Case 2:14-cv-02679-SRC-CLW Document 47 Filed 10/10/17 Page 1 of 8 PageID: 325
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`Civil Action No. 14-2679 (SRC)
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`OPINION & ORDER
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`::::::::::::
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`QUITMAN ROBINSON,
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`Plaintiff,
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`v.
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`NEW JERSEY TRANSIT RAIL
`OPERATIONS, INC. et al.,
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`Defendants.
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`CHESLER, District Judge
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`This matter comes before the Court on the motion to vacate the judgment or, in the
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`alternative, for remittitur by Defendant New Jersey Transit Rail Operations, Inc. (“NJTRO”).
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`For the reasons stated below, the motion will be denied.
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`This motion comes after a jury trial in which the jury awarded $300,000 in damages to
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`Plaintiff. Defendants move to vacate that judgment or, in the alternative, for the Court to Order
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`remittitur.
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`Defendants first argue that the judgment should be vacated because NJTRO is entitled to
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`the protection of sovereign immunity under the Eleventh Amendment. The parties agree that, in
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`Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989), the Third Circuit held
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`that New Jersey Transit Rail Operations, Inc. – the same entity as the Defendant in the instant
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`case – was not entitled to sovereign immunity under the Eleventh Amendment. There is also no
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`dispute that the Third Circuit has not overruled Fitchik. Defendants argue that Fitchik does not
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`bind this Court because “intervening Third Circuit precedent – taking into account United States
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`Supreme Court authority handed down after Fitchik – has held that the panel in Fitchik
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`improperly weighted the three factors to be considered to determine if an entity is an arm of the
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`state.” (Defs.’ Br. 12-13.) Plaintiff, on the other hand, contends that the Third Circuit has not
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`overruled Fitchik, which constitutes binding precedent.
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`In Fitchik, the Third Circuit established a three-factor test for entitlement to soverign
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`immunity:
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`(1) Whether the money that would pay the judgment would come from the state . .
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`(2) The status of the agency under state law . . .; and
`(3) What degree of autonomy the agency has.
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`Fitchik, 873 F.2d at 659. The Third Circuit held that the first factor was the “most important.”
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`Id.
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`In Benn v. First Judicial Dist., 426 F.3d 233, 239-40 (3d Cir. 2005), the Third Circuit
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`considered the Supreme Court’s decision in Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
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`431 (1997), and held that the first of the three factors does not hold primacy, and that the three
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`factors must be weighted equally. Because § 9.1 of the Third Circuit’s Internal Operating
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`Procedures states that a precedential decision is binding on subsequent panels and may be
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`overruled only in a decision en banc, Benn did not, and could not, overrule Fitchik.
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`In reply, Defendant argues that it is the Supreme Court’s Doe decision, not the Third
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`Circuit’s Benn decision, that overruled Fitchik. If only it were so simple! Doe did not expressly
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`overrule Fitchik. Nor did Doe establish a test for sovereign immunity, or discuss the weight to
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`be given to the question of whether the money that would pay the judgment would come from
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`the state. Note the phrasing used by the Third Circuit in Benn: “The Judicial District argues that
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`following the decision by the Supreme Court in Doe, 519 U.S. at 425, we can no longer ascribe
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`primacy to the first factor. We agree.” Benn, 426 F.3d at 239. The Third Circuit did not state
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`that, after Doe, the holding of Fitchik cannot stand. Instead, the Third Circuit stated that, going
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`forward, the first factor cannot be more important than the other two.
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`Defendants confuse two related, but different, questions. The first is: what is controlling
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`authority for the issue at hand in the motion presently at bar? The second is: what legal
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`principles govern new analyses of sovereign immunity in the Third Circuit? The questions
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`significantly differ. It appears correct that the Third Circuit no longer adheres to the legal
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`principle applied in Fitchik (the first factor has primacy). That does not mean, however, that the
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`holding of Fitchik – NJTRO is not entitled to sovereign immunity – is wrong under current law.
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`Defendants would like to persuade that, because the sovereign immunity analysis has changed in
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`the Third Circuit, Fitchik would be decided differently today, but this Court does not agree, as
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`will be explained in the discussion which follows.
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`Defendants overlook the continuing vitality of the Supreme Court’s holding in Hess v.
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`Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“When indicators of immunity point in
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`different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”)
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`In 2006 – after Benn in 2005 – the Third Circuit held:
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`However, in Hess v. Port Authority Trans-Hudson Corp., the Supreme Court
`instructed that in close cases, where “indicators of immunity point in different
`directions,” the principal rationale behind the Eleventh Amendment – protection
`of the sovereignty of states through “the prevention of federal-court judgments
`that must be paid out of a State’s treasury,” – should “remain our prime guide.”
