Major Tours, Inc. v. Colorel

Decision Date11 October 2011
Docket NumberCivil No. 05–3091 (JBS/JS).
Citation799 F.Supp.2d 376
PartiesMAJOR TOURS, INC., et al., Plaintiffs, v. Michael COLOREL, et al., Defendants.
CourtU.S. District Court — District of New Jersey


Terry Davon Johnson, Esq., Blank Rome LLP, Princeton, NJ, and Ezra D. Rosenberg, Esq., Evan Wainhouse Davis, Esq., Irene Ayzenberg–Lyman, Esq., Dechert LLP, Philadelphia, PA, and Yvette Claudia Sterling, Esq., Barbara E. Ransom, Esq., Sterling Law Firm, L.L.C., Burlington City, NJ, and Michael Churchill, Esq., Public Interest Law Center of Philadelphia, Philadelphia, PA, for Plaintiffs.

Nonee Lee Wagner, Deputy Attorney General, Wayne J. Martorelli, Deputy Attorney General, Office of the NJ Attorney General, Trenton, NJ, and Holly Rebecca Rogers, Esq., Dilworth Paxson LLP, Philadelphia, PA, and John J. Higson, Esq., Dilworth Paxson, LLP, Philadelphia, PA, for Defendants Michael Colorel, New Jersey Department of Transportation, Sharon Harrington, Diane Legriede, Vincent Shulze, New Jersey Motor Vehicle Commission, Kris Kolluri, and John F. Lettiere.

William J. Pollinger, Esq., William J. Pollinger, P.A., Hackensack, NJ, for Defendants Jimmy's Lakeside Garage and James Restuccio.


SIMANDLE, District Judge:

                ¦Table of Contents¦
                I.   Introduction                                                       383
                II.  Background                                                         384
                III. Standard of Review                                                 386
                IV.  Statute of Limitations                                             386
     A.   Relation back                                                 386
                     B.   Continuing violation doctrine                                 387
                     C.   Discovery rule                                                389
                     D.   Consequences of these findings                                390
                V.   Equal Protection Claims Against State Defendants                   391
     A.   Evidence of knowledge of owners' race                         392
                     B.   Evidence of differential treatment based on race              393
                     C.   False violations and forced impound                           396
                     D.   Scope of potential liability                                  398
VI.  Detention of Bus 203                                               399
     A.   Conversion                                                    400
                     B.   § 1981                                                        402
                     C.   Conspiracy                                                    403
                VII. NJCRA Claims                                                       405
     A.   Due process                                                   405
                     B.   Criminal prohibitions                                         406
                     C.   Equal Protection                                              406
                VIII. Cross–claims of Garage Defendants                                 406
     A.   Cross-claim I                                                 406
                     B.   Cross-claim II                                                408
                IX.  Experts                                                            408
     A.   McCombs                                                       408
                     B.   Levinson                                                      410
                     C.   Tinari                                                        411
                X.   Motion to Seal                                                     412
                XI.  Conclusion                                                         413


This case involves allegations of racial discrimination in New Jersey's system of commercial bus safety inspections of tour buses in Atlantic City, New Jersey, as well as allegations regarding the improper impounding of a particular bus. Plaintiffs are six African American owned bus companies and their owners who have operated such tour buses during the years 2000 through 2007. They claim there is racial disparity in the selection of buses for inspection, decisions to issue citations for bus safety violations, and decisions to impound buses ordered to be taken out of service when they fail inspection at the Atlantic City site. This Court previously dismissed some of Plaintiffs' claims, and consequently the action is now proceeding against two state officials involved in the inspection system, Vincent Schulze and Michael Calorel (State Defendants), and a repair shop and its owner who Plaintiffs allege are involved in the discrimination, Jimmy's Lakeside Garage and James Restuccio (“Garage Defendants) and who Plaintiffs allege impounded one of Plaintiffs' buses for two years. A more complete description of this lengthy and contentious litigation appears in Major Tours, Inc. v. Colorel, 720 F.Supp.2d 587 (D.N.J.2010).1

The matter is before the Court on several motions. The State Defendants move for summary judgment as to Plaintiffs' claims against them [Docket Item 365], and move for summary judgment as to the Garage Defendants' cross-claims. [Docket Item 357.] The Garage Defendants move for summary judgment as to Plaintiffs' claims against them, [Docket Item 358], and cross-move for summary judgment as to their cross-claims against the State Defendants. [Docket Item 386.] Additionally, there are also three motions to strike expert reports: Plaintiffs' motion to preclude the testimony of the State Defendants' racial profiling expert, [Docket Item 354], and the Garage Defendants' and State Defendants' motions to strike the testimony of Plaintiffs' damages experts. [Docket Item 355 & 356.] Finally, Plaintiffs move to seal certain evidence attached to their opposition to the State Defendants' motion for summary judgment [Docket Item 394].


