SHAW v. HOUSING AUTHORITY OF THE CITY OF CAMDEN et al
Filing
39
OPINION AND ORDER granting 24 Motion to Dismiss. ORDERED that Plaintiff will be given "one final opportunity" to further amend. To the extent Plaintiff seeks to amend his complaint, he may do so within 30 days of the entry of this order, etc.. Signed by Judge Renee Marie Bumb on 08/10/2012. (tf, )
NOT FOR PUBLICATION
[Dkt. Ent. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KENNETH SHAW,
Plaintiff,
Civil No. 11-4291 (RMB/AMD)
v.
OPINION and ORDER
HOUSING AUTHORITY OF CAMDEN,
et al.,
Defendants.
Appearances:
George R. Szymanski
Law Office of George R. Szymanski
1370 Chews landing Road
Laurel Springs, NJ 08021
Attorney for Plaintiff
Christine P. O’Hearn
Brown & Connery, LLP
360 Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Attorney for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court on a Motion to Dismiss
Plaintiff Kenneth Shaw’s (“Plaintiff”) Second Amended Complaint,
(“Complaint”) filed by defendants Housing Authority of the City
of Camden, Gloria Jackson-Wright, Maria Marquez, Victor Figeroa,
1
Bernardina Plumey, Thomas Kwartnik, Melvin Gibson, and Vincent
Miluro, (collectively, the “Defendants”).
[Dkt. Ent. 24.] In
the Complaint, Plaintiff Kenneth Shaw alleges six causes of
action:
Promissory Estoppel (Count 1), Federal Civil Rights
Violations(Count 2), Violation of New Jersey Law Against
Discrimination (Count 3), Intentional Inflection of Emotional
Distress (Count 4), Fraud (Count 5)and Defamation (Count 6).
Defendants, save for Camden Housing Authority and Gloria
Jackson-Wright, move to dismiss the Complaint in its entirety.
Defendants Camden Housing Authority and Gloria Jackson-Wright
move to dismiss Count 2 with respect to 42 U.S.C §§1985 and 1986
and Count 6.1
For the foregoing reasons, Defendant’s Motion is GRANTED.
BACKGROUND
A detailed recitation of the underlying facts related to
all counts before the Court has been set forth in the Court’s
Opinion dated August 10, 2012 and is incorporated by reference
herein.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Sheridan v. NGK Metals
Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010) (quoting Ashcroft
v. Iqbal, –- U.S. --, 129 S. Ct. 1937, 1949 (2009)).
“A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
(quoting Iqbal, 129 S.Ct. at 1949).
1
For reasons unclear to this Court, these Defendants did not move to
dismiss the §1983 allegation.
2
The Court conducts a three-part analysis when reviewing a
claim:
First, the court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Iqbal, 129 S. Ct.
at 1947.
Second, the court should identify allegations
that, “because they are no more than conclusions are not
entitled to the assumption of truth.”
Id. at 1950.
Finally, “where there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for
relief.” Id.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010);
see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009) (“. . . [A] complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to “show”
such an entitlement with its facts.”).
LEGAL ANALYSIS
I. Counts Against Newly Named Defendants
Plaintiff’s Second Amended Complaint includes six
previously unnamed employees of the Camden Housing Authority as
defendants. Specifically, Maria Marquez, Victor Figeroa,
Bernardina Plumey, Thomas Kwartnik, Melvin Gibson and Vincent
Miluro are named as parties to the action for the first time and
identified by the Plaintiff as employees of the Camden Housing
Authority.
Defendants now ask the Court to dismiss all claims
against them because they allege that there are no factual
averments related to any act or omission attributable to these
new defendants present in the Complaint.
Even under the most liberal notice pleading requirements of
3
Rule 8(a), a plaintiff must differentiate between defendants.
Pietrangelo v. NUI Corp., 2005 WL 1703200 (D.N.J. 2005).
In
Pietrangelo, the plaintiff’s complaint, though voluminous,
failed to mention several defendants individually in any of the
allegations, instead, referring to all of the defendants
collectively as “Defendants” throughout. The court held that the
“lumping together” of defendants “fails to put the various
defendants on notice of the allegations against them.” Id.
(compare H2O Plus, LLC. V. Arch Personal Care Products, L.P,
2011 WL 2038775 (D.N.J. 2011) distinguishing Pietrangelo amid a
complaint that differentiated between defendants by utilizing
headings in its complaint that indicated which counts were
against which defendant, with only a small number of counts
against both defendants.)
The Complaint at issue here is analogous to the situation
in Pietrangelo. Though the Complaint lists each new defendant by
name and title when numerating the parties to the action, none
are ever mentioned elsewhere in the complaint. As such, the new
defendants are not on notice of the allegations against them.
Therefore, the claims against them are dismissed.2
II. 42 U.S.C. §§1985 and 1986 Claims
The Court previously dismissed these claim due to the vague
and conclusory nature of the allegations. [Dkt. Ent. 7].
Plaintiff has failed to allege any more facts to render his
claim plausible under Iqbal/Twombly. In fact, Plaintiff’s
2
Because the Court is dismissing all counts against the new defendants
on grounds that the Complaint fails to follow the requirements of
Federal Rules of Civil Procedure 8(b), it is not necessary to reach
Defendants’ argument that any claims in tort must fail amid a lack of
proper notice under the New Jersey Tort Claims Act. See N.J.S.A. 59:89. To the extent that Plaintiff seeks to amend his complaint, he will
also be required to show that notice was served on these defendants in
compliance with the Act.
4
Complaint with respect to this count is identical to its earlier
iteration save for the addition of one sentence stating, “the
defendants conspired to deprive plaintiff of his job and
constitutional rights, as there was a meeting of their minds
with regard to that, and as they acted with the common purpose
of trying to deprive the plaintiff of his job and constitutional
rights.” [Complaint ¶24]. Given that this sentence also
represents a legal conclusion and is absent any fact to render
the claim plausible, the Court now dismisses this claim for a
second time on the same grounds. To the extent that the
Plaintiff seeks to file a Third Amended Complaint, he shall
follow the Court’s instruction outlined below.
III. Defamation
This Court in its Opinion of August 10, 2012 denied
Plaintiff’s Motion for Reconsideration and his request for Leave
to File a Late Notice of Claim. As such, Defendants’ Motion to
Dismiss this count is moot as this claim was previously
dismissed with prejudice.
CONCLUSION
For the foregoing reasons, it is now this 10th day of
August, 2012 ORDERED that Defendants’ Motion to Dismiss is
GRANTED; and it is further ORDERED that although Plaintiff has
already had two opportunities to amend, in light of the liberal
amendment standard, Plaintiff will be given “one final
opportunity” to further amend. Resnik v. Boskin, No. 09–5059,
2011 WL 689617, at *9 (D.N.J. Feb.17, 2011); Fennell v. Alie,
2009 WL 2984200, at *2 (D.Del. Sept.16, 2009) (affording
plaintiff a “final opportunity” to amend where he had already
amended once and the court could not say that amendment would be
5
futile). To the extent Plaintiff seeks to amend his complaint,
he may do so within 30 days of the entry of this order.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: August 10, 2012
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?