the summons and complaint upon the County of Mon-
mouth.” Coleman v. Kaye, No. 91-1140, slip op. at 4 (D.N.J.
May 4, 1995). As such, the court concluded that “the
jury’s verdict... against the County of Monmouth cannot
stand.” Id.
The district court was correct to the extent that it
concluded that Kaye did not fit the proper description of
anyone designated to receive service of process on behalf
of the County of Monmouth under either Rule 4(j) or N.J.
Cr. R. 4:4-4(a)(8). Moreover, as we explained in Grand
A-10
Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d
476, 492 (3d Cir. 1993), “[a] district court’s power to assert
in personam authority over parties defendant is dependent
not only on compliance with due process but also on
compliance with the technicalities of Rule 4.” This anal-
ysis is not controlling, however, when a party submits
itself to the jurisdiction of the district court, thereby
waiving any claim that the district court lacked in per-
sonam jurisdiction. See Fep. R. Civ. P. 12(h)(1).3 This is
| exactly what happened here.
aA menace RAISE. ROOTES Bt,
| The County of Monmouth became involved in this
| lawsuit both before and after Coleman filed her com-
plaint in district court. For example, before commencing
the present action in district court, Coleman submitted a
complaint to the EEOC. Monmouth County elected to
respond to Coleman’s EEOC complaint. Assistant Mon-
| mouth County Counsel Robert Hrebek sent a letter to Joe
/ G. Rosenberg, the Supervisory Investigator of the EEOC,
advising him that Hrebek had “been assigned to handle
3 Rule 12(h)(1) of the Federal Rules of Civil Procedure
provides as follows:
(h) Waiver or Preservation of Certain Defenses
(1) A defense of lack of jurisdiction over the
person, improper venue, insufficiency of process, or
insufficiency of service of process is waived (A) if
omitted from a motion in the circumstances described
in subdivision (g), or (B) if it is neither made by
motion under this rule nor included in a responsive
pleading or an amendment permitted by Rule 15(a) to
be made as a matter of course.
ances
A-11
[this matter] on behalf of the Monmouth County Prosecu-
tor by Malcolm V. Carton, Esq., Monmouth County Coun-
sel . . . [and to] please direct all future correspondence in
this case to my attention as Assistant County Counsel.”
App. at 145.
After Coleman filed her complaint, Special County
Counsel Richard T. O’Connor sent a letter, dated August
12, 1993, to the clerk of the court. In this letter, O'Connor
requested the clerk to
enter the appearance of the firms of Gerald L.
Dorf, P.C. and Malcolm V. Carton, Monmouth
County Counsel, by Richard T. O’Connor, Spe-
cial County Counsel, on behalf of Defendants
John Kaye individually and in his capacity as
Monmouth County Prosecutor and the County
Prosecutor’s Office of the County of Monmouth
in the above-captioned matter.
Id. at 141. The August 12, 1993 letter listed both O’Connor
and Dorf as “Attorneys for Defendants John Kaye and the
County Prosecutor’s Office of the County of Monmouth.”
Id.
At no time did representatives from the County
Counsel’s Office ever interpose an objection on jurisdic-
tional grounds. See 5A CHartes ALAN WriGHT & ARTHUR R.
MILLER, FeperAL Practice AND Procepure § 1344, at 173 (2d
ed. 1990) (“If defendant appears in the action, he must
interpose any . . . objections he may have by motion or in
his answer or they will be deemed waived by virtue of
Rule 12(h)(1).”). Quite to the contrary, the representations
made by attorneys from the County Counsel’s Office
indicate that Monmouth County was acutely aware of its
possible exposure in this matter. To illustrate, a letter
A-12
dated March 3, 1992 sent by Special County Counsel
O’Connor to Linda B. Kenney, Coleman’s attorney, con-
tains the following admission in the opening sentence:
“As you know, I represent Monmouth County in the above-
captioned matter.” App. at 148 (emphasis added). In
addition, Special Counsel O’Connor noted in a letter
memorandum to the district court dated January 3, 1991,
that “[t]he County of Monmouth shall rely upon the legal
arguments and contentions contained in its supporting
brief... . ” Id. at 153 (emphasis added).
In addition to the foregoing, Assistant County Coun-
sel Hrebek filed papers and motions in this action on
behalf of Kaye and the Monmouth County Prosecutor’s
Office. On April 30, 1991, Hrebek applied to the district
court for an order granting the Monmouth County Pros-
ecutor’s Office a thirty-day extension to file an answer or
a responsive pleading. This letter listed Hrebek as the
“Attorney for Defendants.” Id. at 611. The district court
granted Hrebek’s motion. Moreover, on May 28, 1991,
Hrebek received an additional fifteen-day extension to
file an answer on behalf of Kaye and the Monmouth
County Prosecutor’s Office. Assistant County Counsel
Hrebek did not interpose the defense of lack of personal
jurisdiction with respect to the County of Monmouth in
any one these responsive pleadings.
Finally, on May 24, 1991, Gerald Dorf, Esq., entered
an appearance on behalf of John Kaye “as an individual.”
Id. at 609. Dorf was retained by Kaye with Monmouth
County funds. Given the County’s pervasive involvement
in the litigation of this matter and the County Counsel’s
Office’s open acknowledgement that it was representing
the County’s interests, which by all appearances were
enn
A-13
indistinguishable from those of the Monmouth County
Prosecutor’s Office, we conclude that Monmouth
County’s defense of lack of personal jurisdiction had
effectively been waived long before the County, seem-
ingly as an afterthought, filed its post-trial motion to
vacate on jurisdictional grounds. We therefore hold that
the County of Monmouth was properly before the district
court as a party.
The County of Monmouth also contends that it can-
not be held accountable for Prosecutor Kaye’s actions
because he is a state official over whom the County
exercises no control. The district court agreed, concluding
that Prosecutor Kaye was controlled by the New Jersey
State Attorney General. This is an issue of first impres-
sion, as the New Jersey Supreme Court has yet to address
the specific issue of whether a county prosecutor acts as a
state or county official when making personnel decisions
at the county level.
A review of related authorities leads us to conclude
that county prosecutors in New Jersey can be charac-
terized as having a dual or hybrid status. It is well
established that when county prosecutors execute their
sworn duties to enforce the law by making use of all the
tools lawfully available to them to combat crime, they act
as agents of the State. On the other hand, when county
prosecutors are called upon to perform administrative
tasks unrelated to their strictly prosecutorial functions,
such as a decision whether to promote an investigator,
the county prosecutor in effect acts on behalf of the
A-14
county that is the situs of his or her office. We therefore
predict that the New Jersey Supreme Court, if presented
with a case in this posture, would hold that county prose-
cutors are acting on behalf of the county when they make
personnel decisions.
This conclusion requires us to reach a related issue.
The district court determined that the application of
agency principles, as set forth in the New Jersey Supreme
Court’s decision in Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d
445 (N.J. 1993), provided the analytical framework under
which Coleman’s claims against the County of Mon-
mouth should be scrutinized. We disagree.
Neither the State nor the County of Monmouth exer-
cised “control” over Prosecutor Kaye’s personnel deci-
sions. If Lehmann were held to be controlling in this
context, this would lead to the untenable conclusion that
Prosecutor Kaye was acting on behalf of neither the State
nor the County of Monmouth when he passed over Cole-
man for promotion. We therefore hold that the applica-
tion of strict agency principles is inappropriate in this
setting. As the New Jersey LAD is intended to combat
intentional discrimination, and given that intentional dis-
crimination was perpetrated by county officials here, we
predict that the New Jersey Supreme Court would hold
that Kaye was the Monmouth County policymaker in
regard to personnel actions in the prosecutor’s office and
that the County of Monmouth may be held liable for the
acts of intentional discrimination that occurred.
A-15
1.
The New Jersey Supreme Court in Lehmann ov. Toys ‘R’
Us, Inc., 626 A.2d at 445, set forth the applicable standard
to determine whether an employer can be held liable
under the LAD when an employee raises a hostile envi-
ronment sexual harassment claim against a supervisor.
Lehmann held that in this context, respondeat superior lia-
bility would lie if the agency principles set forth in the
RESTATEMENT (SECOND) OF AGENCY §§ 219-237 (1958) estab-
lished the existence of a master-servant relationship. To
determine whether such a relationship is present, the
RESTATEMENT calls for the application of a “control test.”
See id. § 220(1) (“A servant is a person employed to
perform services in the affairs of another and who with
respect to the physical conduct in the performance of the
services is subject to the other’s control or right to con-
trol.”); see also Pollack v. Pino's Formal Wear & Tailoring,
601 A.2d 1190, 1196 (NJ. Super. Ct. App. Div.) (“[T]he
relationship of master and servant exists whenever the
employer retains the right to determine not only what shall be
done, but how it shall be done.”) (quoting De Monaco v.
Renton, 113 A.2d 782, 783-84 (N.J. 1955)), certif. denied, 611
A.2d 646 (N.J. 1992).
Applying Lehmann, the district court concluded that
it is “clear . . . that the County of Monmouth does not
exercise sufficient control over Prosecutor John Kaye to
establish a master-servant relationship. Rather, county
prosecutors are controlled by the Attorney General for
the State of New Jersey[,] a member of the New Jersey
executive branch of government.” Coleman v. Kaye, No.
91-1140, slip op. at 7 (D.N.J. May 4, 1995). Thus, the court
held that “the County of Monmouth cannot be held liable
A-16
on a theory of respondeat superior for the actions of
Prosecutor John Kaye.” Id. Since both the district court
and the parties consider Lehmann to be the seminal case
here, we will explore the issue of who can be said to
“control” county prosecutors in New Jersey in some
detail.
The office of county prosecutor in the State of New
Jersey is a constitutionally established office. The New
Jersey Constitution provides that
[c]lounty prosecutors shall be nominated and
appointed by the Governor with the advice and
consent of the Senate. Their term of office shall
be five years, and they shall serve until the
appointment and qualification of their respec-
tive successors.
N.J. Const., art. VIL, § 2, par. 1. The specific powers and
authority of the county prosecutor are fully set forth in
Title 2A of the New Jersey Revised Statutes. Each county
prosecutor is vested “with the same powers and [is]
subject to the same penalties, within his county, as the
attorney general shall by law be vested with or subject
to....” N.J. Stat. ANN. § 2A:158-5. The county prosecu-
tor’s oath of office requires that the appointee swear to
faithfully execute the duties of the office “in and for” the
county in which he or she has been appointed. Id.
§ 2A:158-3.