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`Febres v. Camden Bd. of Educ., 445 F.3d 227, 229-30 (3d Cir. 2006). And more recently:
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`While our jurisprudence had long afforded the first factor—state funding—more
`weight than the others, see Fitchik, 873 F.2d at 664, we recalibrated the factors in
`light of the Supreme Court’s observation in Regents of the University of
`California v. Doe that an Eleventh Amendment inquiry should not be a
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`“formalistic question of ultimate financial liability.” We now treat all three
`Fitchik factors as co-equals, with the funding factor breaking the tie in a close
`case, see Febres, 445 F.3d at 229-30 (citing Hess, 513 U.S. at 47-48, 52).
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`Maliandi v. Montclair State Univ., 845 F.3d 77, 84 (3d Cir. 2016) (citations omitted). With the
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`funding factor now used as tie-breaker, it does not appear that Fitchik, where the indicators of
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`immunity did point in different directions, would have a different outcome today. In any case,
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`this Court today resolves this question by the application of controlling precedent.
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`Defendants also argue: “Starting with Benn, the Third Circuit has consistently held that
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`an entity is an arm of the state entitled to sovereign immunity if two Fitchik factors weigh in
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`favor of immunity.” (Defs.’ Br. 14.) This assertion, followed by three Third Circuit case
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`citations, is misleading insofar as it is suggests that the Third Circuit has adopted a “best two out
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`of three” rule; the cited cases show no sign of such a rule. It is correct that in McCauley v. Univ.
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`of the V.I., 618 F.3d 232 (3d Cir. 2010) and Bowers v. NCAA, 475 F.3d 524 (3d Cir. 2007), the
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`Third Circuit found that two of the three factors weighed in one direction, and concluded that the
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`overall sovereign immunity determination matched the direction of those two factors; the Third
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`Circuit did not, however, state that it did so because it treated the analysis as a vote by the
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`factors. Defendants also inaptly cite Benn, in which the three factors all pointed in the same
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`direction. Maliandi provides the clearest recent guidance on the present state of Third Circuit
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`law.
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`Defendants also overlook that the fact that the federal legal system is based on the
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`principle of stare decisis – which is Latin for, “to stand by that which is decided.” The Supreme
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`Court has addressed the question of the application of stare decisis when past decisions are
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`questionable, even wrong:
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`Overruling precedent is never a small matter. Stare decisis —in English, the idea
`that today’s Court should stand by yesterday’s decisions—is “a foundation stone
`of the rule of law.” Application of that doctrine, although “not an inexorable
`command,” is the “preferred course because it promotes the evenhanded,
`predictable, and consistent development of legal principles, fosters reliance on
`judicial decisions, and contributes to the actual and perceived integrity of the
`judicial process.” It also reduces incentives for challenging settled precedents,
`saving parties and courts the expense of endless relitigation.
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`Respecting stare decisis means sticking to some wrong decisions. The doctrine
`rests on the idea, as Justice Brandeis famously wrote, that it is usually “more
`important that the applicable rule of law be settled than that it be settled right.”
`Indeed, stare decisis has consequence only to the extent it sustains incorrect
`decisions; correct judgments have no need for that principle to prop them up.
`Accordingly, an argument that we got something wrong—even a good argument
`to that effect— cannot by itself justify scrapping settled precedent. Or otherwise
`said, it is not alone sufficient that we would decide a case differently now than we
`did then.
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`Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (citations omitted). This squarely
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`addresses the matter at hand. Defendants’ challenge to Fitchik as precedent rests on the
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`argument that the decision is incorrect under current Third Circuit law. In Kimble, the Supreme
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`Court stated that that argument “cannot by itself justify scrapping settled precedent.” Id. In
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`short, the argument that Fitchik was incorrectly decided does not erase the fact that it is currently
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`controlling precedent in this Circuit.
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`Defendants’ argument does not say more than that the law has changed since Fitchik was
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`decided and that, if the Third Circuit were to address that case today, it would apply a different
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`legal standard. While that may well be correct, it does not address the question this Court must
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`now answer: is Fitchik controlling authority for this Court today? As the Supreme Court held in
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`Kimble, even if Fitchik is incorrect under current law, it is still controlling precedent. NJTRO is
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`not entitled to the protection of sovereign immunity. Therefore, the Court need not reach the
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`question of whether this defense was waived.
