Izzo v. Twp. of Raritan

• Decision Date: 28 October 2015
• Docket Number: Civil Action No. 15-1262 (MAS) (TJB)
• Court: U.S. District Court — District of New Jersey
• Parties: PHIL IZZO, Plaintiff, v. TOWNSHIP OF RARITAN, et al., Defendants.

PHIL IZZO, Plaintiff, v. TOWNSHIP OF RARITAN, et al., Defendants.

Civil Action No. 15-1262 (MAS) (TJB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

October 28, 2015

NOT FOR PUBLICATION

MEMORANDUM OPINION

SHIPP, District Judge

This matter comes before the Court on several motions. Defendants Township of Raritan, Allan Pietrafesa, Glenn Tabasco, and Benedict Donaruma, Jr. ("Township Defendants") move to dismiss Plaintiff Phil Izzo's ("Plaintiff) Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 8.) Plaintiff cross-moves to disqualify Richard P. Flaum, Esq. ("Township Attorney") and his law firm, DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer, & Flaum, P.C. ("DiFrancesco Bateman"), from representing Township Defendants in this action pursuant to New Jersey Rules of Professional Conduct ("RPC") 1.9 and 3.7. (ECF No. 15.) Additionally, Defendants Hunterdon County Prosecutor's Office and Detective Frank Crisologo ("Prosecutor Defendants") move to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6). (ECF No. 18.) The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons stated below, Township Defendants' motion to dismiss is denied; Plaintiff's cross-motion to disqualify Township Attorney and DiFrancesco Bateman is granted; and Prosecutor Defendants' motion to dismiss is granted.

I. Background

This action arises from the alleged wrongful termination and arrest of Plaintiff. As alleged in Plaintiff's Complaint, Plaintiff worked as a Building and Electrical Inspector for the Township of Raritan since September 2005. (Compl. ¶ 10, ECF No. 1.) In December 2010, Plaintiff was appointed as the First Sub-Code Official and Construction Official of the Township of Raritan. (Id. ¶ 12.) Marc Forniciari ("Forniciari"), a co-employee, was displeased that he was "passed over" for the position Plaintiff was appointed to and made complaints about Plaintiff. (Id. ¶¶ 13-15.) On March 15, 2013, Forniciari filed a lawsuit against the Township of Raritan and Plaintiff alleging he was a whistle-blower (the "Forniciari Lawsuit"). (Id. ¶ 16.)

Township Attorney represented the Township of Raritan and Plaintiff in the Forniciari Lawsuit. (Id. ¶ 17.) Plaintiff brought home background documents from Forniciari's personnel file to prepare a summary of relevant information to assist Township Attorney in the defense of the Forniciari Lawsuit. (Id. ¶¶ 17-18.) Plaintiff later became aware that Forniciari's personnel file was missing and reported the missing file to his supervisor. (Id. ¶¶ 19-20.) On August 1, 2013, Plaintiff was arrested by the Township of Raritan Police Department for "official misconduct" related to the missing personnel file. (Id. ¶¶ 22-23, 37.) Defendants informed Plaintiff that they believed he devised a plan with a third party to send the personnel file to the Township of Raritan with the hope that it would cause another person to be fired and create an opportunity for this third party to be hired. (Id. ¶¶ 24-28.) Plaintiff denied the accusations. (Id. ¶ 29.) On August 2, 2013, Plaintiff was suspended without pay by the Township of Raritan. (Id. ¶ 30.)

From September 2013 through November 2013, Plaintiff cooperated in the investigation conducted by the Hunterdon County Prosecutor's Office. (Id. ¶ 32.) On March 31. 2013¹, the Hunterdon County Prosecutor's Office dismissed all charges against Plaintiff. (Id. ¶ 39.) Plaintiff attempted to negotiate the reinstatement of his position with the Township of Raritan. (Id. ¶¶ 40-42.) On April 21, 2014, however, the Township of Raritan issued correspondence, authored by Township Attorney, amending its reasons for Plaintiff's suspension. (Id.) Plaintiff filed a Tort Claim Notice in June 2014. (Id. ¶ 43.) On July 9, 2014, the Township Council passed a resolution confirming its decision not to reappoint Plaintiff. (Id. ¶ 45.)

Through his Complaint, Plaintiff asserts the following claims against all Defendants: (1) breach of contract in violation of N.J.S.A. 40A:62-6(5); (2) breach of contract/wrongful discharge; (3) violation of the Civil Rights Act, 42 U.S.C. § 1983; (4) violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2; (5) false arrest/imprisonment; (6) malicious prosecution; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. Plaintiff seeks reinstatement, a declaratory judgment, compensatory damages, punitive damages, attorney's fees, and costs of suit.