County prosecutors in the State of New Jersey are
fully and exclusively bestowed with appointment powers
as to office staff and personnel. Such appointment powers
are delineated by law as follows: Section 2A:158-15
authorizes a county prosecutor to appoint assistant prose-
cutors; § 2A:157-2 authorizes the county prosecutor to
A-17
appoint county detectives; § 2A:158-18.1 empowers the
prosecutor to appoint “legal assistants” in counties of the
first class; and § 2A:157-10 provides for the appointment
of investigators, such as Coleman, who are “to serve at
[the county prosecutor’s] pleasure. .. . ”
Every year the board of chosen freeholders in each
county appropriates funds to be used by the prosecutor’s
office. Id. § 40:20-1. Expenses incurred by county prosecu-
tors in carrying out their statutory duty to detect, arrest,
indict and convict offenders of the criminal law are paid
by the county treasurer. Id. § 2A:158-7. The counties’ role
in financing the local prosecutors’ offices is further exem-
plified by N.J. Stat. ANN. § 2A:158-16, which provides
that assistant prosecutors’ annual salaries shall “be fixed
by resolution of the board of chosen freeholders on the
recommendation of the county prosecutor... . ”
Similar to the county prosecutor, the New Jersey
Attorney General is a constitutional officer pursuant to
art. V, § 4, { 3 of the New Jersey Constitution. In fur-
therance of this constitutional authority, the New Jersey
Legislature has established the Department of Law and
Public Safety in the State’s executive branch to be headed
by the Attorney General. N.J. Stat. ANN.
§§ 52:17B-1-:17B-2. Pursuant to N.J. Stat. ANN. § 52:17A-4,
the Attorney General is the State’s chief law enforcement
officer. Section 52:17B-103 provides that
[t]he Attorney General shall consult with and
advise the several county prosecutors in matters
relating to the duties of their office and shall
maintain a general supervision over said county
prosecutors with a view to obtaining effective and
uniform enforcement of the criminal laws throughout
A-18
the State. He may conduct periodic evaluations
of each county prosecutor’s office including
audits of funds received and disbursed in the
office of each county prosecutor.
N.J. Stat. ANN. § 52:17B-103 (emphasis added). It thus
appears that although the Attorney General “maintain([s]
a general supervision over . . . county prosecutors,” the
principal concern of that oversight relates to the mainte-
nance of an effective statewide law enforcement policy;
i.e., “obtaining effective and uniform enforcement of the
criminal laws throughout the State.” Id.
New Jersey law also empowers the Attorney General
to intervene in the criminal matters of a county under
certain circumstances. Pursuant to N.J. Stat. ANN.
§ 52:17B-104, the Attorney General is required to pros-
ecute criminal matters for a county if it has no prosecutor.
County prosecutors may also “request in writing the
assistance of the Attorney General,” but solely for the
purpose of a “criminal investigation or proceeding.” Id.
§ 52:17B-105. The Attorney General may then “take what-
ever action he deems necessary to assist the county pros-
ecutor in the discharge of his duties.” Id.
The New Jersey Legislature has granted the Attorney
General the discretionary authority of supersedure of a
county prosecutor:
[w]henever requested in writing by the Gover-
nor, the Attorney General shall, and whenever
requested in writing by a grand jury or the
board of chosen freeholders of a county or the
Bs | assignment judge of the superior court for the
county, the Attorney General may supersede the
county prosecutor for the purpose of prosecuting
———S
A-19
all of the criminal business of the State in said
county, intervene in any investigation, criminal
action, or proceeding instituted by the county
prosecutor, and appear for the State in any court
or tribunal for the purpose of conducting such
investigations, criminal actions or proceedings
as shall be necessary for the protection of the
rights and interests of the State.
Whenever the Attorney General shall have
superseded a county prosecutor as aforesaid,
the county prosecutor, the assistant county pros-
ecutors and other members of the staff of the
county prosecutor shall exercise only such
powers and perform such duties as are required
of them by the Attorney General.
Id. § 52:17B-106 (emphasis added). Thus, the Attorney
General’s supersedure power appears to have been
bestowed with the understanding that it was intended to
ensure the proper and efficient handling of the county
prosecutors’ “criminal business.” Id. This point is further
amplified by the companion law of N.J. Strat. ANN.
§ 52:17B-107(a), which provides that
[w]henever in the opinion of the Attorney Gen-
eral the interests of the State will be furthered
by so doing, the Attorney General may (1)
supersede a county prosecutor in any investiga-
tion, criminal action or proceeding, (2) partici-
pate in any investigation, criminal action or
proceeding, or (3) initiate any investigation,
criminal action or proceeding. In such instances,
the Attorney General may appear for the State
in any court or tribunal for the purpose of con-
-ducting such investigations, criminal actions or
proceedings as shall be necessary to promote
and safeguard the public interests of the State
A-20
and secure the enforcement of the laws of the
State.
Id. § 17B-107(a). Noticeably absent in the supersedure
language in Title 52 is any reference to an intention on the
part of the Legislature to authorize an act of supersedure
simply for the purpose of managing routine personnel
matters. Such concerns were obviously not a legislative
priority.
We recognize that in cases where the Attorney Gen-
eral has taken over the operation of a county prosecutor’s
office, either in case of supersedure or where a county
has no prosecutor, the Attorney General would tempo-
rarily have the responsibility to make personnel decisions
in the county office. With the exception of that extraordi-
nary situation, which has no application here, the Attor-
ney General does not possess oversight authority with
respect to the day-to-day management of the county
prosecutor’s office. It would be an unwarranted exten-
sion of the implications of the Attorney General’s super-
sedure authority to conclude that the mere possibility of
its exercise can somehow serve to bring the conduct at
issue in the instant case within the purview of the Attor-
ney General’s control.
The statutory and constitutional scheme that we have
elaborated upon provides county prosecutors in the State
of New Jersey with a substantial degree of autonomy from
the State government in matters that do not involve the
enforcement of the criminal laws of the State. The decision
whether to promote an investigator falls within the exclu-
sive province of the county prosector [sic]. We therefore
hold that the district court erred in concluding that county
A-21
prosecutors in New Jersey are agents of the State Attorney
General when they make personnel decisions.
2.
Nor can the County of Monmouth be said to control
Prosecutor Kaye’s employment decisions. Indeed,
attempts by various parties to interfere with county pros-
ecutors’ employment prerogatives have been rejected
consistently by New Jersey courts. See Cetrulo v. Byrne,
157 A.2d 297 (N.J. 1960) (county board of chosen free-
holders’ appointment of a legal assistant to prosecutor
beyond the scope of its powers); Zamboni v. Stamler, 489
A.2d 1169 (N.J. Super. Ct. App. Div. 1985) (rejecting
Union County detectives’ challenge to a reorganization
plan that created superior officer positions within the
unclassified civil service of the Prosecutor’s investigative
staff and enabled the Prosecutor to appoint detectives to
serve temporarily in that capacity); cf. Bergen County Bd.
of Chosen Freeholders v. Bergen County Prosecutor, 412 A.2d
130 (N.J. Super. Ct. App. Div. 1980) (upholding decision
of the New Jersey Public Employment Relations Commis-
sion that the county prosecutor, and not the board of
chosen freeholders, is the employer of his subordinates in
the county office for purposes of labor relations and
collective bargaining).
Moreover, New Jersey courts have held that the
county prosecutor enjoys a significant degree of auton-
omy from the county he or she serves. See Cetrulo, 157
A.2d_at 301 (“The Legislature as well as the courts have
long recognized the strong policy considerations which
dictate that since the county prosecutor is charged with
A-22
heavy enforcement responsibilities he must be given
broad powers to appoint his own personnel.”); Mercer
County Bd. of Freeholders v. Mercer County Prosecutor, 412
A.2d 809, 810 (N.J. Super. Ct. App. Div. 1980) (New Jersey
statute that permits the county prosecutor to go to the
county’s assignment judge for authorization of funding in
excess of that approved by the county freeholders “indi-
cates a legislative intent to place the prosecutor in a
dominant position with relation to the freeholders for the
purpose of maintaining his integrity and effectiveness”);
Ruvoldt v. Clark, 499 A.2d 247, 250 (N.J. Super. Ct. Law
Div. 1983) (holding that the county has no control over a
Prosecutor’s nonsalary expenditures that do not exceed
his budget because “it would be incongruous to permit
county government to control the operations and func-
tions of the Prosecutor, a constitutional officer entrusted
with awesome duties of ‘vast importance to the public’ ”).
Both the County of Monmouth and the New Jersey
State Attorney General’s Office, which filed an amicus
brief, make convincing arguments that-under the existing
New Jersey constitutional and statutory scheme, neither
the Attorney General nor the County of Monmouth can
truly be said to “control” the personnel decisions of Pros-
ecutor Kaye. Therefore, if Lehmann provides the appropri-
ate test, we would have to conclude that no governmental
entity in the State of New Jersey can under any circum-
stances be held accountable for a county prosecutor’s acts
of intentional discrimination, no matter how flagrant and
persistent the violations are, because county prosecutors
are neither state nor county officials. We do not believe
that the New Jersey Supreme Court would countenance
such an untoward result.
_—
A-23
The New Jersey Legislature and the New Jersey
Supreme Court have expressed a persistent and strong
commitment to eradicating discrimination in the work-
place. See Lehmann, 626 A.2d at 454 (“The purpose of the
LAD is to eradicate discrimination, whether intentional
or unintentional.”); Grigoletti v. Ortho Pharmaceutical
Corp., 570 A.2d 903, 911 (N.J. 1990) (“[T]he LAD repre-
sents a strong commitment to counteract discrimination
attributable to sex or gender, an evil that is felt acutely in
terms of employment and economic treatment.”); Fuchilla
v. Layman, 537 A.2d 652, 660 (N.J.) (citing New Jersey’s
“clear public policy . . . to abolish discrimination in the
work place”), cert. denied, 488 U.S. 826, 109 S. Ct. 75
(1988); Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d
465, 478 (N.J. 1978) (noting the “repugnant” nature of sex
discrimination and that “New Jersey has always been in
the vanguard in the fight to eradicate the cancer of
unlawful discrimination of all types from our society”).
The New Jersey Supreme Court has further stated
that the LAD, “as remedial social legislation, . . . is
deserving of a liberal construction.” Clowes v. Terminix
Int'l, Inc., 538 A.2d 794, 802 (N.J. 1988). The supreme
court views “the issue of the scope of an employer’s
liability for compensatory and punitive damages” under
the LAD to be “a question of public policy,” in which the
most critical underlying consideration is “which position
provides the most effective intervention and prevention
of employment discrimination.” Lehmann, 626 A.2d at
465.
