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w . v i l l a no v a . e du/thir dc ir c uit_2013/698NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______ No. 12

- 2368

______ EDWARD CHRYSTAL

Appellant

v. NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY,

DIVISION OF STA TE POLICE

______ On Appeal from the United States District Court for the District of New Jersey ( D.C. Civil No. 3

- 11

- cv - 02455 ) Dis trict Judge: Honorable Joel A. Pisano

______ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 11, 2013 Before: SCIRI CA , HARDIMAN , and VAN ANTWERPEN, Circuit Judges (Filed : June 12, 2013 )

______ OPINION OF THE COURT

______ VAN ANTWERPEN, Circuit Judge

. Edward Chrystal (―Appellant‖) appeals from an order of the District Court for the District of New Jersey entering summa ry judgment in favor of the New Jersey Department of Law and Public Safety (―Appellee‖). Appellant brought suit in federal2

court , claiming that he was improperly denied promotions in the New Jersey State Police. He had previously raised similar claims in New Jersey state court

. For the reasons that follow, we agree that this appeal is barred by Appellant‘s prior action in state court and, in particular, by New Jersey‘s entire controversy doctrine . We will therefore affirm the District Court. I. Backgro und Appellant has been employed by the New Jersey State Police (―NJSP‖) for more than two decades. He also serves as a Lieutenant Colonel in the New Jersey National Guard. After the Hurricane Katrina disaster, Appellant was ordered to active duty by the United States Army between September 28, 2005 and November 11, 2005 and was deployed in New Orleans, Louisiana. Appellant alleges that before his 2005 deployment, he was told by his NJSP supervisor that he would be promoted from Sergeant to Sergeant Firs t Class (―SFC‖). But upon his return from his 2005 deployment, the NJSP had promoted two other Sergeants to SFC, both of whom Appellant claims were less quali fied

. In August 2006, Appellant requested a thirty day military leave from the
NJSP , which purpo rtedly caused another less

- qualified Sergeant to be promoted to SFC

. These events formed the basis of a Complaint which Appellant filed in New Jersey State Superior Court (―the State Action‖) in January 2007. The Complaint alleged violations of the Unifo rm Service Employmen t and R eemployment Rights Act, 38 U.S.C. § 4301, et
seq. ( ― USERRA ‖ ) , and the New Jersey Law Against Discrimination, N.J.S.A. 10:5

- 12(a) ( ― NJLAD ‖ ).3

While the State Action was pending, Appellant was again called for active duty , this tim e in Iraq , from September 2008 to June 2009. Appellant claims more promotions were made during that time , this time of SFCs to Lieutenants. When Appellant learned of these new promotions in August 2009, his counsel brought it to the attention of the

cour t in the State Action. In response, on September 15, 2009, Appellee , the defendant in the State Action, filed a motion in limine to prohibit introduction of any evidence of the
SFC

- to

- l ieutenant promotions at trial. Appellee served this motion to Appell ant by overnight mail, pursuant to New Jersey Rule of Court 1:5

- 2. The proof of delivery shows that the motion arrived at Appellant‘s counsel‘s office the following day, on September 16, 2005. Later, on November 17, 2009, Appellee faxed a copy of its pro posed order with respect to the motion in limine to Appellant‘s counsel, which Appellee had inadvertently neglected to include in the original motion. Appellant‘s counsel alleges that this fax, and not the original service, was his first notice of the mot ion. Nonetheless, the motion was granted, unopposed, on December 1, 2009. Appellant‘s first response to that motion was on January 5, 2010, when he filed a motion requesting that the court vacate the resulting order. That motion was denied on January 22 , 2010. Trial in the State Action was held from January 28, 2010 through February 18, 2010. On April 22, 2010, a final judgment was issued in Appellant‘s favor, and awarded him monetary damages for Appellee ‘s violations of USERRA and NJLAD. The Complai nt in this action (―the Federal Action‖) was filed on April 28, 2011. In the Federal Action, Appellan t sought relief for the SFC

