                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 11-2843
                                 _____________

                           JEFFREY J. HEFFERNAN,
                                      Appellant

                                        v.

    CITY OF PATERSON; MAYOR JOSE TORRES; POLICE CHIEF JAMES
            WITTIG; POLICE DIRECTOR MICHAEL WALKER
                           _____________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                         District Court No. 2-06-cv-03882
               District Judge: The Honorable Dennis M. Cavanaugh

                              Argued June 28, 2012

                   Before: SMITH and FISHER, Circuit Judges
                      and RAKOFF, Senior District Judge*

                              (Filed: July 16, 2012)


Alexandra M. Antoniou
Mark B. Frost     (Argued)
Ryan M. Lockman
Emily K. Murbarger
Mark B. Frost & Associates
7 North Christopher Columbus Boulevard

*
 The Honorable Jed S. Rakoff, Senior District Judge for the United States District
Court for the Southern District of New York, sitting by designation.
                                         1
Pier 5 at Penn‟s Landing, 2nd Floor
Philadelphia, PA

Gregg L. Zeff
Suite 305
100 Century Parkway
Mount Laurel, NJ
       Counsel for Appellant

William T. Connell
Albert C. Lisbona
Dwyer, Connell & Lisbona
100 Passaic Avenue
Third Floor
Fairfield, NJ

Michele L. DeLuca
Gary Potters
Potters & Della Peitra
100 Passaic Avenue
Fairfield, NJ

Mitzy R. Galis-Menendez
Chasan, Leyner & Lamparello
300 Harmon Meadow Boulevard
6th Floor
Secaucus, NJ

Joseph Michael Morris, III
Thomas P. Scrivo
McElroy, Deutsch, Mulvaney & Carpenter
100 Mulberry Street
Three Gateway Center
Newark, NJ

Victor A. Afanador      (Argued)
Lite, De Palma, Greenberg
Two Gateway Center
12th Floor
Newark, NJ
                                      2
                                 Counsel for Appellees
                             _____________________

                                    OPINION
                             _____________________

SMITH, Circuit Judge.

      Plaintiff Jeffrey Heffernan appeals from summary judgment entered against

him in his First Amendment civil rights case. We will reverse.

      Heffernan is a police officer working for the City of Paterson, New Jersey.

During the Paterson mayoral election of 2006, Heffernan was asked by his mother

to obtain a yard sign for Lawrence Spagnola, a long-time Heffernan family friend

and Defendant Mayor Jose Torres‟ principal opponent. Heffernan was off-duty at

the time. Heffernan met with Councilman Aslon Goow, Spagnola‟s campaign

manager, and obtained a sign. When Defendant Police Chief James Wittig learned

of this, Heffernan was abruptly transferred out of his position in the Police Chief‟s

office, stripped of his title of detective, and reassigned to a series of allegedly

punitive positions.1   Defendant Wittig admitted that this action was in direct

response to Heffernan‟s alleged political involvement. Defendants Wittig, Torres,

and other witnesses concede that off-duty police officers in Paterson are free to




1
  Plaintiff also alleges that as a result of his actions, his weapons – both duty and
personal – were taken from him, and that he was improperly denied a promotion to
sergeant.
                                         3
engage in political activity. But Wittig claims that an unwritten policy against

political involvement existed for officers working in the Chief‟s office.

      This case comes to us after a complicated and highly unusual history in the

District Court. Heffernan filed this case in the District of New Jersey, seeking

compensatory and punitive damages for civil rights violations under 42 U.S.C.

§ 1983. The parties eventually filed cross-motions for summary judgment.2 These

were denied by District Judge Peter G. Sheridan, and the case proceeded to trial.

Despite First Amendment Free Speech arguments being raised repeatedly in pre-

trial filings, the case went to trial solely on First Amendment Free Association

grounds. The jury was charged solely on Free Association and returned a verdict

for Heffernan of $105,000 in compensatory and punitive damages.

      Up until that point, this case was a relatively straightforward civil rights

action. But several months after the jury rendered a verdict in favor of Heffernan,

Judge Sheridan retroactively recused himself due to what he perceived as a conflict

of interest. The case was set for retrial and assigned to District Judge Dennis M.