The extension of Lehmann’s agency principles to Col-
eman’s sex discrimination suit against the County of
A-24
Monmouth is logically unacceptable because county pros-
ecutors are clearly government officials who, reason dic-
tates, must be acting on behalf of some governmental
entity when they make personnel decisions. The agency
paradigm fails here because it would require us to reach
the specious conclusion that Prosecutor Kaye was not
acting under the authority of any state governmental
body, either state or county, when he passed Coleman
over for promotion. We must therefore look to New Jer-
sey constitutional, statutory and decisional law to deter-
mine which level of state government the county
prosecutor “belongs” when making personnel decisions.
3.
Our review of New Jersey Supreme Court decisions
that have discussed the relation of the county prosecutor
to the State Attorney General is both instructive and
supportive of our conclusion that county prosecutors are
acting as county officials when they make employment
decisions. The issue of the county prosecutor’s role in
relation to the Attorney General was discussed in great
detail in Morss v. Forbes, 132 A.2d 1 (N.J. 1957). The
question presented in Morss was whether the New Jersey -
Legislature had the authority to compel a county prosecu-
tor to disclose certain information and records relating to
wiretapping activities authorized by his office. Morss, the
Union County Prosecutor, resisted these demands, argu-
ing that by compelling “the disclosure of information
which the prosecutor has deemed to be confidential, the
[Legislative] Committee is transgressing upon the doc-
trine of separation of powers and actually invading the
exclusive province of a coordinate body.” Id. at 11.
i a al
A-25
The New Jersey Supreme Court rejected this argu-
ment, holding that the county prosecutor could be
required to turn the wiretap information over to the state
legislature. In reaching this conclusion, the court
analyzed the question of “the role . . . the [county] pros-
ecutor plays in the governmental structure.” Id. at 14. In
so doing, the Morss court described the role of the State
Attorney General and county prosecutors in relation to
each other within the framework established by the New
Jersey Constitution:
By provision of the Constitution of 1947,
both the attorney general and the county pros-
ecutor are constitutional officers. Both are
appointed by the Governor with the advice and
consent of the Senate. The attorney general
serves a term coexistent in length with that of
the Governor, but the county prosecutor serves
for five years, or until the appointment and
qualification of a successor. The attorney gen-
eral, as head of the Department of Law and
Public Safety, is within the executive depart-
ment (Art. V, § IV, par. 3), but the provision for
the appointment of prosecutors is found in Art.
VIL, § II, par. 1, ‘Public Officers and Employees.’
Id. at 16-17. The supreme court concluded that “[t]hese
constitutional provisions fail to furnish any guide or stan-
dard with respect to the nature of powers, rights, duties
and responsibilities of either officer, and, consequently,
the task of definition is left to the Legislature.” Id. at 17.
Reviewing the applicable statutes that govern the
relationship between the county prosecutor and the state
A-26
government, the Morss court noted that despite the Attor-
ney General’s statutory power of supersession, “the pres-
ently existing situation under the Constitution of
1947 .. . strongly reaffirms that the [county] prosecutors
are largely independent of control by the attorney gen-
eral....” Id. at 16. The court noted the demonstrable lack
of a “chain of command between the attorney general and
the county prosecutors.” Id. at 17. Evaluating the powers
and responsibilities of the Attorney General and the
county prosecutors within their respective governmental
spheres led the court to recognize “the essential indepen-
dence of the two offices and the disparateness of their
powers.” Id.
The Morss court expressed serious reservations as to
whether the New Jersey statutory scheme “imports a
close supervisory relationship between the attorney gen-
eral and the county prosecutors.” Id. Nor did “it appear
that the Governor is responsible for the daily functioning
of the prosecutor’s office.” Id. at 18. The court also
attached significance to the fact that county prosecutors
“receive their remuneration from the county.” Id.
Although the Morss court paid due regard to the
governor’s power to supersede the county prosecutor’s
authority, it ultimately concluded that “the existence of
this power of supersession does not bring the prosecutors
so directly under the influence of the Governor that they
automatically qualify as fuil-fledged members of the state
executive branch.” Id. Summing up on its lengthy discus-
sion on this issue, the supreme court concluded that
although there is confusion and uncertainty
with regard to [the county prosecutor’s] status
by reason of the fact that his office is created by
pnmsTenSC es RGIS td onan
A-27
the Constitution, he is appointed by the Gover-
nor with the advice and consent of the Senate,
the Legislature prescribes his duties, while he is
paid by the county, . . . there is nevertheless
little doubt but that the executive chain of com-
mand is not sufficiently prominent to enable the
prosecutor to claim any high prerogative which
might be enjoyed by the state executive with
respect to withholding information from the
Legislature. ... The prosecutor is primarily a local
official.
Id. at 18-19 (emphasis added). The Morss court’s pro-
nouncement on the locus of the county prosecutor’s
authority supports our conclusion that county prosecu-
tors act as county officials when they make personnel
decisions. Morss implies that absent direct intervention
by the State, county prosecutors act as county officials
when they are called upon to make administrative deci-
sions on a local level.
One of the authorities upon which the district court
relied in concluding that Prosecutor Kaye had acted as a
state official when he decided not to promote Coleman
was Justice Pashman’s partial concurrence and dissent in
In re Ringwood Fact Finding Committee, 324 A.2d 1, 5-15
(N.J. 1974) (Pashman, J., concurring in part and dissent-
ing in part). In Ringwood, Justice Pashman declared that
“[t}]his State has always recognized the prosecutor’s pri-
macy as a representative of the executive branch.” Id. at 8.
Justice Pashman also attempted to limit the scope of
Morss by citing the alleged implications of the New Jersey
Legislature’s enactment of the Criminal Justice Act of
1970. As explained by Justice Pashman, this state statute
had “consolidated many previous statutes dealing with
A-28
the attorney general’s and prosecutor’s authority in an
attempt to encourage more cooperation and coordination
among law enforcement authorities in combating orga-
nized crime.” Id. at 10. Justice Pashman opined that this
development had “altered the relationship of county
prosecutors to the executive branch” and thereby “ren-
der[ed] inapplicable much of the discussion [in Morss].”
Id. at 11.
Justice Pashman’s opinion in Ringwood provides no
significant support for the proposition that county prose-
cutors in New Jersey always act as state officials irrespec-
tive of the duties that they are called upon to perform. In
addition to not speaking for the majority of the court,
Justice Pashman confined his discussion to the classic law
enforcement functions of the prosecutor’s office, as
opposed to the day-to-day personnel decisions that are at
issue in the instant case. The fact that the prosecutor “[i]n
his county ... is the foremost representative of the
executive branch of government in the enforcement of the
criminal law” is not disputed here. State v. Winne, 96 A.2d
63, 72 (N.J. 1953) (emphasis added). What we must
address is the county prosecutor’s role in the promotion
process on the local level, an issue separate and apart
from the prosecutor’s well-recognized executive investi-
gatory and prosecutorial functions.
The New Jersey Supreme Court revisited the relation
of the county prosecutor to the executive branch of state
government in Cashen v. Spann, 334 A.2d 8 (N.J.), cert.
denied, 423 U.S. 829, 96 S. Ct. 48 (1975). Cashen involved a
search of a private residence based upon a search warrant
affidavit that admittedly was “grossly erroneous in sig-
nificant respects.” Id. at 10. The question presented was
A-29
whether the Morris County Prosecutor and the detectives
who prepared the affidavit, who were defendants in this
action, were acting as agents of the State when their
allegedly tortious conduct had arisen out of the investiga-
tion of criminal activity. The Cashen court held that “in
the context of this case, the prosecutor and the detectives
are to be considered as agents of the State and not the
county.” Id. at 14.
The Cashen court gave no indication of limiting or
otherwise distinguishing the court’s previous decision in
Morss, which had recognized the county prosecutor’s
broad discretion in performing local administrative func-
tions and great degree of independence from the State
government in many respects. As such, the supreme court
was careful to ensure that its holding would not be read
too broadly:
We wish to make it clear . . . that our resolution
of this issue is limited to the factual circum-
stances here presented. We find it appropriate to
regard the defendant officials as State agents
where the alleged tortious conduct arose out of
the investigation of criminal activity, but we
express no opinion on the question of whether
the prosecutor or his detectives can be consid-
ered State or county employees for other pur-
poses. We also leave for another day the
question of whether a county may be held vicar-
iously liable for the conduct of a prosecutor or
his- detectives in other circumstances.
Id. (citation omitted). The issue that the Cashen court
reserved on is before this court today.
)
;
:
A-30
In Dunne v. Fireman's Fund American Insurance Co., 353
A.2d 508 (N.J. 1976), the New Jersey Supreme Court held
that county detectives whose duties consisted of perform-
ing services exclusively for the prosecutor were
“employees of the county” within the meaning of an
insurance policy affording coverage to county employees
acting within the scope of their duties. Applying reason-
ing that could apply equally in the prosecutorial setting,
the court noted that “in preparing and executing the
affidavit upon which the search warrant was based and
conducting the search, [the investigators] were ‘agents of
the State.’ At the same time they were also employees of
and there existed an employer-employee relationship
with the County.” Id. at 512.
The Dunne court stated that “[c]ounty prosecutors’
detectives possess a hybrid status.” Id. at 511. Our review
of New Jersey law has convinced us that the same can be
said about county prosecutors. When county prosecutors
engage in classic law enforcement and investigative func-
tions, they act as officers of the State. But where, as here,
the county prosecutor decides whether an employee at
his or her office is worthy of an open promotion, the
county prosecutor is performing an administrative func-
tion on the local level entirely unrelated to the duties
involved in criminal prosecution. We therefore conclude
that Prosecutor Kaye was acting as a local, county official
when he denied Coleman’s applications for promotion.
Prosecutor Kaye’s constitutional and statutory
authority went far beyond that of a typical supervisory
employee. Kaye possessed final policymaking authority
under state law to manage the internal affairs of his
A-31
office. The New Jersey LAD is intended to redress inten-
tional discrimination, Goodman v. London Metals Exch.,
Inc., 429 A.2d 341, 347 (N.J. 1981), and it is uncon-
troverted that the jury verdict against the County of
Monmouth was supported by multiple findings of inten-
tional discrimination. We hold, therefore, that the dis-
criminatory acts of Kaye and his subordinates may be
imputed to the County of Monmouth since Kaye was the
final policymaking authority acting on behalf of Mon-
mouth County in the prosecutor’s office. We therefore
conclude that the compensatory and punitive damages
awards levied against the County of Monmouth should
not have been vacated on either of the grounds upon
which the district court relied.
IV.
