2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-16-2012

Jeffrey Heffernan v. City of Paterson

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2843

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Recommended Citation

"Jeffrey Heffernan v. City of Paterson" (2012). 2012 Decisions. Paper 723.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2843

_____________

JEFFREY J. HEFFERNAN,

 Appellant

v.

CITY OF PATERSON; MAYOR JOSE TORRES; POLICE CHIEF JAMES 

WITTIG; POLICE DIRECTOR MICHAEL WALKER

_____________

 

On Appeal from the United States District Court

for the District of New Jersey 

District Court No. 2-06-cv-03882

District Judge: The Honorable Dennis M. Cavanaugh

Argued June 28, 2012

Before: SMITH and FISHER, Circuit Judges

and RAKOFF, Senior District Judge*

(Filed: July 16, 2012)

 

Alexandra M. Antoniou

Mark B. Frost (Argued)

Ryan M. Lockman

Emily K. Murbarger

Mark B. Frost & Associates

7 North Christopher Columbus Boulevard

 

*

The Honorable Jed S. Rakoff, Senior District Judge for the United States District 

Court for the Southern District of New York, sitting by designation.
2

Pier 5 at Penn‟s Landing, 2nd Floor

Philadelphia, PA

Gregg L. Zeff

Suite 305

100 Century Parkway

Mount Laurel, NJ

Counsel for Appellant

William T. Connell

Albert C. Lisbona

Dwyer, Connell & Lisbona

100 Passaic Avenue

Third Floor

Fairfield, NJ

Michele L. DeLuca

Gary Potters

Potters & Della Peitra

100 Passaic Avenue

Fairfield, NJ

Mitzy R. Galis-Menendez

Chasan, Leyner & Lamparello

300 Harmon Meadow Boulevard

6

th Floor

Secaucus, NJ

Joseph Michael Morris, III

Thomas P. Scrivo

McElroy, Deutsch, Mulvaney & Carpenter

100 Mulberry Street

Three Gateway Center

Newark, NJ

Victor A. Afanador (Argued)

Lite, De Palma, Greenberg

Two Gateway Center

12th Floor

Newark, NJ
3

Counsel for Appellees 

_____________________

 OPINION

_____________________ 

SMITH, Circuit Judge.

Plaintiff Jeffrey Heffernan appeals from summary judgment entered against 

him in his First Amendment civil rights case. We will reverse.

Heffernan is a police officer working for the City of Paterson, New Jersey. 

During the Paterson mayoral election of 2006, Heffernan was asked by his mother 

to obtain a yard sign for Lawrence Spagnola, a long-time Heffernan family friend 

and Defendant Mayor Jose Torres‟ principal opponent. Heffernan was off-duty at 

the time. Heffernan met with Councilman Aslon Goow, Spagnola‟s campaign 

manager, and obtained a sign. When Defendant Police Chief James Wittig learned 

of this, Heffernan was abruptly transferred out of his position in the Police Chief‟s 

office, stripped of his title of detective, and reassigned to a series of allegedly 

punitive positions.1 Defendant Wittig admitted that this action was in direct 

response to Heffernan‟s alleged political involvement. Defendants Wittig, Torres, 

and other witnesses concede that off-duty police officers in Paterson are free to 

 

1

Plaintiff also alleges that as a result of his actions, his weapons – both duty and 

personal – were taken from him, and that he was improperly denied a promotion to 

sergeant.
4

engage in political activity. But Wittig claims that an unwritten policy against 

political involvement existed for officers working in the Chief‟s office.

This case comes to us after a complicated and highly unusual history in the 

District Court. Heffernan filed this case in the District of New Jersey, seeking 

compensatory and punitive damages for civil rights violations under 42 U.S.C. 

§ 1983. The parties eventually filed cross-motions for summary judgment.2 These 

were denied by District Judge Peter G. Sheridan, and the case proceeded to trial. 

Despite First Amendment Free Speech arguments being raised repeatedly in pretrial filings, the case went to trial solely on First Amendment Free Association 

grounds. The jury was charged solely on Free Association and returned a verdict 

for Heffernan of $105,000 in compensatory and punitive damages.