- to

- l ieutenant promotions, the4

evidence of which was the subject of the motion in limine in the State Action. In response to t he Complaint, Appellee filed a motion for summary judgment, arguing that the Federal Action is barred by the entire controversy doctrine and issue preclusion. That motion was granted on April 23, 2012. The District Court found that Appellant‘s claim
in t he Federal Action is barred by New Jersey‘s entire controversy doctrine; and, pursuant
to the Rooker

- Feldman d octrine, the District Court also refused to address the merits of the state court‘s orders with respect to the motion in limine . Appellant then t imely appealed. 1 II. Analysis
W e exercise plenary review over the District Court ‘s entry of summary judgment

. Kautz v. Met

- Pro Corp. , 412 F.3d 463, 466 (3d Cir. 2005) . Summary judgment is appropriate only where ―there is no genuine dispute as to any mat erial fact and the [ moving party ] is entitled to judgment as a matter of law.‖ F ED
. R. C IV
. P. 56(a). In making our determination, we draw all reasonable factual inferences in favor of Appellant. See Pastore v. Bell Tel. Co. of Pa. , 24 F.3d 508, 511

– 12 (3d Cir. 1994). The sole issue before us is whether New Jersey‘s entire controversy doctrine precludes Appellant from bringing his claim in the Federal Action. 2 If it does, the District Court‘s entry of summary judgment on behalf of Appellee was proper.

1 The District Court had jurisdiction pursuant to 28 U.S.C. § § 1331 and 1367 . We have jurisdiction pursuant to 28 U.S.C. § 1291.

2 The District Court also concluded that ―[t]o the extent that [Appellant] contests the state court‘s ruling granting [NJSP‘s] motion in limine, or contests the court‘s ruling denying his subsequent motion to vacate,‖ his attack was barred by the Rooker

- Feldman5

This case is about the impact of state judgments in federal courts. Pursuant to the Full Faith and Credit Clause 3 of the Federal Constitution , and its implementing statute, 4 ―[i]t is now settled that a federal court must give to a state

- court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.‖ Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 80

– 81 (1984)

. S ee also Kremer v. Chem. Constr. Corp. , 456 U.S. 461, 466 (19 82). Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal cou rts to give preclusive effect to state

- doctrine, which generally states that lower federal courts are without power to review s tate court decisions. See Parkview Assoc s . P’ship v. City of Lebanon , 225 F.3d 321, 324

– 25 (3d Cir. 2000) (citing Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman , 460 U.S. 462 (1983)) (discussing Rooker

- Feldman doctr ine). As noted above, that the state court granted the motion in limine precluded Appellant from introducing any evidence regarding the SFC

- to

- lieutenant promotions in the State Action. Appellant does not challenge this conclusion, and ―has no intention to directly or indirectly contest[] the state court‘s order in limine.‖ (Reply Brief on Behalf of Appellant at 8

– 9; see also Brief on Behalf of Appellant at 19

– 20.) Accordingly, that issue is not before us. But even if it were, we would be without power to review the state court‘s order with regard to the motion in limine. See Lance v. Dennis , 546 U.S. 459, 460 (2006) (per curiam) (―The Rooker

- Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by  ̳state

- co urt losers‘ challenging  ̳state

- court judgments rendered before the district court proceedings commenced.‘‖ (quoting Exxon Mobile Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284 (2005))).

3 ―Full Faith and Credit shall be given in each State to the pu blic Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.‖ U.S. C ONST ., art. IV, § 1.

4 The Federal F ull Faith and Credit Statute provides, in pertinent part, that ―[s]uch acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.‖ 28 U.S.C. § 1738.6