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`In the alternative, if this Court were to predict how the Third Circuit would rule on
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`Fitchik today, under current law, this Court holds that the Third Circuit would still find that
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`NJTRO is not entitled to Eleventh Amendment immunity. The Fitchik Court held, in short, that
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`the first factor “weighs strongly against” a finding of immunity, the second factor was “only
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`slightly” in favor of immunity, and the third factor was “slightly” in favor of immunity. 873
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`F.2d at 662-64. This Court discerns two conceivable ways of adding this up under current law:
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`1) the overall weight of the factors, weighted equally, weighs against a finding of immunity; or
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`2) this is a close case, so the first factor functions as a tie-breaker, resulting in a finding of no
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`immunity. This Court does not discern a reasonable possibility that the Third Circuit would
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`conclude, based on their subfindings in Fitchik, that the overall weight of the three factors favors
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`a finding of immunity.
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`Defendants argue that, were the Third Circuit to examine the evidence today, and make
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`new findings on each of the factors, it would arrive at a different conclusion. Defendants first
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`argue that “the intervening years have made NJ Transit’s status as a state agency under state law
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`more evident.” (Defs.’ Br. 15.) In support, Defendants point to the New Jersey Constitution and
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`to various state statutes. The Court takes judicial notice of the fact that the New Jersey
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`Constitution was enacted in 1947 and has not been since amended in any way relevant to the
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`matters at hand. While Defendants point to a number of state statutes that relate to NJTRO,
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`conspicuously absent is any assertion that any of these statutes has been enacted or changed
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`since Fitchik. Defendants have offered no basis to conclude that there is any new evidence in
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`regard to the second factor.
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`As for the third factor, again, Defendants cite a number of state statutes that relate to
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`NJTRO; again, conspicuously absent is any assertion that any of these statutes has been enacted
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`or changed since Fitchik. Defendants have offered no basis to conclude that there is any new
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`evidence in regard to the third factor.
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`As to the first factor, Defendants argue that changes in the law since Fitchik would result
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`in a finding that the funding factor weighs in favor of a finding of immunity. Defendants
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`contend that “the Legislature continues to appropriate substantial funds to NJ Transit annually to
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`help cover NJ Transit’s substantial operating deficit.” (Defs.’ Br. 23.) Conspicuously absent is
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`any evidence that there has been any change in this situation since Fitchik: if this was happening
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`in 1989, and it continues, how would that impact the Third Circuit’s findings on the funding
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`factor?
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`Defendants have failed to support their suggestion that the relevant facts have changed
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`since Fitchik was decided. This Court finds no basis to conclude that the Third Circuit, faced
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`with the question of whether NJTRO is entitled to immunity under the Eleventh Amendment,
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`would arrive at a conclusion that differs from what it held in Fitchik. The motion to vacate the
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`judgment will be denied.
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`Defendants also argue that the jury verdict of $300,000 as damages for pain and suffering
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`was excessive and ask the Court to Order remittitur. Under Third Circuit law, on a motion for
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`remittitur, the Court “may not require a reduction in the amount of the verdict to less than the
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`‘maximum recovery’ that does not shock the judicial conscience.” Gumbs v. Pueblo Int’l, Inc.,
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`823 F.2d 768, 774 (3d Cir. 1987).
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`The Court makes two observations. First, in support of their motion, Defendants submit
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`a document stating a jury verdict of $210,000 for pain in another case that Defendants
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`characterize as having similar facts. If Defendants offer this – $210,000 – as an example of a
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`reasonable jury verdict, an award of $300,000 does not shock the judicial conscience. Second,
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`as Plaintiff contends, Defendants’ brief contains conclusory statements about the evidence that
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`they believe fails to support the jury verdict, but no citations to the record or to the trial
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`transcript. In the words of the Third Circuit:
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`It has been oft-noted that “Judges are not like pigs, hunting for truffles buried in
`the record.” And this Court has frequently instructed parties that they bear the
`responsibility to comb the record and point the Court to the facts that support their
`arguments.
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`United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (citations omitted). Defendants have
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`not taken heed of this admonition.1 The motion for remittitur will be denied.
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`For these reasons,
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`IT IS on this 10th day of October, 2017,
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`ORDERED that Defendants’ motion to vacate judgment or, in the alternative, for
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`remittitur (Docket Entry No. 39) is DENIED.
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` s/ Stanley R. Chesler
`Stanley R. Chesler, U.S.D.J
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`1 In reply, Defendants argue that Plaintiff provides no citation for the contention that a
`moving party should cite evidence supporting its motion. Is there really a question about that
`proposition?
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`8
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