Having rejected the two grounds upon which the
district court vacated the jury verdict against the County
of Monmouth, we now address the merits of the other
claims asserted by the parties to this action. Although
Coleman’s complaint stated claims against the County of
Monmouth and Prosecutor Kaye under 42 U.S.C. § 1983,
New Jersey LAD and Title VII, the verdict sheets issued
to the jury provided no space for the jury to indicate
which causes of action formed the basis of the defen-
dants’ liability. Furthermore, for reasons that are not clear
from the record, the jury was not instructed on all of the
claims that were asserted in Coleman’s complaint. No
objections, however, were raised by any of the parties as
to the content of the instructions, despite the district
court’s apparent decision not to instruct the jury on the
elements of a number of the claims set forth in Coleman’s
A-32
complaint. With these considerations in mind, we will
| now address the other issues that must be resolved in this
case.
A.
The County of Monmouth relies upon the conclu-
sions of the district court as to the service of process issue
and the county prosecutor’s status vis-a-vis the Attorney
General in support of its argument that the issue of
compensatory damages should not have been submitted
to the jury. We have already rejected the merits of these
claims and need not address them again. We therefore
conclude that the compensatory damages award of
$15,000 imposed on the County of Monmouth must be
| reinstated.
An overwhelming portion of the damages award that
the jury assessed against the County of Monmouth
($350,000 out of a total of $365,000) was allocated to
punitive damages. As § 1983 plaintiffs may not obtain
punitive damages against a county defendant, City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748
(1981), the jury must have found implicitly that the
County, through Kaye, had violated the New Jersey
LAD.* The jury’s findings that Prosecutor Kaye and/or
his subordinates intentionally discriminated against Cole-
man on three occasions provides a sufficient foundation
4 The County of Monmouth has not challenged the
propriety of an award of punitive damages against a county
defendant under the 1990 amendments to the New Jersey LAD.
As such, we do not address this issue.
oO
A-33
to support a jury award of punitive damages against the
County of Monmouth. We therefore conclude that the
jury award of punitive damages against Monmouth
County must also be reinstated.
The jury found that Prosecutor Kaye intentionally
discriminated against Coleman by not promoting her to
sergeant in both June of 1990 and October of 1990. Based
upon these findings, the jury awarded Coleman $10,000
in compensatory damages for the “pain, suffering, humil-
iation and mental anguish” she endured as a result of
Kaye’s actions. App. at 396. The jury also awarded Cole-
man an additional $50,000 in punitive damages against
Kaye. $15,000 of this award was premised on the first act
of intentional discrimination in June of 1990. An addi-
tional $35,000 was assessed for the second incident in
October of 1990.
As to the various civil rights claims that Coleman
asserted in her complaint against Prosecutor Kaye, the
district court instructed the jury, without objection, only
upon what it would be required to find in order to hold
Kaye liable for compensatory and punitive damages
under 42 U.S.C. § 1983. Accordingly, we will analyze
Prosecutor Kaye’s arguments under controlling § 1983
case law. We conclude that the jury’s finding that Pros-
ecutor Kaye intentionally discriminated against Coleman
on two occasions is supported by the record and provides
ample justification for its award of compensatory and
punitive damages against Kaye undez § 1983.
A-34
Prosecutor Kaye challenges the jury award of com-
pensatory and punitive damages on the following
grounds. First, Kaye argues that his Rule 50(b) motion for
judgment as a matter of law should have been granted by
the district court because no “actual injury” occurred
here and that § 1983 does not permit plaintiffs to recover
compensatory damages for the type of harm that Cole-
man is alleged to have suffered. Second, Kaye argues
there is insufficient evidence on this record to support a
jury finding that he discriminated against Coleman. Kaye
also makes the related contention that the record is criti-
cally deficient of evidence to support an award of either
compensatory or punitive damages against Kaye in his
individual capacity. We will address these issues seriatim.
Prosecutor Kaye argues that Supreme Court’s deci-
sion in Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978),
precludes an award of compensatory damages for the
personal humiliation and mental anguish Coleman is
alleged to have endured as a consequence of Kaye’s acts
of intentional discrimination. The Supreme Court’s deci-
sion in Memphis Community School District v. Stachura, 477
U.S. 299, 106 S. Ct. 2537 (1986), however, holds otherwise.
The Stachura Court expressly held that “compensatory
damages may include not only out-of-pocket loss and
other monetary harms, but also such injuries as ‘impair-
ment of reputation . . ., personal humiliation, and mental
anguish and suffering.’” Id. at 306, 106 S. Ct. at 2543
(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.
Ct. 2997, 3012 (1974)). We reject Kaye’s argument that
Coleman did not suffer an “actual injury” because a
reasonable jury could credit Coleman's testimony as to
A-35
the personal anguish she suffered as a result of being
passed over for promotion.
Prosecutor Kaye’s evidentiary insufficiency argument
is similarly without merit. The gist of Kaye’s argument is
that he cannot be held personally liable for intentional
discrimination because he merely rubber stamped the
suggestions of his subordinates and had no awareness of
the problems that Coleman was facing. We find ample
evidence in the record to reject this argument. A reason-
able jury could conclude that Kaye, despite his awareness
of Coleman’s qualifications and the serious allegations of
sex discrimination that she had raised, nonetheless chose
to exercise his final policymaking authority in employ-
ment matters in a legally impermissible manner.
After Coleman was denied a promotion in May of
1989, she suspected that she had been discriminated
against and initially sought redress from her superiors in
the Monmouth County Prosecutor’s Office. After her May
1989 rejection, Coleman prepared a memorandum to
Prosecutor Kaye, dated May 24, 1989, which alluded to
her suspicions that she had not been promoted because of
her sex. Coleman felt aggrieved because she perceived
that “men with less experience and seniority were consid-
ered and promoted.” App. at 513. In her May 24, 1989
memorandum to Prosecutor Kaye, Coleman wrote that
[t]hroughout my entire career of over six-
teen years in Law Enforcement, I have never
believed that a person should be promoted
based upon race, sex, creed or national origin.
However, the recent promotion of fourteen men,
four with less time in the Prosecutor’s Office
and one who you passed over nineteen people
A-36
to promote in my field of training and expertise,
has prompted me to ask the following question:
What exactly have I done, or not done, to
warrant being passed over or not even consid-
ered for promotion?5
Id. at 514. Coleman hand delivered this memorandum to
Chief of Investigations Frank R. Licitra, who later
informed Coleman that he had personally submitted it to
Kaye. Prosecutor Kaye never replied to Coleman’s
inquiry.
Coleman sent Kaye a follow-up memorandum, dated
November 6, 1989, concerning her failure to be promoted
in May of 1989. In the November 6, 1989 memorandum,
Coleman asked Kaye to “[p]lease advise [her] what steps
[he] intend[ed] to take to remedy this discrimination.” Id.
at 513. Once again, Kaye did not respond. Moreover,
there is no indication in the record that Coleman’s allega-
tions of discrimination were ever investigated.
Prosecutor Kaye can be held liable under § 1983 if he
had actual knowledge of discriminatory conduct and
acquiesced in it. As we explained in Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988), “[pjersonal involve-
ment can be shown through allegations . . . of actual
knowledge and acquiescence.” Since Coleman had pre-
sented her concerns to Kaye in writing about the discrim-
inatory treatment that she was enduring, and Kaye chose
5 Coleman testified that when she asked Chief Licitra about
why she had not been promoted in May of 1989, Licitra told her
that “it is even worse than that, you weren’t even considered.”
App. at 488.
A-37
to take no action whatsoever, the pattern of discrimina-
tory conduct that Coleman alleges took place at the Mon-
mouth County Prosecutor’s Office at this time takes on
added significance. Coleman presented evidence at trial
that called into question the manner in which she had
been evaluated in comparison to her male counterparts,
who had also applied for promotions on the occasions in
question. For example, Chief Licitra prepared Coleman’s
performance evaluation for the period of November :,
1988 through April 30, 1989. Although Coleman was
rated as “outstanding” in five of six categories,® and was
also given a “plus” or “strong” rating in twenty-nine of
thirty-one subcategories, she received an overall rating of
only “competent.” App. at 521. Specifically, in the cate-
gory of “Investigative Ability,” Coleman received four
pluses (signifying a strength) and two checks (indicating
standard performance). This was the only category of the
six evaluated in which Coleman received a “competent”
rating.
By way of contrast, Michael Campbell, an investiga-
tor who was ultimately selected for promotion over Cole-
man, rated “outstanding” in only one of the six categories
evaluated, that of “Investigative Ability.” Although
Campbell was also given an overall rating of “compe-
tent,” he received an evaluation of “outstanding” in
investigative ability, despite the fact that he had been
rated as “strong” in only two of the six subcategories that
© The six categories evaluated were quantity of work,
quality of work, work habits, investigative ability, personal
traits and “other.”
A-38
are considered under this heading. Id. at 522. Further-
more, in stark contrast to Coleman, Campbell received a
“plus” or “strong” rating in only three of the thirty-one
subcategories upon which candidates for promotion were
evaluated.
Coleman also introduced evidence at trial that pro-
cedures utilized by the Monmouth County Prosecutor’s
Office to evaluate candidates for promotion were altered
in a manner that seriously hindered her efforts to obtain a
promotion. Coleman alleges that General Order 90-3, pro-
mulgated on April 19, 1990, was intended to provide a
pretextual justification for the denial of future promo-
tions. Order 90-3 established as a promotion criterion the
length of time served in a specific unit, as opposed to
seniority as an investigator, which had been a promotion
criterion under the previous system. This new evaluation
process had the effect of giving less-experienced male
investigators a seniority advantage over Coleman when
promotion decisions were to be made.
The jury found Coleman’s testimony to be credible
and her arguments to be convincing. Since Coleman pre-
sented her concerns to Prosecutor Kaye via memoranda
on two occasions and received no response, 4 reasonable
jury could properly reject Kaye’s arguments that he had
no actual knowledge and was not involved in the dis-
crimination that occurred. Viewing this “evidence in the
light most favorable to [Coleman] and giving [her] the
advantage of every fair and reasonable inference,” Light-
ning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993), we conclude that there is sufficient evidence in this
record to support the jury’s finding of liability against
Prosecutor Kaye in his individual capacity.
A-39
Prosecutor Kaye also alleges that there was no legally
sufficient basis from which a jury could award punitive
damages. The jury found that Kaye had intentionally
discriminated against Coleman on two occasions. On the
verdict sheet, the jury assessed $15,000 in punitive dam-
ages for the first violation in June of 1990 and $35,000 for
the second violation in October of 1990. We conclude that
the jury’s finding of two acts of intentional discrimina-
tion, after having been put on notice of a prior act of
discrimination against the same plaintiff, evinces the
requisite “reckless or callous indifference” to Coleman’s
federally protected rights. Smith v. Wade, 461 U.S. 30, 56,
103 S. Ct. 1625, 1640 (1983). We will therefore uphold the
jury’s imposition of a $50,000 punitive damages award
against Prosecutor Kaye in his individual capacity.
