Waste Conversion, Inc. v. Sims
| Decision Date | 15 November 1994 |
| Docket Number | Civ. A. No. 91-4312 (JEI). |
| Citation | 868 F. Supp. 643 |
| Parties | WASTE CONVERSION, INC., Stout Environmental, Inc., and Mark Alsentzer, Plaintiffs, v. Lana SIMS, Michael B. McKitish, and James J. Rosenberg, Defendants. |
| Court | U.S. District Court — District of New Jersey |
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Rubin, Rubin, Kaplan & Kuhn by David B. Rubin, Piscataway, NJ, for plaintiffs.
Deborah Poritz, Atty. Gen. for N.J. by Matthew R. Gabrielson, Deputy Atty. Gen., Trenton, NJ, for defendants.
OPINION GRANTING DEFENDANTS McKITISH AND ROSENBERG'S MOTION FOR SUMMARY JUDGMENT AND, UPON RECONSIDERATION, GRANTING DEFENDANT SIMS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Waste Conversion, Inc. ("Waste Conversion") is a subsidiary of plaintiff Stout Environmental, Inc. ("Stout"). Plaintiff Mark Alsentzer is the President of Stout. (Collectively the "plaintiffs.") Plaintiffs engage in the hazardous waste disposal industry in New Jersey.
Defendants Lana Sims, Michael B. McKitish, and James J. Rosenberg (collectively the "defendants") were all, at various times relevant to this case, either Director or Acting Director of the New Jersey Department of Treasury's Division of Purchase and Property ("P & P"). P & P is the New Jersey government agency responsible for negotiating outside service contracts, such as hazardous waste hauling contracts, on behalf of the state.
Plaintiffs brought this action under 42 U.S.C. § 1983 (1988), alleging that P & P's twenty-six month suspension of plaintiffs' ability to contract with the state infringed their property rights without due process of law. Plaintiffs also appended several supplemental New Jersey state law claims under 28 U.S.C. § 1367 (1988). Plaintiffs sued McKitish and Rosenberg individually, and Sims both individually and in her official capacity as the current director of P & P.
This matter originally came before the Court on defendants Rosenberg and McKitish's motion for summary judgment on plaintiffs' § 1983 claim. The Court then indicated that it would reconsider the March 30, 1993, Opinion and Order denying all defendants' cross-motion for summary judgment on qualified immunity and granting plaintiffs' motion for summary judgment on liability against defendant Sims on the § 1983 claim.
We now find that P & P provided plaintiffs with an adequate opportunity for a hearing, and thus did not infringe their property rights. Even if defendants did violate plaintiffs rights, we would find that defendants are entitled to qualified immunity. Therefore, defendants' motion for summary judgment is granted. Because plaintiffs do not bring any other federal claims, their pendent state law claims are dismissed.
Waste Conversion holds a Hazardous Waste Transporter License issued by the New Jersey Department of Environmental Protection ("DEP"). This license allows Waste Conversion to act as a broker for the transportation and disposal of hazardous waste materials generated in New Jersey. Waste Conversion's clients included the State of New Jersey.
On December 2, 1988, the DEP issued an administrative order seeking to revoke Waste Conversion's hazardous waste transporter license, to bar Alsentzer from the hazardous waste industry in New Jersey, and to impose administrative penalties on Waste Conversion. (Witt Aff. at 1a.)1 Pursuant to the New Jersey Administrative Procedure Act, N.J.S.A. § 52:14B-11 (West supp.1994), Waste Conversion and Alsentzer were given twenty days to request a hearing before an administrative law judge ("ALJ"), which they apparently did. DEP also sent a letter to Rosenberg, then Director of P & P, requesting that Waste Conversion and Alsentzer be "immediately suspended and ultimately disbarred from hazardous waste contracting with the State of New Jersey." (Witt Aff. at 37a.)
On September 8, 1989, Rosenberg issued an Order of Suspension suspending Waste Conversion and Alsentzer from contracting with the State of New Jersey "pending the completion of proceeding by the DEP to revoke Waste Conversion's waste transporter license and to bar Alsentzer from the waste industry, and pending debarment proceedings by the P & P." (Witt Aff. at 39a-40a.) The Order of Suspension also stated that "if debarment proceedings are not commenced within sixty days of the date that Waste Conversion and Mark Alsentzer are served with this Order, they shall be given a statement of the reasons for thereafter continuing the suspension and an opportunity for a hearing." (Witt Aff. at 40a.) The Order of Suspension was signed by the New Jersey Attorney General and became effective on September 22, 1989.