Up until that point, this case was a relatively straightforward civil rights 

action. But several months after the jury rendered a verdict in favor of Heffernan, 

Judge Sheridan retroactively recused himself due to what he perceived as a conflict

of interest. The case was set for retrial and assigned to District Judge Dennis M. 

Cavanaugh. The parties agreed that Judge Cavanaugh should revisit their pretrial 

motions, including the cross-motions for summary judgment. But each party 

qualified this agreement. Defendants asked for oral argument on the motions. And 

 

2 Heffernan‟s motion was labeled as a “Motion in Limine,” but we believe it is 

more properly viewed as a Motion for Partial Summary Judgment. The substance 

of the motion is the same regardless.
5

Plaintiff asked for the opportunity to file an opposition to Defendants‟ motion and 

to supplement the record with evidence obtained in the jury trial. The parties had 

not been permitted to file oppositions in the original briefing on the motions.

Though Judge Cavanaugh initially indicated that he would not revisit 

dispositive motions, he eventually agreed to do so. He did deny the request for 

additional briefing. Judge Cavanaugh later granted Defendants‟ motion and 

entered judgment in their favor. He concluded that because Heffernan had 

repeatedly indicated that he was retrieving the sign for his mother and that he was 

not campaigning for Spagnola, Heffernan was not engaging in speech and was not 

entitled to the protections of the Free Speech Clause of the First Amendment. 

Judge Cavanaugh‟s opinion made no mention of Heffernan‟s Free Association 

claim, despite Heffernan having received a jury verdict in his favor on that claim.

We first consider an underlying procedural matter. Heffernan contends that 

the District Court erred in denying him permission to file an opposition to 

Defendants‟ summary judgment motion. Our standard of review for such a 

procedural matter is abuse of discretion. See, e.g., Burtch v. Milberg Factors, Inc., 

662 F.3d 212, 220 (3d Cir. 2011) (abuse-of-discretion review for denial of leave to 

amend); In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d Cir. 2010)

(abuse-of-discretion review for denial of leave to intervene); Pippin v. Burlington 

Res. Oil & Gas Co., 440 F.3d 1186, 1191-92 (10th Cir. 2006) (“Whether a non-
6

moving party has had an opportunity to respond to a moving party‟s reply brief at 

the summary judgment stage is a „supervision of litigation‟ question that we review 

for abuse of discretion.”). We conclude that the District Court abused its discretion 

by barring the Plaintiff from filing an opposition here.

It is extremely unusual in our experience for a District Court to deny 

permission to file opposition briefs, particularly on a dispositive motion. It is 

difficult to see how a contested summary judgment motion could ever be decided 

without opposition briefing, unless the parties agreed to the facts. Issues of fact are 

quite often key disputes on summary judgment, with the movant asserting that 

facts supporting its motion cannot be genuinely disputed, and the non-movant 

responding that certain facts can indeed be genuinely disputed. See Fed. R. Civ. P.

56(c); D.N.J. L. Civ. R. 56.1(a). The parties will often contest materiality and 

supporting evidence in a similar manner. See Fed. R. Civ. P. 56(c)(2) (permitting 

challenges to supporting evidence). The local rules for the District of New Jersey 

contemplate that the parties will file both an opposition and a reply to any 

summary judgment motion. See D.N.J. L. Civ. R. 56.1(a). The District Court gave 

no explanation for its departure from the prescribed practice.

The District Court may have thought that barring additional briefing was 

justified by Judge Sheridan‟s refusal to permit oppositions and replies when the 

motions were initially filed. That conclusion assumes that Judge Sheridan‟s 
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decision was itself justified. But even if it were, Plaintiff specifically requested 

additional briefing as a condition of his consent to have the District Court reexamine the summary judgment motion.