V.
Having prevailed on her § 1983 claim against Pros-
ecutor Kaye, Coleman is entitled to an award of reason-
able attorneys’ fees under 42 U.S.C. § 1988. On September
8, 1995, the district court issued a memorandum opinion
discussing the attorneys’ fees issue. Coleman v. Kaye, No.
91-1140 (D.N.J. Sept. 8, 1995). Since by that time the
district court had dismissed the County of Monmouth as
a party to this action, Prosecutor Kaye was required to
pay the entire fee award. After reviewing Coleman’s
attorneys’ fee application, the district court reduced sub-
stantially the hourly rates that Coleman’s attorneys had
sought, noting that “[t]hroughout the entire adjudication
of this matter, this Court has had a significant oppor-
tunity to assess the skills and experience of the attorneys
involved. As a result, this Court will reduce plaintiff's
A-40
counsels’ hourly rates to ‘rates prevailing in the commu-
nity for similar services by lawyers of reasonably compa-
rable skill, experience, and reputation.’ ” Id. at 5 (quoting
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).7
The district court ordered that Prosecutor Kaye would be
liable to pay Coleman $101,184 in attorneys’ fees, in addi-
tion to $3,968.92 in costs. Coleman argues that the district
court abused its discretion when it reduced the hourly
rates sought by her attorneys, based upon its conclusory
observation as to “the skills and experience of the attor-
neys involved.” Coleman, No. 91-1140, slip op. at 5. We
agree.
A.
As we explained in Silberman v. Bogle, 683 F.2d 62, 65
(3d Cir. 1982), our standard of review in this context “is a
narrow one. We can find an abuse of discretion if no
reasonable man would adopt the district court’s view.”
The district court’s discretion, however, is not without
bounds. We have held that a district court may not set
attorneys’ fees based upon a generalized sense of what is
customary or proper, but rather must rely upon the
record. Cunningham v. City of McKeesport, 807 F.2d 49,
7 Coleman’s lead counsel, Linda Kenney, had sought to be
compensated at a rate of $300 per hour. The district court
reduced this amount to $175 per hour. The hourly fees sought by
Ms. Kenney’s associates ranged from $190 to $250. The district
court adjusted this figure to a flat rate of $100 per hour.
Coleman’s counsel also sought between $80 to $90 per hour for
paralegal services. The district court reduced this figure to $40
per hour. Coleman v. Kaye, No. 91-1140, slip op. at 4-5 (D.N.J.
Sept. 8, 1995).
A-41
52-53 (3d Cir. 1986), cert. denied, 481 U.S. 1049, 107 S. Ct.
2179 (1987). It is this requirement that the district court
failed to satisfy.
As the Supreme Court explained in Blum v. Stenson,
465 U.S. 886, 895, 104 S. Ct. 1541, 1547 (1984), “[t]he
statute and legislative history establish that ‘reasonable
fees’ under § 1988 are to be calculated according to the
prevailing market rates in the relevant community. ...”
See Student Pub. Interest Research Group of New Jersey, Inc.
v. AT & T Bell Labs., 842 F.2d 1436, 1442 (3d Cir. 1988)
(“Market rates have served as the prime focus of our
inquiry in ascertaining reasonable attorneys’ fees.”).
Although Coleman’s attorneys submitted affidavits in
support of their assessment of the prevailing market rate,
the district court did not address this evidence. The
record is not clear whether any affidavits were filed in
opposition to the hourly rates claimed by Coleman’s
attorneys. In fact, the district court failed to cite any
record evidence in support of its conclusion that the fees
requested by Coleman’s attorneys were unreasonable.
The number of hours that Coleman’s attorneys rea-
sonably expended in litigating this matter is not in dis-
pute. On this record, however, “the findings of the
district court purporting to justify a reduction in the fee
request are not specific and lack the evidentiary basis to
counter the . . . affidavit of plaintiff’s counsel detailing
the[ir] . . . billing rate[s].” Cunningham, 807 F.2d at 52. We
therefore hold that if the hourly rates are contested, the
district court on remand must conduct a hearing in order
to calculate reasonable hourly rates “according to the
prevailing market rates in the relevant community.” Rode,
892 F.2d at 1183. We express no opinion as to whether the
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hourly rates sought by Coleman’s attorneys are reason-
able, in the absence of a more fully developed record.
B.
Prosecutor Kaye argues that he alone should not
have been required to pay the entire amount of the pre-
vailing party’s attorneys’ fees and costs incurred in this
matter. We agree. As we have held that the jury verdict
against the County of Monmouth is to be reinstated,
Prosecutor Kaye should not have been ordered to pay the
entire amount of the lodestar figure plus costs. It is a
well-established principle that when multiple defendants
are held to be liable in a civil rights action, the proper
course of action for a district court is to allocate respon-
sibility for the payment of fees among the responsible
parties. See, e.g., Vargas v. Hudson County Bd. of Elections,
949 F.2d 665, 677 (3d Cir. 1992). Under this analysis, “each
defendant must bear the prevailing plaintiff’s fees for
time spent on matters clearly related to the claims made
against that defendant.” Williamsburg Fair Hous. Commit-
tee v. Ross-Rodney Hous. Corp., 599 F. Supp. 509, 514
(S.D.N.Y. 1984). On remand, the district court must
apportion the hours that it has found to have been rea-
sonably spent by Coleman’s attorneys on this case
between the claims asserted against Prosecutor Kaye and
those against the County of Monmouth.
A further complication must also be resolved. Our
discussion of the counsel fees claim asserted against Pros-
ecutor Kaye focused exclusively upon his responsibility
to pay reasonable attorneys’ fees under 42 U.S.C. § 1988.
This analysis was appropriate because, as to defendant
A-43
Kaye, Coleman’s § 1983 claim was the only theory of
liability upon which the jury was instructed. The County
of Monmouth, however, was found to have violated the
New Jersey LAD. Coleman argues that the district court
erred in not awarding a contingency fee enhancement
under the attorneys’ fees provision of the LAD. To evalu-
ate this claim, we must review how the counsel fees
provision of LAD has been interpreted by the New Jersey
Supreme Court.
The New Jersey approach to the issue of contingency
enhancement under the LAD is a marked departure from
the Supreme Court’s interpretation and application of
federal fee-shifting statutes. The New Jersey Supreme
Court’s decision Rendine v. Pantzer, 661 A.2d 1202 (NJ.
1995), addressed in a thorough and comprehensive man-
ner the issue of the propriety of contingency enhance-
ments under the fee-shifting provisions of the LAD. See
N.J. Stat. Ann. § 10:5-27.1. The Rendine court elected to
depart from Supreme Court precedent on this issue and
thereby established a rule that strongly favors the award
of contingency enhancements to prevailing parties under
the LAD.
In City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct.
2638 (1992), the Supreme Court was called upon to inter-
pret the attorneys’ fees provisions of the Solid Waste
Disposal Act, 42 U.S.C. § 6972(e), and the Federal Water
Pollution Control Act, 33 U.S.C. § 1365(d). Both these
statutes contain language that is comparable to that of 42
U.S.C. § 1988. See 505 U.S. at 562, 112 S. Ct. at 2641. The
Court rejected the prevailing parties’ argument that they
were entitled to a contingency enhancement, holding that
ee ee ee |
A-44
such relief “is not permitted under the fee-shifting stat-
utes at issue.” Id. at 567, 112 S. Ct. at 2643-44.
The New Jersey Supreme Court in Rendine expressly
rejected the reasoning and analysis of the Dague majority,
holding that “a counsel fee awarded under a fee-shifting
statute cannot be ‘reasonable’ unless the lodestar, calcu-
lated as if the attorney’s compensation were guaranteed
irrespective of result, is adjusted to reflect the actual risk
that the attorney will not receive payment if the suit does
not succeed.” 661 A.2d at 1228. The Rendine court opined
“that contingency enhancements in fee-shifting cases
ordinarily should range between five and fifty-percent of
the lodestar fee, with the enhancement in typical contin-
gency cases ranging between twenty and thirty-five per-
cent of the lodestar.” Id. at 1231. Thus, the district court
on remand must also determine the appropriate degree of
contingency enhancement that the County of Monmouth
will be required to pay under the principles set forth in
Rendine.
VI.
Coleman’s final claim is that she, as a prevailing tort
plaintiff under New Jersey law, is entitled to an award of
prejudgment interest under the New Jersey Court Rules.
Specifically, N.J. Cr. R. 4:42-11(b) provides in relevant
part that:
Except where provided by statute with respect to a
public entity or employee, and except as otherwise
provided by law, the court shall, in tort
actions, . . . include in the judgment simple
interest, calculated as hereafter provided, from
the date of the institution of the action or from a
peace cmp een ON
A-45
_ date 6 months after the date the cause of action
arises, whichever is later, provided that in
exceptional cases the court may suspend the
running of such prejudgment interest. . . .
Id. (emphasis added). Awards of prejudgment interest,
when appropriate, apply only to awards of compensatory
damages. See Belinski v. Goodman, 354 A.2d 92, 96
(N.J.Super. Ct. App. Div. 1976).
We reject Coleman’s claim of entitlement to prejudg-
ment interest against either Prosecutor Kaye or the
County of Monmouth. As to Prosecutor Kaye, the jury’s
instructions were limited to Coleman’s federal civil rights
claim under 42 U.S.C. § 1983. As such, Kaye could only
have been held to be liable under federal law. Therefore,
prejudgment interest cannot be awarded against Prosecu-
tor Kaye under New Jersey Law.
Nor can prejudgment interest be assessed against the
County of Monmouth. The court rule that Coleman
invokes expressly provides that prejudgment interest will
not be awarded against a public entity “[e]xcept where
provided by statute. ...” N.J. Cr. R. 4:42-11(b). There is
no statutory authorization in New Jersey for such an
award. To the contrary, as the New Jersey Appellate
Division stated in Maynard v. Mine Hill Township, 582 A.2d
315, 318 (N.J.Super. Ct. App. Div. 1990), the New Jersey
Tort Claims Act “specifically prohibits prejudgment inter-
est against government tortfeasors.” See N.J. Stat. ANN.
§ 59:9-2(a) (“No interest shall accrue prior to the entry of
judgment against a public entity or public employee.”).
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VIL.
