87 F.3d 1491 (3rd Cir. 1996), 95-5439, Coleman v. Kaye

Docket Nº:Barbara COLEMAN, Appellant, Nos. 95-5439/5742,
Citation:87 F.3d 1491
Party Name:Fed.R.Serv.3d 1379
Case Date:June 26, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1491

87 F.3d 1491 (3rd Cir. 1996)

Fed.R.Serv.3d 1379

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 D.C.,

John Kaye, Appellant, Nos. 95-5469/5708.

Nos. 95-5439, 95-5469, 95-5708, 95-5742.

United States Court of Appeals, Third Circuit

June 26, 1996

Argued April 29, 1996.

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Linda B. Kenney (argued), Gregory S. Schaer, Law Offices of Linda B. Kenney, Red Bank, New Jersey, for Appellant/Cross Appellee Barbara Coleman.

Arlin M. Adams (argued), Nancy Winkelman, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for Appellees/Cross Appellants John Kaye, County Prosecutor's Office of the County of Monmouth; John Does, 1-100; Jane Does, 1-100.

Malcolm V. Carton (argued), Carton & Faccone, Avon, New Jersey, for Appellee County of Monmouth.

Page 1495

Before: COWEN and ROTH, Circuit Judges and CINDRICH, District Judge. [*]

OPINION OF THE COURT

COWEN, Circuit Judge.

Plaintiff-appellant Barbara A. Coleman 1 appeals an order of the district court granting defendant-appellee Monmouth County's posttrial motion to vacate a jury verdict of $15,000 in compensatory damages and $350,000 in punitive damages based upon three findings of intentional sex discrimination. The principal questions we must decide are whether county prosecutors in New Jersey act as state or county officials when they make personnel 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 FED.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.

The jury also found Prosecutor Kaye to be liable in his individual capacity for $10,000 in compensatory damages and $50,000 in punitive damages. Kaye appeals the district court's denial of his Rule 50(b) motion for judgment 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 deciding whom to hire, fire, promote or demote at the Monmouth County Office. Although Kaye received input from subordinates as to the qualifications of persons considered 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 promoted to either position. Similarly, Coleman's applications 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 capacity as Monmouth County Prosecutor, the County Prosecutor'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.J.STAT.ANN. § 10:5-1 et seq. The summons and complaint were served upon Kaye, who also accepted service on behalf of the Monmouth County Prosecutor's Office.

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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 subordinates who made recommendations to him intentionally 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 damages award, the County of Monmouth filed a motion to intervene pursuant to FED.R.CIV.P. 24, which was granted by the district court. Monmouth County also filed a motion pursuant to FED.R.CIV.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 contended 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. 2 The County argued that since it had no 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 conduct nonetheless 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 FED.R.CIV.P. 4(j)(2) or N.J.CT.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., 132 N.J. 587, 626 A.2d 445 (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." Coleman v. Kaye, No. 91-1140, slip op. at 7 (D.N.J. May 4, 1995).

Prosecutor Kaye responded to the October 17, 1994 jury verdict against him by filing a FED.R.CIV.P. 50(b) motion for judgment as a matter of law, arguing that 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

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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. Anthuis 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...

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