Plaintiff had good reason to ask for additional briefing, as the jury trial 

produced numerous additional facts, all of which should have been considered in 

re-examining the motion for summary judgment. Defendants contend that the 

record of the jury trial should not be considered on summary judgment, asserting 

that the effect of Judge Sheridan‟s recusal is to turn back the clock to the summary 

judgment stage and pretend the jury trial never happened. Their source for this 

dubious proposition is unclear. They cite no federal precedent supporting it. Our 

cases emphasize the importance of notice and opportunity to respond, and a party 

has not had a full opportunity to respond if it is unreasonably prevented from 

offering all relevant, reliable evidence. See, e.g., Acumed LLC v. Advanced 

Surgical Servs., Inc., 561 F.3d 199, 223 (3d Cir. 2009) (requiring a party be given 

the “opportunity to support its position fully” before summary judgment is 

entered); Davis Elliott Int’l, Inc. v. Pan Am. Container Corp., 705 F.2d 705, 707-

08 (3d Cir. 1983) (requiring a party “be given reasonable opportunity to present all 

material made pertinent to such a motion by Rule 56” (quoting Bryson v. Brand 

Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980))). Evidence obtained in a jury 
8

trial – even one involving a later recusal – is at least as reliable as other pieces of 

evidence, such as affidavits, that are routinely considered on summary judgment.

In Jackson v. State of Alabama State Tenure Commission, 405 F.3d 1276 

(11th Cir. 2005), a public-employee free speech case, the Eleventh Circuit 

considered a fact pattern similar to the one here. Summary judgment was initially 

granted, but then reversed by the Eleventh Circuit, with the case remanded and 

tried before a jury. See id. at 1280. The jury verdict was then vacated because a 

juror had lied about her criminal history. Before the second trial, the trial judge 

recused himself. See id. The new trial judge revisited and granted the summary 

judgment motion. The Eleventh Circuit affirmed. It specifically held that the 

district court was justified in granting a summary judgment motion that the 

Eleventh Circuit itself had previously denied because the district judge “had before 

him the transcript of the first trial[.]” Id. at 1285. Detailing the evidence that 

supported summary judgment, the Eleventh Circuit explained that “the law of the 

case did not preclude entry of summary judgment . . . on the record as it stood at 

the end of the first trial.” Id.

Given that the District Court‟s conclusion that Heffernan did not speak was 

based on pre-trial discovery alone, trial testimony that qualifies or undermines that 

evidence is highly relevant, and should not have been set aside by the District

Court. On remand, the District Court is instructed to permit the parties to re-file 
9

their summary judgment motions with updated statements of undisputed material 

fact and to allow full opposition and reply briefing.

Turning to the substance of the District Court‟s opinion, we review a District 

Court‟s grant of summary judgment de novo. See Beers-Capitol v. Whetzel, 256 

F.3d 120, 130 n.6 (3d Cir. 2001). Summary judgment is appropriately granted “if 

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On 

summary judgment, we must view the facts in the light most favorable to the nonmovant (Plaintiff Heffernan) and draw all reasonable inferences in his favor. See 

Beers-Capitol, 256 F.3d at 130 n.6; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 

974 F.2d 1358, 1363 (3d Cir. 1992). We conclude that the able District Judge 

erred by failing to address Heffernan‟s Free Association claim.

Heffernan‟s Free Association claim clearly appeared in his “Motion in 

Limine” and his Trial Brief. Judge Sheridan concluded that the Free Association 

claim was fairly presented and that Defendants had an opportunity to obtain 

discovery on it. The Free Association claim was tried and Heffernan obtained a 

jury verdict in his favor, specifically on Free Association. Given these facts, it was 

reversible error for the District Court to fail to address Heffernan‟s Free 

Association claim before entering judgment in favor of the Defendants.
10

Defendants assert that Heffernan did not adequately plead his Free 

Association claim and that – at a minimum – they should have been entitled to 

additional discovery before proceeding to trial on the Free Association claim. We 

leave these objections for consideration by the District Court. We hold solely that 

it was error for the District Court to enter judgment in favor of Defendants after 

discussing only Heffernan‟s Free Speech claim, considering that Heffernan had 

previously obtained a jury verdict on his Free Association claim. On remand, the 

District Court should consider the extent to which Heffernan prosecuted his Free 

Association claim and whether Defendants timely objected to trial of the Free 

Association claim. The District Court should also consider the appropriate 

remedy, whether it be dismissal of the Free Association claim, reopening discovery 

solely on Free Association, or proceeding to trial.

In light of our conclusion that the District Court‟s entry of judgment resulted 

from both procedural and substantive errors, we will reverse. We do not reach the 

question of the viability of Heffernan‟s Free Speech claim. The District Court 

should re-examine that claim in light of the full record and the parties‟ 

supplemental briefing.