We will affirm the order of the district court to the
extent that it denied Prosecutor Kaye’s motion for a judg-
ment as a matter of law. We will reverse the order of the
district court vacating the jury verdict against the County
of Monmouth and order the judgment entered against the
County be reinstated. If on remand the defendants elect
to challenge the hourly rates put forth by Coleman’s
attorneys, a hearing must be held to determine a reason-
able hourly rate for their services. Once the lodestar is
calculated, responsibility for paying the attorneys’ fees
award is to be allocated among the defendants on a
percentage basis. After the responsibility for the payment
of attorneys’ fees has been properly apportioned, the
district court must also consider the appropriate degree
of contingency enhancement to apply to the County of
Monmouth’s portion of the fee award under New Jersey
law.
Costs taxed to the County Prosecutor’s Office of the
County of Monmouth and John Kaye.
A True Copy:
Teste:
Clerk of the United States Court of
Appeals for the Third Circuit
A-47
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 95-5439 /5469/5708/5742
BARBARA COLEMAN,
Appellant Nos. 95-5439/5742
V.
JOHN KAYE, Individually, and
in his capacity as Monmouth County
Prosecutor; COUNTY PROSECUTOR’S OFFICE OF
THE COUNTY OF MONMOUTH; JOHN DOES, 1-100;
JANE DOES, 1-100
COUNTY OF MONMOUTH,
Intervenor in D.C.
BARBARA COLEMAN
V.
JOHN KAYE, Individually, and
in his capacity as Monmouth County
Prosecutor; THE COUNTY PROSECUTOR’S
OFFICE OF THE COUNTY OF MONMOUTH;
JOHN DOES, 1-100; JANE DOES, 1-100
COUNTY OF MONMOUTH
Intervenor in C.C.
John Kaye,
Appellant Nos. 95-5469/5708
A-48
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 91-cv-01140)
Present: Cowen and Roth, Circuit Judges, Cindrich, Dis-
trict Judge*
JUDGMENT
These causes came on to be heard on the record from
the United States District Court for the District of New
Jersey and were argued by counsel April 29, 1996.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court entered June 20, 1995, be, and the same is
hereby affirmed in part and reversed in part and the
cause is remanded to the District Court with instructions
consistent with the opinion of this Court. Costs taxed
against the County Prosecutor’s Officer of the County of
Monmouth and John Kaye. All of the above in accordance
with the opinion of this Court.
ATTEST:
/S/_ P. Douglas Sirle
Clerk
Dated: June 26, 1996
* Honorable Robert J. Cindrich, United States District
Judge for the Western District of Pennslvania, sitting by
designation.
A-49
Costs taxed in favor of Appellant a follows:
Total for brief . . . $1665.33
Total . . . $1665.33
Certified as a true copy and issued in lieu
of a formal mandate on August 14, 1996
Teste: Calfra Balkee
Chief Deputy Clerk, United States Court
of Appeals for the Third Circuit
A-50
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARBARA COLEMAN, : Civ. No. 91-1149
Plaintiff, (GEB)
: MEMORANDUM
: OPINION
JOHN KAYE et al., (Filed
Defendants. May 4, 1995)
BROWN, District Judge
This matter comes before the Court on the County of
Monmouth’s motion to intervene and vacate the verdict
and defendant, John Kaye’s motion for judgment as a
matter of law, or in the alternative, for a new trial and/or
to alter or amend the judgment below. For the reasons set
forth in this Memorandum Opinion, this Court will grant
the County of Monmouth’s motion to intervene and
vacate the judgment. Moreover, the Court will deny
defendant Kaye’s motions.
I. BACKGROUND
In the present action, plaintiff Barbara Coleman sued
defendants John Kaye and the County Prosecutor’s Office
of the County of Monmouth alleging that they discrimi-
nated against her based on gender. Following a seven-day
trial, the jury deliberated and found that: (1) Prosecutor
John Kaye intentionally discriminated against plaintiff
based upon gender by not promoting her to sergeant in
A-51
June 1990 and October 1990; (2) the County of Monmouth
did not adopt a policy or custom of sexual discrimination
that resulted in plaintiff not being promoted in May 1989,
junc 1990 and October 1990; (3) Prosecutor John Kaye
“and/or one or more of his subordinates who made rec-
ommendations to him intentionally discriminated against
plaintiff because she was a woman, which discrimination
proximately caused her non-promotion” in May 1989,
June 1990 and October 1990; (4) Prosecutor John Kaye
and/or one or more of his subordinates did not inten-
tionally retaliate against plaintiff because she filed an
EEOC complaint. See Verdict Sheet. Specifically, the jury
found that Prosecutor John Kaye intentionally discrimi-
nated against plaintiff based upon gender by not promot-
ing her to Sergeant in June 1990 and again in October
1990. See Second Verdict Sheet. Moreover, the jury found
“Prosecutor Kaye and/or one or more of his subordinates
who made recommendations to him intentionally dis-
criminate[d] against plaintiff because she was a woman,
which discrimination proximately caused her non-promo-
tion to Sergeant” in May 1989, June 1990 and October
1990. Id.
As a result, the jury awarded plaintiff Coleman
$15,000 against the County of Monmouth for compensa-
tory damages and $350,000 against the County of Mon-
mouth for punitive damages. See Verdict Sheet on
Damages. In regards to defendant Kaye, the jury awarded
plaintiff $10,000 in compensatory damages and $50,000 in
punitive damages; $15,000 attributable to the June 1990
incident and $35,000 attributable to the October 1990
incident. Id.
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Il. DISCUSSION
A. County or Monmoutn’s Motion To INTERVENE
AND VACATE THE VERDICT
In the present controversy, the County of Monmouth
moves to intervene and vacate the $365,000.00 verdict
entered against it. Fep. R. Crv. P. 24 provides in pertinent
part that
... anyone shall be permitted to intervene in an
action . . . (2) when the applicant claims an
interest relating to the property or transaction
which is the subject of the action and the appli-
cant is so situated that the disposition of the
action may as a practical matter impair or
impede the applicant’s ability to protect that
interest .. .
Id. Because the County of Monmouth asserts that it was
never a party to the action, and because a verdict in the
amount of $365,000.00 was entered against it, the County of
Monmouth clearly has an interest in the subject matter of
this action. Thus, this Court will grant the County of Mon-
mouth’s motion to intervene pursuant to Fep. R. Civ. P. 24.
The County of Monmouth has also made a motion to
vacate the $365,000.00 verdict pursuant to Fep. R. Cuv. P.
60(b)(4) which provides that on motion the court can
relieve a party from a final judgment if such judgment is
void. Id. It is the County of Monmouth’s position that
because it was never a party to the action, the $365,000.00
judgment is void. Thus, this Court must determine
whether the County of Monmouth was a party to the
above-captioned action.
A-53
Pursuant to Fep. R. Cw. P. 3, civil actions are com-
menced upon the filing of a complaint. Id. Along with
filing the complaint, the plaintiff is required to issue a
summons which properly identifies the defendants to the
action. See Fep. R. Crv. P. 4(a). Specifically, Fen. R. Cry. P.
4(j)(2) states that:
Service upon a state, municipal corporation, or
other governmental organization subject to suit
shall be effected by delivering a copy of the
summons and of the complaint to its chief exec-
utive officer or by serving the summons and
complaint in the manner prescribed by the law
of that state for the service of summons or other
like process upon any such defendant.
Id. The New Jersey Court Rules provide that service of
process upon local governments must be effected “by
serving a copy of the summons and complaint . . . on the
presiding officer or on the clerk or secretary thereof.” See
N.J. Court Rule 4:4-4(a)(8). Thus, for the County of Mon-
mouth to be properly served, plaintiff was required to
serve a copy of the summons and complaint “on the
presiding officer or on the clerk or secretary” of the
County of Monmouth. In the present action, plaintiff
served a copy of the summons and complaint on defen-
dant John Kaye, Monmouth County Prosecutor. Defen-
dant John Kaye, however, is not the presiding officer,
clerk or secretary of the County of Monmouth. Accord-
ingly, plaintiff did not properly effect service of the sum-
mons and complaint upon the County of Monmouth.
Plaintiff’s counsel asserts that “the fact that the
County was not named as a defendant in the instant
action is simply inconsequential. The fact is that the
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County knew about the instant action from the inception
more than four years ago.” See Pl. Opp. Br. dated Nov. 17,
1994 at 6-7. Plaintiff’s counsel’s contention that the
County of Monmouth had notice of the lawsuit and there-
fore service was “simply inconsequential” is meritless. As
the Third Circuit held in Grand Entertainment Group v. Star
Media Sales, 988 F.2d 476 (3d Cir. 1993),
There is nothing strange about our conclusion
that notice, though necessary, is not sufficient to
effect service. Similar principles exist in Anglo-
American law. Although notice underpins Fed-
eral Rule of Civil Procedure 4 concerning ser-
vice, notice cannot by itself validate an other-
wise defective service. Proper service is still a
prerequisite to personal jurisdiction. Inquiry
into the propriety of service is separate from,
and in addition to, the due process concerns
present in an inquiry into the notice itself. A
district court’s power to assert in personam
authority over parties defendant is dependent
not only on compliance with due process but
also on compliance with the technicalities of
Rule 4. Notice to a defendant that he has been
sued does not cure defective service. .
Id. at 492. Because plaintiff failed to properly effective
service of process on the County of Monmouth, this
Court did not acquire personal jurisdiction over the
County of Monmouth. As such, the jury’s verdict of
$15,000 in compensatory damages and the $350,000 in
punitive damages against the County of Monmouth can-
not stand. Accordingly, this Court will vacate the
$365,000 jury award rendered against the County of Mon-
mouth.
A-55
Alternatively, the County of Monmouth asserts that it
cannot be held liable under a theory of respondeat supe-
rior for any of Prosecutor Kaye’s actions. In Lehmann v.
Toys ‘R’ Us, 132 N.J. 587 (1993), the New Jersey Supreme
Court held that employers can be liable for the acts of
their employees. Id. at 619. Specifically, the New Jersey
Supreme Court held that “employer liability . . . shall be
governed by agency principles.” Id. Referencing Section
219 of the Restatement (Second) of Agency, the supreme
court noted that:
(1) A master is subject to liability for the torts
of his servants committed while acting in the
scope of their employment.
(2) A master is not subject to liability for the
torts of his servants acting outside the scope of
their employment, unless:
(a) the master intended the conduct or
consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable
duty of the master, or
(d) the servant purported to act or to
speak on behalf of the principal and there
was reliance upon apparent authority, or he
was aided in accomplishing the tort by the
existence of the agency relation.
Id. (quoting RestaTEMENT (SECOND) oF AcENcy § 219).
The principles of agency law presuppose that a mas-
ter-servant relationship exists between the parties in
question. As the court noted in Morgan v. Air Brook Lim-
ousine, Inc., 211 N.J. Super. 84 (N.J. Super. Ct. Law Div.