court judgments whenever the courts of the State from which the judgme nts emerged would do so . . . . Allen v. McCurry , 449 U.S. 90, 96 (1980). Accord R ESTATEMENT (S ECOND ) OF J UDGMENTS § 86 (1982). In New Jersey, t he entire controversy doctrine ―is an extremely robust claim preclusion device that requires adversaries to join all possible claims stemming from an event or series of events in one suit.‖ Paramount Aviation Corp. v. Agusta , 178 F.3d 132, 135 (3d Cir. 19 99). See also N.J. C T
. R. 4:30A; In re Mullarkey , 536 F.3d 215, 229 (3d Cir. 2008). The doctrine prevents a party from withholding part of a controversy to litigate later, even if the withheld claim constitutes a separate and independent cause of action. See Mullarkey , 536 F.3d at 229. As the Supreme Court of New Jersey has explained: the entire controversy doctrine seeks to assure that all aspects of a legal dispute occur in a single lawsuit. The goals of the doctrine are to promote judicial efficienc y, assure fairness to all parties with a material interest in an action, and encourage the conclusive determination of a legal controversy. Olds v. Donnelly , 696 A.2d 633, 637 (N.J. 1997). See also Paramount Aviation Corp. , 178 F.3d at 137 (citing DiTrol io v. Antiles , 662 A.2d 494, 502 (N.J. 1995)). New Jersey‘s entire controversy doctrine has ―evolved over time through the common law.‖ Mystic Isle Dev. Corp. v. Perskie & Nehmad , 662 A.2d 523, 529 (N.J. 1995). T he doctrine ―requires a court to adjudica te both equitable and legal issues arising from one underlying transaction.‖ Id. It extends to ―all affirmative claims that a party might have against another party, including counterclaims and cross

- claims,‖ and ―parties with a material interest in the controversy.‖ Id. It also applies to ―constituent claims that7

arise during the pendency of the first action that were known to the litigant.‖ Id. At bottom, it is the ―commonality of facts, rather than the commonality of issues, parties or
remedies tha t defines the scope of the controversy and implicates‖ the doctrine.
DiTrolio , 662 A.2d at 504. But the doctrine is an equitable one, and ―[t]he  ̳polestar of the application of the rule is judicial fairness.‘‖ Id. (quoting Reno Auto Sales, Inc. v. Prosp ect Park Sav. a nd Loan Ass’n , 581 A.2d 109, 113 (N.J. App. Div. 1990)) (internal quotation marks omitted). As a result, the doctrine ―does not apply to bar component claims that are either unknown, unarisen or unaccrued at the time of the original action. ‖ K

- Land Corp. No. 28 v. Landis Sewerage Auth. , 800 A.2d 861, 869 (N.J. 2002) (quoting Hillsborough Twp. Bd. of Educ. v . Faridy Thorne Fray ta, P.C. , 728 A.2d 857, 860 (N.J. App. Div. 1999)) . And ―[i]n considering fairness to the party whose claim is soug ht to be barred, a court must consider whether the claimant had a fair and reasonable opportunity to have fully litigated that claim in the original action.‖ Id. at 870 (quoting Hillsborough Twp. Bd. of Educ. , 728 A.2d at 861) (internal quotation marks om itted). Appellant argues the doctrine does not bar him here because his claim had not ―accrued‖ at the time of the State A ction. H e also argues that it would be unfair to bar his claim because of a lack of commonality with regard to the facts underlying the claims in the Stat e Action and the Federal Action. He also asserts he did not have a full and fair opportunity to litigate his SFC

- to

- lieutenant promotion claim in the State Action. These arguments fail.8

Appellant argues that , because he could only b e promoted to lieutenant if he held the rank of SFC, his claim underlying the Federal Action did not ―accrue‖ until August
2010

— eight months after the jury verdict w as entered in the State Action

— when his seniority date was corrected to reflect the fact th at he had been retroactively promoted to
SFC . He admits that ―it would have made sense to try the lieutenant‘s promotion claim before the same Judge and same jury.‖ B ut Appellant asserts that he was ineligible for promotion to lieutenant until he succeed ed on the merits of his SFC promotion claim, and his seniority date was corrected

. As a result, he argues that his SFC

- to

- lieutenant promotion claim had not accrued at the time of the State Action. 5 In New Jersey, generally, ―a cause of action accrues w hen any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs.‖ Beauchamp v. Amedio , 751 A.2d 1047, 1050 (N.J. 2000). The only exception is ―where the victim either is unaware that he has been injur ed or, although aware of an injury, does not know that a third party is responsible.‖ Id. Here, Appellant was injured the moment NJSP allegedly promoted unqualified SFCs to lieutenant

