LaPorte v. City of New Castle
Filing
20
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 8/19/15. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENNETH L. U\PORTE, JR.,
Plaintiff,
v.
Civ. No. 13-1229-LPS
CITY OF NEW CASTI.E, DELAWARE,
Defendant.
Kenneth L. LaPorte, Jr., Bremerton, Washington, Pro Se Plaintiff.
Thaddeus James Weaver, Esquire, Dilworth Paxson LLP, Wilmington, Delaware. Counsel for
Defendant.
MEMORANDUM OPINION
August 19, 2015
Wilmington, Delaware
1.
INTRODUCTION
Plaintiff Kenneth L. LaPorte, Jr., ("Plaintiff') filed this action on July 12, 2013. He proceeds
pro se and was granted informa pauperis status. The Court has jurisdiction by reason of diversity
pursuant to 28 U.S.c. § 1332. Presendy before the Court is Defendant's renewed motion to dismiss
under Rule 12(b)(6). (D.l. 18) Plaintiff did not file a response to the motion.
II.
BACKGROUND
Plaintiff served as a police officer for Defendant in the late 1970s to the early 1980s. (D.l. 2
Ex. 2 at 2) His original complaint contains three claims, as follows: (1) Plaintiff is en tided to
pension payments or some other employment benefit pension payments; (2) Plaintiff was subjected
to a hostile work environment based on his sexual orientation; and (3) Defendant retaliated against
Plaintiff after he setded an unrelated lawsuit, when it disseminated false information about him and
committed fraud and caused perjury allegations to be brought against Plaintiff in a disability hearing,
violating Plaintiffs constitutional rights. (D.I. 2 ~~r IIl.c, b; V. a-d.) On August 8, 2014, the Court
granted Defendant's motion to dismiss and motion for a more definite statement. (D.l. 16) The
Court dismissed the pension benefit claim as time-barred and the hostile work environment claim
for failure to exhaust administrative remedies as required under the Civil Rights Act of 1964,42
U.S.c. § 2000e-5(e). With regard to the retaliation claim, the Court found it wholly lacking in details
and granted Defendant's motion for a more definite statement. Plaintiff was ordered to provide
Defendant with a more definite statement and was also given the option of filing an amended
complaint.
Plaintiff filed an amended complaint on September 2,2014. (D.l. 17) The amended
complaint contains two counts and re-alleges the facts contained in the original complaint. Count 1
raises a breach of contract/breach of implied contract claim with regard to entidement to a pension
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award and Count 2 raises a breach of contract/retaliation claim. Defendant moves for dismissal
pursuant to Rule 12(b)(6) as to Count 1 on the grounds that Plaintiff has no right to a pension and
as to Count 2 that it is time-barred.
III.
LEGAL STANDARDS
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the
Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223
(3d Cit. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1420 (3d Cit. 1997) (internal quotation marks omitted). Thus, the Court may grant such a
motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and
viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna,
Inc., 221 F.3d 472, 481-82 (3d Cit. 2000) (internal quotation marks omitted). However, "[t]o survive
a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative
level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'"
Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cit. 2007) (quoting BellAti. Cop. v. TwomblY, 550 U.S.
544,555 (2007». A claim is facially plausible "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At bottom, "[t]he complaint must state enough facts to
raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a
plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cit. 2008)
(internal quotation marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. uwer Merion Sch. Dist.,
132 F.3d 902,906 (3d Cit. 1997) (internal quotation marks omitted), "unsupported conclusions and
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llllwarranted inferences," SchlfYikili Ene®, Res., Inc. v. Penn.ryivania Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d
Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his amended
complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal quotation marks
omitted).
IV.
DISCUSSION
A
Countl
Defendant moves to dismiss COllllt 1 on the grollllds that Plaintiff has no claim against it.
The amended complaint amends the pension benefits claim (as alleged in the original complaint)
into a breach of contract claim.! COllllt 1 of the Amended Complaint alleges that Defendant
breached its contract with Plaintiff when it violated City Ordinance No. 178 §§ 1.14, 2, 2.3, 8, 8.1
(original and as amended) and Ordinance No. 219 by failing to award Plaintiff any and all benefits
llllder an employee-employer contract. Plaintiff submitted an application or request for a disability
pension in 1979. (D.I. 17 Ex. 3) A hearing was scheduled for October 3, 1979, and Plaintiff was
provided with a copy of the pension ordinance. (Id. at Exs. 3, 5) A hearing was later scheduled for
January 17, 1980. (Id. at
6) Plaintiff alleges that he timely sought pension benefits and was
wrongfully denied benefits by the City Pension Plan Board. (!d. at 2)
Ordinance No. 178 § 8 .1 provides that
The City reserves the right at any time, ... to modify or amend in whole or part any
or all of the provisions of the Plan. This right of the City is subject to the conditions
(a) that no modification adversely affects the benefits llllder the Plan of anyone then
being paid a benefit whether he be an Employee, Former Employee or
In the August 8, 2014 Memorandum Order, the Court dismissed the pension benefits claim as
time-barred.