A-56
1986), New Jersey courts employ a “control test” to deter-
mine whether or not a master-servant relationship is
present. Id. at 105; see also Stanley v. State Industries, 267
N.J. Super. 167, 172 (N.J. Super. Ct. Law Div. 1993) (“Con-
trol is the essence of the employer-employee, master-
servant and principal-agent relationship.” (citations omit-
ted)). Namely, courts will find the existence of a master-
servant relationship “ ‘whenever the employer retains the
right to direct the manner in which the business shall be
done, as well as the result to be accomplished, or in other
words, not only what shall be done, but how it shall be
done.’ ” Id. at 105 (citation omitted). Thus, this Court
must initially determine whether a master-servant rela-
tionship existed between the County of Monmouth and
Prosecutor John Kaye.
Specifically, this Court must determine whether the
County of Monmouth exercises control over Prosecutor
John Kaye. Pursuant to N.J.S.A. § 2A:158-1, each county
prosecutor is appointed by the “governor with the advice
and consent of the senate to serve for a term of 5
years. ...” Id. In Morss v. Forbes, 24 N.J. 341 (1957), the
New Jersey Supreme Court commented that:
In truth, we encounter much difficulty in defin-
ing with complete exactitude the legal status of
the prosecutor in our governmental scheme... .
there is confusion and uncertainty with regard
to his status by reason of the fact that [the
prosecutor’s] office is created by the Constitu-
tion, he is appointed by the Governor with the
advice and consent of the Senate, the Legislature
prescribes his duties, while he is paid by the
county, plus the fact that the freeholders and the
A-57
assignment judge of the county have general
powers of supersedure .
Id. at 372. Nevertheless, the New Jersey Supreme Court
noted that “the Governor enjoys a very real authority
over the county prosecutors through his powers to super-
sede them in particular cases. To this extent, at least, the
prosecutor’s office is not completely divorced from con-
trol by the state executive.” Id. at 371. As Justice Pashmam
noted in In re Investigation Regarding Ringwood Fact Find-
ing Comm., 65 N.J. 512 (1974), New Jersey “has always
recognized the prosecutor’s primacy as a representative
of the executive branch.” Id. at 526 (Pashman, J., concur-
ring in part and dissenting in part). Continuing, Justice
Pashman commented that:
The attorney general is free to supersede the
prosecutor whenever he feels the interests of the
State will be furthered by his doing so. . . . The
effect of [this power] is to bring the county
prosecutor more closely within the control and
supervision of the executive branch through the
attorney general, from whom the prosecutor’s
powers and authority were originally taken.
Id. at 529-30 (Pashman, J., concurring in part and dissent-
ing in part) (citations omitted); see also State v. Winne, 12
N.J. 152, 171 (1953) (“In his county, as we have seen, the
prosecutor is the foremost representative of the executive
branch of government in the enforcement of the criminal
law.”). It is clear to this Court that the County of Mon-
mouth does not exercise sufficient control over Prosecu-
tor John Kaye to establish a master-servant relationship.
Rather, county prosecutors are controlled by the Attorney
General for the State of New Jersey; a member of the New
A-58
Jersey executive branch of government. As such, the
County of Monmouth cannot be held liable on a theory of
respondeat superior for the actions of Prosecutor John
Kaye. Accordingly, this Court must vacate the $365,000
jury award rendered against the County of Monmouth on
this ground as well.
C. DereNDANT Kaye’s Post-Triat Fep. R. Civ. P. 50
MOoTION
Defendant John Kaye moves for judgment as a matter
of law pursuant to Fen. R. Civ. P. 50(b)! arguing that there
was insufficient evidence for the jury to return a verdict
of discrimination based on gender. As the district court
stated in Schreiber v. Shuler, 1995 WL 60012 (E.D. Pa. Feb.
10, 1995),
In ruling on a motion for judgment as a matter
of law, a court must view the evidence in the
light most favorable to the non-moving party
and determine whether the record contains the
minimum quantum of evidence from which a
1 Fep. R. Civ. P. 50(b) states that:
Whenever a motion for judgment as a matter of law
made at the close of all the evidence is denied or is for
any reason not granted, the court is deemed to have
submitted the action to the jury subject to a later
determination of the legal questions raised by the
motion. Such a motion may be renewed by service
and filing not later than 10 days after entry of
judgment. A motion for a new trial under Rule 59 may
be joined with a renewal of the motion for a judgment
as a matter of law, or a new trial may be requested in
the alternative.
Id.
A-59
jury might reasonably afford relief.” Stated
another way, such a motion should be granted
only if no reasonable jury could decide in that
party’s favor.
Id. at *1 (citing Keith v. Truck Stops Corp. of America, 909
F.2d 743, 745 (3d Cir. 1990); Indian Coffee Corp. v. Proctor &
Gamble Co., 752 F.2d 891, 894 (3d Cir. 1985), cert. denied,
474 U.S. 863 (1985)). “In other words, ‘the court should
grant the motion for a judgment as a matter of law only
if, “viewing all the evidence which has been tendered and
should have been admitted in the light most favorable to
the party opposing the motion, no jury could decide in
that party’s favor.” ’” China Resource Products (U.S.A.) v.
Fayda Intern., 856 F. Supp. 856, 859 (D.Del. 1994) (citations
omitted). After presiding over the trial, this Court con-
cludes that the record contained at least the “minimum
quantum” of evidence necessary for the jury to find gen-
der discrimination. Accordingly, this Court will deny
defendant Kaye’s motion for a judgment as a matter of
law on all issues of liability.
Defendant Kaye also moves for a judgment as a
matter of law pursuant to Fep. R. Cw. P. 50(b) on the
issues of compensatory and punitive damages. Speci-
fically, defendant Kaye asserts that plaintiff is not entitled
to either compensatory or punitive damages. In New Mar-
ket Inv. Corp. v. Fireman's Fund Ins. Co., 774 F. Supp. 909
(E.D.Pa. 1991), the district court set forth the standard of
review that a district court must employ when evaluating
a jury’s damage award. Id. at 917. The district court stated
that:
A-60
It is not this Court’s prerogative to substi-
tute its own judgment as to the amount of dam-
ages for that of the jury. Thus, regardless of
whether the trial judge agrees or disagrees with
the jury’s verdict, the verdict must be upheld so
long as it is supported by a “minimum quantity
of evidence from which a jury might reasonably
[decline to] afford relief.”
Id. (citing Ford Motor Co. v. Summit Motor Products, Inc.,
930 F.2d 277, 290 (3d Cir.), cert. denied, 502 U.S. 939
(1991)). Because this Court has already vacated the
$365,000.00 jury award against the County of Monmouth,
this Court must only consider the compensatory and
punitive damages rendered against defendant Kaye. As
mentioned previously, the jury found that defendant
Kaye intentionally discriminated against plaintiff on the
basis of gender, and therefore awarded plaintiff $10,000
in compensatory damages and $50,000 in punitive dam-
ages.
This Court will first consider the jury’s compensatory
damage award. In Abrams v. Lightolier, 841 F. Supp. 584
(D.N.J. 1994), aff'd, _ F.3d __, 1995 WL 124626 (3d Cir.
March 24, 1995), the district court stated that under New
Jersey’s Law Against Discrimination, “a plaintiff may
recover [compensatory] damages for pain, suffering,
humiliation, or mental anguish experienced as a direct
result of a discriminatory act.” Abrams, 841 F. Supp. at 593
(citing N.J.S.A. § 10:5-13). Moreover, the district court
noted that such compensatory damage awards have gen-
erally been nominal. Id. At trial, plaintiff testified that she
suffered humiliation and mental anguish as a direct result
of defendant Kaye’s discriminatory acts. The jury found
plaintiff Barbara Coleman’s testimony credible and
ys
Bt
ee
A-61
awarded plaintiff $10,000 in compensatory damages
against defendant Kaye for two separate incidents of
gender discrimination. After carefully reviewing the
record, this Court cannot find that the jury award of
$10,000 in compensatory damages is either excessive or
unreasonable. Thus, this Court will not disturb the jury
award of $10,000 in compensatory damages.
This Court must also consider the jury’s $50,000
award of punitive damages rendered against defendant
Kaye. In Levinson v. Prentice-Hall, Inc., 868 F.2d 558 (3d
Cir. 1989), the Third Circuit recognized that punitive
damages are allowable under New Jersey’s Law Against
Discrimination. Id. at 562-63. The Third Circuit noted,
however, that a punitive damage award “must bear a
reasonable relationship to the compensatory damages
awarded.” Id. at 564. In the present case, the jury deter-
mined that defendant John Kaye intentionally discrimi-
nated against plaintiff based upon gender by not
promoting her to Sergeant in June 1990 and again in
October 1990. See Second Verdict Sheet. As a result, the
jury awarded plaintiff $50,000 in punitive damages;
$15,000 attributable to the June 1990 incident and $35,000
attributable to the October 1990 incident. The jury’s total
punitive damage award is exactly five times the amount
of the compensatory damages awarded. This Court can-
not find the relationship between the compensatory and
punitive damages awarded unreasonable, especially con-
sidering that the jury found that defendant John Kaye
intentionally discriminated against plaintiff on two sepa-
rate occasions. Accordingly, the Court will not disturb the
jury award of $50,000 in punitive damages.
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D. Derenpant Kaye’s Motion For A New TriAL
In the alternative, defendant Kaye has made a motion
for a new trial pursuant to Fep. R. Civ. P. 59. Specifically,
Fep. R. Crv. P. 59(a) establishes that “{a] new trial may be
granted to all or any of the parties and on all or part of
the issues .. . in an action in which there has been a trial
by jury. ...” Id. The district court’s ability to grant a new
trial “is limited to those circumstances where a miscar-
riage of justice would result if the verdict were to stand.