II. Plaintiff's Cross-Motion to Disqualify Counsel

Plaintiff cross-moves to disqualify Township Attorney and his law firm, DiFrancesco Bateman, from representing Township Defendants in this action pursuant to RPC 1.9 and 3.7. (ECF No. 15.) As Plaintiff's cross-motion raises issues regarding the Rules of Professional conduct, the Court shall address it first.

A. Legal Standard

In the District of New Jersey, the conduct of the members of the bar are governed by "[t]he Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court." L. Civ. R. 103.1(a). Pursuant to Local Civil Rule 103.1, this Court looks to New Jersey's state courts' interpretations of the RPC as primary authority. Id.; see also Carreno v. City of Newark, 834 F. Supp. 2d 217, 224 (D.N.J. 2011). In New Jersey, "[d]isqualification of counsel is a harsh discretionary remedy which must be used sparingly." Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000); see also Rohm & Haas Co. v. Am. Cyanamid Co., 187 F. Supp. 2d 221, 226 (D.N.J. 2001) ("It is well settled that because motions to disqualify can have such drastic consequences, courts disfavor such motions and grant them only when absolutely necessary.") (internal quotation marks omitted). "A party seeking disqualification must meet a 'heavy burden' of proof before a court will disqualify an attorney or law firm." Rohm & Haas Co., 187 F. Supp. 2d at 226-27. "New Jersey courts engage in a 'painstaking analysis of the facts' when addressing motions for disqualification." Id. (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205 (1988)). A person's right to retain counsel of his or her choice, however, "is limited in that 'there is no right to demand to be represented by an attorney disqualified because of an ethical requirement.'" Dewey, 109 N.J. at 218 (quoting Reardon v. Marlayne, Inc., 83 N.J. 460, 477 (1980)). "Resolution of a motion to disqualify requires the court to balance the need to maintain the highest standards of the legal profession against a client's right to freely choose his counsel." Steel v. Gen. Motors Corp., 912 F, Supp. 724, 733 (D.N.J. 1995) (internal quotation marks omitted).

B. Analysis

Plaintiff moves to disqualify Township Attorney from representing Township Defendants in this action under RPC 1.9, which provides:

A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

N.J. Rules of Prof'l Conduct R. 1.9(a) (2015). "RPC 1.9(a) has three requirements that must be satisfied for an attorney to be disqualified: (1) the existence of a past attorney client relationship; (2) that the current representation involves the same or a matter substantially related to the previous representation; and (3) that the interests of the attorney's current client are materially adverse to the interests of the former client." H2O Plus, LLC v. Arch Pers. Care Prods., L.P., No. 10-3089, 2011 WL 1078584, at *2 (D.N.J. Mar. 21, 2011) (citing Host Marriott Corp. v. Fast Food Operators, Inc., 891 F. Supp. 1002, 1007 (D.N.J. 1995)). Here, only the second requirement is in dispute as Township Attorney previously represented Plaintiff in the Forniciari Lawsuit and Township Attorney now represents Township Defendants in this action against Plaintiff.

For purposes of the second requirement of RPC 1.9, the New Jersey Supreme Court held that matters are "substantially related" if either "(1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation." City of Atl. City v. Trupos, 201 N.J. 447, 467 (2010). "New Jersey 'strictly construes RPC 1.9,' and 'if there be any doubt as to the propriety of an attorney's representation of a client, such doubt must be resolved in favor of disqualification.'" Carreno, 834 F. Supp. 2d at 225 (quoting Twenty-First Century RailCorp. v. N.J. Transit Corp., 419 N.J. Super. 343, 358 (App. Div. 2011), rev'd on other grounds, 210 N.J. 264 (2012)); see also Herbert v. Haytaian, 292 N.J. Super. 426, 438-39 (App. Div. 1996).

Here, the Court finds that Plaintiff has met the second requirement by showing that the facts underlying Township Attorney's prior representation of Plaintiff are relevant and material to the current action. Township Attorney represented Plaintiff and the Township of Raritan in a lawsuit filed by Forniciari, a co-employee of Plaintiff. The Forniciari Lawsuit arose out of Forniciari's allegations that he was a whistle-blower under the Conscientious Employee Protection Act. (Compl. ¶ 16.) In the present action, Plaintiff alleges that he brought home background documents from Forniciari's personnel file to prepare a summary of relevant information to assist Township Attorney in the defense of the Forniciari Lawsuit. (Id. ¶¶ 17-18.) Plaintiff further alleges that he later became aware that Forniciari's personnel file was missing and reported it to...