P & P did not initiate debarment proceedings within sixty days, nor did it inform plaintiffs2 of the reasons for its continued suspension. On April 24, 1990, McKitish, Rosenberg's successor, sent Alsentzer a letter informing him that the suspension "will remain in effect pending the outcome of the litigation by DEP." (Witt Aff. at 44a.) The letter also contained a memorandum from DEP setting forth the reasons for the suspension. (Witt Aff. at 45a-53a.) The letter did not inform plaintiffs of their right to a hearing, but plaintiffs did not request a hearing upon receiving the letter, or at any time thereafter.3
The DEP license revocation hearing before the ALJ began on May 14, 1990, and concluded on July 13, 1990. Due to numerous delays and extensions, the ALJ did not issue a final decision until April 16, 1991, and the Commissioner of DEP did not affirm that decision until November 13, 1991. That decision in large part exonerated plaintiffs: it imposed relatively minimal monetary fines and required plaintiffs to adopt a "corrective plan" addressing certain deficiencies in plaintiffs' way of doing business.
Meanwhile, on September 27, 1991, while the Commissioner of DEP was still reviewing the ALJ's decision, plaintiffs filed the instant action. Plaintiffs complained that P & P had deprived them of their ability to do business with the state for two years without due process of law, and requested monetary and injunctive relief. The case was originally assigned to another judge in this district.
On November 25, 1991, Lana Sims, the Director of P & P, advised plaintiffs that she would lift the Order of Suspension if plaintiffs would agree to abide by certain conditions, including the DEP Commissioner's "corrective plan." Apparently, these conditions were met, and plaintiffs' suspension was lifted sometime thereafter. This decision rendered plaintiffs' request for injunctive relief moot.
Defendants then brought a motion to dismiss plaintiffs' due process claim. In an Opinion dated July 8, 1992, the court held: (1) that the Eleventh Amendment barred plaintiffs' claim for monetary damages against Sims in her official capacity, (Opinion of July 8, 1992, at 7); (2) that New Jersey law created a protected property interest in contracting with the state, (id. at 9); and (3) that plaintiffs were not entitled to a pre-deprivation hearing, (id. at 14). The court then noted that the DEP proceedings would, in themselves, provide adequate post-deprivation process. (Id. at 15). The court refused to dismiss the complaint, however, because it was not clear whether P & P provided the process due "at a meaningful time." (Id. at 16).
Subsequently, plaintiffs moved for summary judgment as to liability on their federal and state law claims, and defendants cross-moved for summary judgment on the basis of qualified immunity. In an Opinion and Order dated March 30, 1993, the court denied all defendants' cross-motions for summary judgment on qualified immunity, granted plaintiffs' motion for summary judgment against defendant Sims as to liability on the § 1983 claim, denied that motion as to defendants Rosenberg and McKitish, and denied plaintiffs' motion for summary judgment on the state law claims.
The court held that plaintiffs' procedural due process rights had been violated. (Opinion of Mar. 30, 1993, at 6). The court also found that the right to a prompt post-deprivation right was "clearly established," and thus defendants were not entitled to qualified immunity. (Id. at 7). Furthermore, summary judgment on liability against Sims was appropriate because, at the time of her tenure, plaintiffs had not had a hearing for twenty-six months, and "a reasonable official standing in Ms. Sims shoes would have known what she was doing violated plaintiffs' rights." (Id. at 9). As to the other two defendants, however, it was unclear whether their acts during their tenure at P & P were unreasonable, and thus summary judgment was inappropriate.
The case was reassigned to this Court by Order dated March 28, 1994. On September 26, 1994, defendants McKitish and Rosenberg filed motions for summary judgment. In an Order dated October 5, 1994, this Court indicated that it would reconsider the March 30, 1993, Opinion and Order insofar as it granted plaintiffs' motion for summary judgment on liability as to defendant Sims, and denied all defendants' cross-motion for summary judgment.
Plaintiffs argue that we cannot reconsider the March 30, 1993, Opinion and Order. Plaintiffs premise their argument on two bases: (1) that the denial of qualified immunity was immediately appealable, and that defendants' waiver of the right to interlocutory appeal divests us of jurisdiction to reconsider the issue, and (2) that the "law of the case" doctrine precludes our reconsideration of the prior court's decision. We reject both arguments.
In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court held that "a district court's denial of a claim of qualified immunity ... is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Id. at 530, 105 S.Ct. at 2817. The Court reached this conclusion because...
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