The purpose of this policy is to ensure that the trial court
does not supplant the jury verdict with its own.” Abrams,
841 F. Supp. at 592 (citations omitted). Generally,
“[c]ourts do not grant new trials unless it is reasonably
clear that prejudicial error has crept into the record or
that substantial justice has not been done, and the burden
of showing harmful error rests on the party seeking the
new trial.” 11 CHarLtes A. WRIGHT AND ARTHUR R. MILLER,
FEDERAL PRACTICE AND PRrocepurRE § 2803, at 32 (1973); see
also Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,
211 (3d Cir. 1992), cert. denied, 113 S.Ct. 1285 (1993) (trial
court’s power to order new trial limited to instances in
which “a ‘miscarriage of justice would result if the ver-
dict were to stand’ ”) (quoting Williamson v. Consol. Rail
Corp., 926 F.2d 1344, 1352 (3d Cir. 1991)); Lighting Lube,
Inc. v. Witco Corp., 802 F. Supp. 1180, 1186 (D.N.J. 1992),
aff'd, 4 F.3d 1153 (3d Cir. 1993) (“ ‘[T]he following
grounds have been recognized as general grounds for a
new trial: the verdict is against the clear weight of the
evidence; damages are excessive; the trial was unfair; and
that substantial errors were made in the admission or
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rejection of evidence or the giving or refusal of instruc-
tions.’ ” (citations omitted). In Wagner v. Fair Acres Geria-
tric Center, __ F.3d ___, #995 WL 107387 (3d Cir. March
15, 1995), the Third Circuit stated that “[t]he authority to
grant a new trial resicles in the exercise of sound discre-
tion by the trial court, and will only be disturbed if the
court abused that discretion.” Id. at *13 (citing Allied
Chemical Corp. v. Daiflon, Inc., 449 US. 33, 36 (1980);
American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943
(3d Cir.), cert. denied, 469 U.S. 854 (1984)). After presiding
over the trial and carefully considering defendant Kaye’s
motion, this Court is unable to find that any of the above
grounds for a new trial have been satisfied. Accordingly,
this Court must deny defendant Kaye’s application for a
new trial pursuant to Fep. R. Civ. P. 59(a). An appropriate
order is filed herewith.
A-64
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARBARA COLEMAN, Civ. No. 91-1140(GEB)
Plaintiff,
v. ORDER
JOHN KAYE et al., (Filed
Defendants. May 4, 1995)
For the reasons set forth in this Memorandum Opin-
ion.
It is this 3rd day of May, 1995.
ORDERED that the County of Monmouth’s motion to
intervene pursuant to Fep. R. Civ. P. 24 be and is hereby
GRANTED; and it is
FURTHER ORDERED that the County of Mon-
mouth’s motion to vacate the verdict pursuant to Feb. R.
Crv. P. 60(b)(4) be and is hereby GRANTED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion for judgment as a matter of law pursuant to Fep.
R. Crv. P. 50(b) be and is hereby DENIED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion to alter or amend the judgment below be and is
hereby DENIED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion for a new trial pursuant to Fep. R. Civ. P. 59(a) be
and is hereby DENIED; and it is
FURTHER ORDERED that defendant John Kaye shall
submit any opposition to plaintiff’s counsel’s application
nema
A-65
for attorney’s fees by May 21, 1995 and that plaintiff shall
submit any reply thereto by May 28, 1995.
/s/ Garrett E. Brown, Jr.
GARRETT E. BROWN, JR.
U.S.D.J.
A-66
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARBARA COLEMAN,
Plaintiff, Civ. No. 91-1140 (GEB)
bi : JUDGMENT ORDER
: AND AMENDED
OHN KAYE et al.,
ea : ORDER
Defendants.
(Filed May 23, 1995)
BROWN, District Judge
This matter having come before the Court on plaintiff
Barbara Coleman’s action alleging that defendants Pros-
ecutor John Kaye and the County Prosecutor’s Office of
the County of Monmouth discriminated against her based
on gender; and this Court having conducted a seven-day
jury trial; and the jury having deliberated and found that:
(1) Prosecutor John Kaye intentionally discriminated
against plaintiff based upon gender by not promoting her
in May 1989 and/or in June 1990 and/or October 1990;
(2) the County of Monmouth did not adopt a policy or
custom of sexual discrimination that resulted in plaintiff
not being promoted in May 1989 and/or June 1990 and/
or October 1990; (3) Prosecutor John Kaye “and/or one or
more of his subordinates who made recommendations to
him intentionally discriminated against plaintiff because
she was a woman, which discrimination proximately
caused her non-promotion” in May 1989 and/or June
1990 and/or October 1990; (4) Prosecutor John Kaye did
not intentionally decide not to promote plaintiff in June
1990 and/or October 1990 in retaliation for her filing an
A-67
EEOC complaint on November 7, 1989; (5) Prosecutor
John Kaye and/or one or more of his subordinates did
not intentionally retaliate against plaintiff because she
filed an EEOC complaint by not promoting her in June
1990 and/or October 1990; (6) Prosecutor John Kaye did
not intentionally discriminate against plaintiff based
upon gender by not promoting her to Sergeant in May
1989; (7) Prosecutor John Kaye intentionally discrimi-
nated against plaintiff based upon gender by not promot-
ing her to Sergeant in June 1990 and again in October
1990; (8) Prosecutor John Kaye did not intentionally dis-
criminate against plaintiff based upon her gender by not
promoting her to Lieutenant in June 1990; (9) Prosecutor
John Kaye “and/or one or more of his subordinates who
made recommendations to him intentionally discrimi-
nate[d] against plaintiff because she was a woman, which
discrimination proximately caused her non-promotion to
Sergeant” in May 1989, June 1990 and October 1990; (10)
Prosecutor John Kaye “and/or one or more of his subor-
dinates who made recommendations to him [did not]
intentionally discriminate against plaintiff because she
was a woman, which discrimination proximately caused
her non-promotion to Lieutenant in June 1990”; (11) Pros-
ecutor John Kaye did not intentionally discriminate
against plaintiff based upon gender by not promoting her
to Lieutenant in May 1989; and (12) Prosecutor John Kaye
“and/or one or more of his subordinates who made rec-
ommendations to him [did not] intentionally discriminate
against plaintiff because she was a woman, which dis-
crimination proximately caused her non-promotion to
Lieutenant in May 1989”; and the jury having awarded
A-68
plaintiff Coleman $15,000 against the County of Mon-
mouth for compensatory damages and $350,000 against
the County of Monmouth for punitive damages; and the
jury having further awarded plaintiff $10,000 against
Prosecutor John Kaye for compensatory damages and
$50,000 against Prosecutor John Kaye for punitive dam-
ages; and good and sufficient cause having been shown;
It is this 23rd day of May, 1995,
ORDERED that the jury’s above-mentioned findings
and award of damages be and are hereby ENTERED as
the FINAL: JUDGMENT of this Court; and it is
FURTHER ORDERED that the County of Mon-
mouth’s motion to intervene pursuant to Fen. R. Civ. P. 24
be and is hereby GRANTED; and it is
FURTHER ORDERED that the County of Mon-
mouth’s motion to vacate the verdict pursuant to Fep. R.
Crv. P. 60(b)(4) be and is hereby GRANTED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion for judgment as a matter of law pursuant to Fep.
R. Crv. P. 50(b) be and is hereby DENIED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion to alter or amend the judgment below be and is
hereby DENIED; and it is
FURTHER ORDERED that defendant John Kaye’s
motion for a new trial pursuant to Fep. R. Civ. P. 59(a) be
and is hereby DENIED; and it is
FURTHER ORDERED that plaintiff may file a supple-
mental fee application by May 22, 1995 and defendant
A-69
John Kaye shall submit any Opposition to plaintiff’s coun-
sel’s application for attorney’s fees by June 15, 1995 and
that plaintiff shall submit any reply thereto by June 20,
1995.
/s/ Garrett E Brown
GARRETT E. BROWN, JR.,
U.S.D.J.
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A-70
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARBARA COLEMAN,
Civ. No. 91-1140 (GEB)
Plaintiff,
v. : ORDER
JOHN KAYE et al., (Filed
Defendants. , Jun. 16, 1995)
This matter having come before the Court on plain-
tiff’s request pursuant to General Rule 12(I) of the Rules
of this Court for reconsideration of this Court’s Mem-
orandum Opinion issued on May 3, 1995 in which the
Court granted the County of Monmouth’s motion to
intervene and vacate the judgment; and the Court having
reviewed the record and considered the papers submitted
herein; and it appearing that plaintiff is merely raising
her disagreement with the Court’s initial decision; and
this matter being decided without oral argument pur-
suant to Fep. R. Civ. P. 78; and good cause having been
shown;
It is this 15th day of June, 1995,
ORDERED that plaintiff’s motion for reconsideration
pursuant to General Rule 12(I) be and is hereby DENIED.
/s/ Garrett E. Brown Jr.
GARRETT E. BROWN, JR.,
US.DJ.
EP LER ER Fhe RAEN ay Ps Steg,
A-71
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARBARA COLEMAN,
Plaintiff : Civ. No. 91-1140 (GEB)
ae : MEMORANDUM
JOHN KAYE et al., OPINION
Defendants. ' (Filed Aug. 17, 1995)
GARRETT E. BROWN, JR., U.S.D.].
This matter comes before the Court on plaintiff's
counsels’ request for attorneys’ fees pursuant to 42 U.S.C.
§ 2000e-5(k) and N.J.S.A. § 10:5-27.1. For the reasons set
forth in this Memorandum Opinion, issued without oral
argument pursuant to Fep. R. Civ. P. 78, this Court wil]
award plaintiff’s counsel $105,146.92 representing all
attorneys’ fees and costs incurred by plaintiff’s counsel in
this matter.
I. BACKGROUND
This Court adequately set forth the factual back-
ground of this action in the Memorandum Opinion dated
May 3, 1995.
Il. DISCUSSION
Both Title VII and New Jersey’s Law Against Dis-
crimination authorize courts to award reasonable attor-
neys’ fees to prevailing parties in discrimination actions.
A-72
See 42 U.S.C. § 2000e-5(k); N.J.S.A. § 10:5-27.1. The deter-
mination of awarding reasonable attorneys’ fees involves
several steps. First, the court must determine whether the
fee applicant is a “prevailing party.” To be considered a
prevailing party, the petitioner must have obtained at
least some form of relief on the merits, e.g., a judgment,
consent decree or settlement, that changes the legal rela-
tionship of the parties. Farrar v. Hobby, 113 S. Ct. 566, 573
(1992); Texas State Teachers Ass'n v. Garland Indep. School
Dist., 489 U.S. 782, 792 (1989); Hewitt v. Helms, 482 U.S.
755, 760 (1987). If the court concludes that the petitioner
was a prevailing party in the underlying litigation, the
next step is to determine a reasonable fee. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1988). To determine a reason-
able fee, the court first arrives at a lodestar, which is the
product of a reasonable hourly rate multiplied by the
total hours reasonably expended on the successful claims.
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)
(quoting Hensley, 461 U.S. at 433). The party seeking fees
must demonstrate that its fee request is reasonable, and
must meet this burden by submitting evidence to estab-
lish the hours worked and the rates claimed. Id. In statu-
tory fee cases such as here, the burden then shifts to the
challenger to the fee award, to submit affidavits or a brief
challenging the requested fee. Id. (citing Bell v. United
Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989)).
Finally, the district court has significant discretion to
adjust upward or downward the lodestar figure, if the
petitioner has achieved “exceptional success” or seeks
fees that are exaggerated in relation to the results
obtained, id., or
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