Cavanaugh. The parties agreed that Judge Cavanaugh should revisit their pretrial

motions, including the cross-motions for summary judgment.           But each party

qualified this agreement. Defendants asked for oral argument on the motions. And


2
  Heffernan‟s motion was labeled as a “Motion in Limine,” but we believe it is
more properly viewed as a Motion for Partial Summary Judgment. The substance
of the motion is the same regardless.
                                          4
Plaintiff asked for the opportunity to file an opposition to Defendants‟ motion and

to supplement the record with evidence obtained in the jury trial. The parties had

not been permitted to file oppositions in the original briefing on the motions.

      Though Judge Cavanaugh initially indicated that he would not revisit

dispositive motions, he eventually agreed to do so. He did deny the request for

additional briefing.   Judge Cavanaugh later granted Defendants‟ motion and

entered judgment in their favor.      He concluded that because Heffernan had

repeatedly indicated that he was retrieving the sign for his mother and that he was

not campaigning for Spagnola, Heffernan was not engaging in speech and was not

entitled to the protections of the Free Speech Clause of the First Amendment.

Judge Cavanaugh‟s opinion made no mention of Heffernan‟s Free Association

claim, despite Heffernan having received a jury verdict in his favor on that claim.

      We first consider an underlying procedural matter. Heffernan contends that

the District Court erred in denying him permission to file an opposition to

Defendants‟ summary judgment motion.          Our standard of review for such a

procedural matter is abuse of discretion. See, e.g., Burtch v. Milberg Factors, Inc.,

662 F.3d 212, 220 (3d Cir. 2011) (abuse-of-discretion review for denial of leave to

amend); In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d Cir. 2010)

(abuse-of-discretion review for denial of leave to intervene); Pippin v. Burlington

Res. Oil & Gas Co., 440 F.3d 1186, 1191-92 (10th Cir. 2006) (“Whether a non-

                                          5
moving party has had an opportunity to respond to a moving party‟s reply brief at

the summary judgment stage is a „supervision of litigation‟ question that we review

for abuse of discretion.”). We conclude that the District Court abused its discretion

by barring the Plaintiff from filing an opposition here.

      It is extremely unusual in our experience for a District Court to deny

permission to file opposition briefs, particularly on a dispositive motion. It is

difficult to see how a contested summary judgment motion could ever be decided

without opposition briefing, unless the parties agreed to the facts. Issues of fact are

quite often key disputes on summary judgment, with the movant asserting that

facts supporting its motion cannot be genuinely disputed, and the non-movant

responding that certain facts can indeed be genuinely disputed. See Fed. R. Civ. P.

56(c); D.N.J. L. Civ. R. 56.1(a). The parties will often contest materiality and

supporting evidence in a similar manner. See Fed. R. Civ. P. 56(c)(2) (permitting

challenges to supporting evidence). The local rules for the District of New Jersey

contemplate that the parties will file both an opposition and a reply to any

summary judgment motion. See D.N.J. L. Civ. R. 56.1(a). The District Court gave

no explanation for its departure from the prescribed practice.

      The District Court may have thought that barring additional briefing was

justified by Judge Sheridan‟s refusal to permit oppositions and replies when the

motions were initially filed.     That conclusion assumes that Judge Sheridan‟s

                                          6
decision was itself justified. But even if it were, Plaintiff specifically requested

additional briefing as a condition of his consent to have the District Court re-

examine the summary judgment motion.