As set forth in this Court's Opinion of June 22, 2010, this case principally involves the enforcement of New Jersey's Bus Safety Compliance Act, N.J. Stat. Ann. § 48:4–2.1, legislation that created a system of inspections to promote vehicle safety. Major Tours, Inc. v. Colorel, 720 F.Supp.2d 587, 593 (D.N.J.2010). Under the Act, officers of New Jersey's Commercial Bus Inspection Unit (CBIU) can direct any bus operated in New Jersey to immediately drive to a designated facility for inspection. N.J. Admin. Code § 16:53A–6.1. Buses discovered to have a mechanical condition that would likely cause an accident or a breakdown, a so-called “out-of-service violation,” may be required to unload passengers, to be taken out of service, and not permitted to operate in New Jersey until the conditions have been repaired. The statute specifically describes the nature and permissible duration of the impound:

The vehicle may be held or impounded until appropriate repairs are made on-site or until towed by the owner or operator to an appropriate repair facility, maintenance garage or otherwise, so that repairs of all bus safety out-of-service violations can be made. The vehicle shall not be operated in this State until the defects are remediated and such remedial action is either certified or approved by the department.

N.J. Stat. Ann. § 48:4–2.1(h). Additionally, the bus company is subject to civil penalties for each violation. N.J. Stat. Ann. § 48:4–2.1(f).

The Bus Safety Compliance Act does not provide for how buses are to be selected for inspection. According to the State, its policy is that the buses are to be chosen for inspection based on sequential selection (e.g., every third bus), visible or otherwise obvious defects (e.g., bald tires), or past inspection data contained in a database of bus safety information. ( See, e.g., State Defs.' Docket Item 369 Ex. 11 (“RSIVL dated 8/20/04).) 2

Plaintiffs are six African American owned and operated bus companies and their individual owners: Charles Major and Major Tours, Inc., Victoria Daniels and M & M Tours, James Wright and JW Auto, Inc., Glen Ragin, Sr. doing business as Jamm Tours, Robert Allen, and Carl Revels doing business as CMT Express. They offer bus tours between Pennsylvania and Atlantic City, New Jersey. Plaintiffs allege that the State Defendants ignored the race-neutral inspection processes and improperly targeted their buses, and that Defendants selectively enforced the safety laws against them out of racial animus toward the owners of the bus companies. The discriminatory conduct allegedly includes more frequent inspections, heightened scrutiny, and unwarranted violations and impound orders, as alleged in the Fourth Amended Complaint.

Plaintiffs also allege that the State Defendants discriminated against them by requiring towing to a repair shop instead of allowing on-site repair. The inspectors allegedly required the buses to be towed to Jimmy's Lakeside Garage, which allegedly charged them above the prevailing market rates and subjected them to verbal abuse. Charles Major and Major Tours, Inc. also complain of a particular incident in which a bus owned by Major Tours and operated by M & M Tours, Bus 203, was improperly detained at Jimmy's for two years.

The initial complaint was filed by Charles Major and Major Tours, Inc., as well as Victoria Daniels and M & M Tours on June 15, 2005. After the first complaint was filed, the parties conducted nearly four contentious years of discovery. During this period, the initial Plaintiffs amended the complaint several times adding additional Plaintiffs, among other changes.

In its June 22, 2010 Opinion, this Court dismissed on sovereign immunity grounds Plaintiffs' claims against state entities, claims for damages against Schulze and Calorel in their official capacities, and state law claims for injunctive relief. Major Tours, 720 F.Supp.2d at 603. The Court found the factual allegations contained in the Third Amended Complaint to be insufficient to state several of the claims, including claims as to the supervisory officials previously named, claims based on federal procedural and substantive due...

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