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beneficiary. .. .
(ld. at Ex. 12) The Court takes judicial notice that, on June 13, 1995, in Resolution 95-8, Defendant
elected to participate in the Delaware County and Municipal Police/Firefighters Pension Plan
("1995 Pension Plan") on or after July 1, 1995. See http://ecode360.com/8873521 (Aug. 17,2015).
Count 1 fails for two reasons. First, it is obvious from the face of the amended complaint
that, to the extent Plaintiff alleges a breach of contract claim, the claim is time-barred by reason of
the three-year statute of limitations for breach of contract claims under Delaware law. See 10 Del. C.
§ 8106. Plaintiff was denied benefits sometime in 1980, and he did not file this lawsuit until 2013,
long after the statute of limitations expired.
Second, the allegations in the amended complaint fail to state a claim upon which relief may
be granted. Plaintiff alleges that the pension ordinances are applicable because they were in effect
when he was employed by Defendant. A plain reading of Ordinance No. 178 § 8.1 indicates that a
subsequent modification of the ordinance would only affect Plaintiff had he been awarded pension
benefits (i.e., "no modification [may] adverselyaffectD the benefits under the Plan of anyone then
beingpaid a benefit') (emphasis added). However, the allegations are that Plaintiff never received
a pension under the pension ordinances in effect at the time of his request.
Moreover, Defendant's current pension plan is limited to persons who were employed on or
after the date Defendant affiliated with the 1995 Pension Plan, and Plaintiff's employment with
Defendant ended in the early 1980s. See 11 Del. C. §§ 8801(11), 8843
Accordingly, for the reasons stated, the Court will grant the renewed motion to dismiss
Count 1 of the amended complaint.
B.
Count 2
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Defendant moves to dismiss Count 2 on the grounds that it is time-barred under either 10
Del. C. § 8111 (one-year statute of limitations period) or 10 Del. C. § 8206(a) (three-year statute of
limitations period) given that Plaintiff alleges he was wrongly denied a pension thirty-five years ago.
Count 2 alleges that:
Defendant knowingly breached the Contract with the Plaintiff to retaliate for filing a
civil lawsuit unrelated to this claim at approximately the same period. The
Defendant knew or should have known the severity of the Plaintiffs on the job
injuries and complied with the contract provisions to help alleviate the Plaintiffs
sufferings as a result of those injuries.
(D.l. 17 at ~ III, Count 2)
It is clear from the allegations in the amended complaint that Count 2 is time-barred.
Plaintiff waited some thirty years to seek relief for the denial of his pension claim, long after the time
by which the statute of limitations required him to do so.
In addition, the claim fails to the extent that Plaintiff alleges Defendant retaliated against him
for filing an unrelated lawsuit around the same time. A municipality can only be found liable for a
constitutional violation pursuant to § 19832 when it is found to have direcdy caused a violation
through a "policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body's officers" or an informal "custom or usage." Brown v. Muhlenberg Twp., 269 F.3d 205,
215 (3d Cir. 2001) (quoting Monell v. New York
Ciry Dep't of Soc. Seros., 436 U.S.
658 (1978)). The
amended complaint contains no such allegations.
2 When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a
federal right, and that the person who caused the deprivation acted under color of state law. See
West v. Atkins, 487 U.S. 42, 48 (1988).
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Also, a retaliation claim under 42 U.S.c. § 1983 has a two-year statute of limitations period
and, due to the thirty-year delay in filing this lawsuit, the claim is time-barred. 3
The claims in Count 2 are time-barred and, therefore, the Court will grant Defendant's
renewed motion to dismiss Count 2 of the amended complaint.
V.
CONCLUSION
For the above reasons, the Court will grant Defendant's renewed motion to dismiss. (D.I.
18)
An appropriate Order will be entered.
For purposes of the statute of limitations, § 1983 claims are characterized as personal injury actions, see Wilson v. Garcia,
471 U.S. 261,275 (1983), and accrue "when the plaintiff knew or should have known of the injury upon which its action
is based," Samenc Corp. v. City of Philadelphia, 142 F.3d 582, 5~ (3d Cir. 1998).
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