      Plaintiff had good reason to ask for additional briefing, as the jury trial

produced numerous additional facts, all of which should have been considered in

re-examining the motion for summary judgment. Defendants contend that the

record of the jury trial should not be considered on summary judgment, asserting

that the effect of Judge Sheridan‟s recusal is to turn back the clock to the summary

judgment stage and pretend the jury trial never happened. Their source for this

dubious proposition is unclear. They cite no federal precedent supporting it. Our

cases emphasize the importance of notice and opportunity to respond, and a party

has not had a full opportunity to respond if it is unreasonably prevented from

offering all relevant, reliable evidence.    See, e.g., Acumed LLC v. Advanced

Surgical Servs., Inc., 561 F.3d 199, 223 (3d Cir. 2009) (requiring a party be given

the “opportunity to support its position fully” before summary judgment is

entered); Davis Elliott Int’l, Inc. v. Pan Am. Container Corp., 705 F.2d 705, 707-

08 (3d Cir. 1983) (requiring a party “be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56” (quoting Bryson v. Brand

Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980))). Evidence obtained in a jury



                                         7
trial – even one involving a later recusal – is at least as reliable as other pieces of

evidence, such as affidavits, that are routinely considered on summary judgment.

       In Jackson v. State of Alabama State Tenure Commission, 405 F.3d 1276

(11th Cir. 2005), a public-employee free speech case, the Eleventh Circuit

considered a fact pattern similar to the one here. Summary judgment was initially

granted, but then reversed by the Eleventh Circuit, with the case remanded and

tried before a jury. See id. at 1280. The jury verdict was then vacated because a

juror had lied about her criminal history. Before the second trial, the trial judge

recused himself. See id. The new trial judge revisited and granted the summary

judgment motion. The Eleventh Circuit affirmed. It specifically held that the

district court was justified in granting a summary judgment motion that the

Eleventh Circuit itself had previously denied because the district judge “had before

him the transcript of the first trial[.]” Id. at 1285. Detailing the evidence that

supported summary judgment, the Eleventh Circuit explained that “the law of the

case did not preclude entry of summary judgment . . . on the record as it stood at

the end of the first trial.” Id.

       Given that the District Court‟s conclusion that Heffernan did not speak was

based on pre-trial discovery alone, trial testimony that qualifies or undermines that

evidence is highly relevant, and should not have been set aside by the District

Court. On remand, the District Court is instructed to permit the parties to re-file

                                          8
their summary judgment motions with updated statements of undisputed material

fact and to allow full opposition and reply briefing.

      Turning to the substance of the District Court‟s opinion, we review a District

Court‟s grant of summary judgment de novo. See Beers-Capitol v. Whetzel, 256

F.3d 120, 130 n.6 (3d Cir. 2001). Summary judgment is appropriately granted “if

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On

summary judgment, we must view the facts in the light most favorable to the non-

movant (Plaintiff Heffernan) and draw all reasonable inferences in his favor. See

Beers-Capitol, 256 F.3d at 130 n.6; Big Apple BMW, Inc. v. BMW of N. Am., Inc.,

974 F.2d 1358, 1363 (3d Cir. 1992). We conclude that the able District Judge

erred by failing to address Heffernan‟s Free Association claim.

      Heffernan‟s Free Association claim clearly appeared in his “Motion in

Limine” and his Trial Brief. Judge Sheridan concluded that the Free Association

claim was fairly presented and that Defendants had an opportunity to obtain

discovery on it. The Free Association claim was tried and Heffernan obtained a

jury verdict in his favor, specifically on Free Association. Given these facts, it was

reversible error for the District Court to fail to address Heffernan‟s Free

Association claim before entering judgment in favor of the Defendants.



                                          9
      Defendants assert that Heffernan did not adequately plead his Free

Association claim and that – at a minimum – they should have been entitled to

additional discovery before proceeding to trial on the Free Association claim. We

leave these objections for consideration by the District Court. We hold solely that

it was error for the District Court to enter judgment in favor of Defendants after

discussing only Heffernan‟s Free Speech claim, considering that Heffernan had

previously obtained a jury verdict on his Free Association claim. On remand, the

District Court should consider the extent to which Heffernan prosecuted his Free

Association claim and whether Defendants timely objected to trial of the Free

Association claim.     The District Court should also consider the appropriate

remedy, whether it be dismissal of the Free Association claim, reopening discovery

solely on Free Association, or proceeding to trial.

      In light of our conclusion that the District Court‟s entry of judgment resulted

from both procedural and substantive errors, we will reverse. We do not reach the

question of the viability of Heffernan‟s Free Speech claim. The District Court

should re-examine that claim in light of the full record and the parties‟

supplemental briefing.




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