. And Appellant knew about that injury in August 2009, before trial ha d begun in the State Action. As a

5 Appellant also cites Morgan v. Covington Township , 648 F.3d 172 (3d Cir. 2011) to support his argument that any claim based on acts postdating the filing of a complaint are not barred under the entire controversy doctrine, and therefore can be asserted in later litigation. True, that is the rule in this Circuit with regard to claims predicated on events that postdate the filing of a federal complain t in a United States District Court. See id. at 178. But that is not the rule in New Jersey. See Mystic Isle Dev. Corp. , 662 A.2d at 529 (entire controversy doctrine ―applies to constituent claims that arise during the pendency of the first action that were known to the litigant‖). It would be improper for us to impose our decisions regarding federal concepts of res judicata upon a state

- based preclusion doctrine. See Allen , 449 U.S. at 96.9

result, the entire controversy doctrine bars his claim because it had ―accrued‖ and was known to him during the pendency of the State Action

. See Circle Chevrolet Co. v. Giordano, Halleran & Ciesla , 662 A.2d 509, 513 (N. J. 1995) , abrogated on other grounds by Olds , 696 A.2d at 633 (―The entire controversy doctrine applies to constituent claims that arise during the pendency of the first action that were known to the litigant.‖). Under New Jersey law, h is claim should hav e been brought in the State A ction, even if his ―right‖ to retroactive promotion from SFC to lieutenant was dependent on the jury finding he had a ―right‖ to retroactive promotion to SFC and the subsequent correction to his seniority date

. Cf. Bendar v. R osen , 588 A.2d 1264, 1273 (N.J. App. Div. 1991) (entire controversy doctrine applied to bar a subsequent claim for contribution, requiring

a cross - claim in the underlying tort action, although ―technically a right of contribution
does not arise until a tor tfeasor has paid more than his pro rata share‖). Appellant himself admits that litigating the two claims together would have ―made sense.‖ Appellant further argues that there is not sufficient commonality of facts for the entire controversy doctrine to a pply. This is simply not the case here, as both claims ―arise[] from a core set of related factual circumstances,‖ DiTrolio , 662 A.2d at 504

— namely, that NJSP discriminated against Appellant because of his active service in the military. Furthermore, Ap pellant had a fair and reasonable opportunity to raise his SFC

to

- lieutenant promotion claim in the State A ction. Upon discovery of the SFC

- to

lieutenant promotions in August 2009, Appellant had ample time to amend his original10

complaint. And e ven assumin g original service of the motion in limine was improper, 6
and the November 17, 2009 fax was Appellant‘s first notice of Appellee‘s motion , Appellant ‘s only response came over a month after the motion had been granted , 7 via his request that the state court vacate its order. Accordingly, Appellant ―had ample opportunity to have fully litigated the claim in the first action; he simply chose not to.‖ Id. at 506. Accordingly, Appellant has identified no basis in law or fact as to why the entire controversy d octrine should not act to bar his claim here in the Federal Action. The District Court‘s entry of summary judgment in Appellee‘s favor was appropriate. III. Conclusion For the foregoing reasons, the Order of the District Court granting NJSP‘s motion
for summary judgment is affirmed.

6 Appellant explains that his failure to respond to the NJSP‘s motion in limine was caused, at least in part, by failure of the delivery service to realize that counsel and all who worked at counsel‘s office entered the building through the back door. Because the delivery service instead left the motion at the front door, counsel alleges that he never received the motion. Even if we were to read Appellant‘s briefs liberally so as to raise an adequacy of service argument, service here was proper. See N.J. Ct. R. 1:5

- 2 (―Service upon an attorney . . . shall be made b y mailing a copy to the attorney at his or her office by ordinary mail . . . .‖); cf. O’Connor v. Altus , 335 A.2d 545, 556 (N.J. 1975) (―An elementary and fundamental requirement of due process in any proceeding . . . is notice reasonable calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.‖).

7 All in all, a month

- and

- a - half after Appellant admits having received notice of the motion.