BEAN v. STATE OF NEW JERSEY JUDICIARY et al

Filing 12

OPINION. Signed by Judge Noel L. Hillman on 9/26/2013. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LISA S. BEAN,

Civ. No. 12-5127 (NLH/KMW)
Plaintiff,
OPINION

v.
STATE OF NEW JERSEY
JUDICIARY, et al.,
Defendants.

APPEARANCES:
F. Michael Daily, Jr., Esquire
F. Michael Daily, Jr., LLC
Sentry Office Plaza
216 Haddon Avenue
Suite 100
Westmont, New Jersey 08108
Attorney for Plaintiff Lisa S. Bean
Kelly A. Samuels, Esquire
State of New Jersey
Office of the Attorney General
Division of Law
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625
Attorneys for Defendants State of New Jersey, State of New
Jersey Judiciary, Superior Court of New Jersey – Camden
Vicinage, Michael O’Brien, James Grazioli, and Peter Cupo

HILLMAN, District Judge
This matter comes before the Court by way of motion [Doc.
No. 7] by Defendants State of New Jersey, State of New Jersey
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Judiciary, Superior Court of New Jersey – Camden Vicinage,
Michael O’Brien, James Grazioli, and Peter Cupo (collectively,
the “Defendants”) seeking to dismiss Plaintiff’s complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction and 12(b)(6) for failure to state a
claim upon which relief can be granted.

Plaintiff opposes the

motion to dismiss with respect to several counts, but concedes
that several other counts should be dismissed.

The Court has

considered the parties’ submissions and decides this matter
pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendants’ motion will be
granted in part and denied without prejudice in part.

I.

JURISDICTION
Plaintiff brings this action pursuant to 42 U.S.C. § 2000e

et seq. and 42 U.S.C. § 1983 alleging violations of Title VII of
the Civil Rights Act of 1964 and violations of her constitutional
rights.

Plaintiff also brings this action pursuant to the New

Jersey Law Against Discrimination, and asserts various other
state law claims.

This Court exercises jurisdiction over

Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331, and over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.

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II.

BACKGROUND
Plaintiff is a forty-five year old, African-American woman

employed by the Superior Court of New Jersey for the Camden
Vicinage in the court’s Bail Unit.

(Compl. ¶¶ 8, 14, 16.)

At

the time Plaintiff filed the complaint in this case on August 15,
2012 she was proceeding pro se and her complaint named the
following Defendants: (1) the State of New Jersey Judiciary,
Camden Vicinage; (2) Peter Cupo; (3) Michael O’Brien; and (4) Jim
Grazioli. 1

(Compl. [Doc. No. 1] ¶¶ 9-12.)

In the complaint, Plaintiff asserts the following six
counts: (1) Count I for alleged violations of Title VII; (2)
Count II for race discrimination in violation of the New Jersey

1

The numbered paragraphs of Plaintiff’s complaint name only
these four Defendants. However, the caption of Plaintiff’s
complaint appears to also name the State of New Jersey and the
Superior Court of New Jersey as Defendants. (Compl. 1.) In
the motion to dismiss, the Office of the Attorney General of
the State of New Jersey asserts that it represents the
following Defendants: the State of New Jersey, State of New
Jersey Judiciary, Superior Co12urt of New Jersey – Camden
Vicinage, Michael O’Brien, James Grazioli, and Peter Cupo.
These inconsistencies appear to be the result of Plaintiff’s
attempt to sue her employer, the Superior Court of New Jersey –
Camden Vicinage. To the extent that she improperly named any
Defendants or named too many Defendants, the Court resolves the
issue infra and will permit Plaintiff to amend the complaint to
name the proper Defendants.
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Law Against Discrimination (“NJLAD”); (3) Count III for purported
“malicious acts”; (4) Count IV for deprivation of her Fourteenth
Amendment rights in violation of Section 1983; (5) Count V for
“Eq[ua]l Protection”

similarly asserting that Defendants were

motivated by racial animus and deprived Plaintiff of her rights
to equal protection under the laws in violation of Section 1983;
and Count VI for intentional infliction of emotional distress.
The claims asserted in Plaintiff’s pro se complaint
apparently arise from her involvement in a separate Title VII
action brought in 2006 by Plaintiff’s former co-worker, Flavia
Stoval, against three of the same Defendants Plaintiff sued here,
including the State of New Jersey Judiciary, Peter Cupo, and
Michael O’Brien.

That case, captioned Flavia Stoval v. State of

New Jersey Judiciary, et al., Docket No. 1:06-cv-05683-RMB-JS,
(hereinafter, “the Stoval action”), similarly alleged claims for
Title VII violations, race discrimination under the NJLAD,
“malicious acts”, deprivation of Stoval’s constitutional right to
equal protection of the laws pursuant to Section 1983, and
intentional infliction of emotional distress.
Plaintiff alleges that her involvement with respect to the
Stoval action consisted of Plaintiff informing an EEOO
Investigator from the Administrative Office of the Courts that

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Defendant Peter Cupo made statements constituting emotional and
verbal abuse to Flavia Stovall in approximately 2003. (Compl. ¶
17.)

Plaintiff also alleges that she spoke with an investigator

from the Philadelphia District Office of the EEOC regarding the
complaint that Ms. Stovall had filed against Defendants Peter
Cupo, Michael O’Brien, and non-defendant, Jeffery Weisemen
sometime in 2007, noting that she directly observed instances of
discrimination against Ms. Stovall by management.

(Id. ¶ 18.)

Plaintiff contends that as a result of her involvement in the
Stovall action, she was later retaliated against by Defendants,
and further contends that Defendants discriminated against her
based on her race, age, and gender.

(Id. ¶¶ 36, 40, 44.)

III. DISCUSSION
A. A.

Claims Remaining At Issue

Defendants now seek to dismiss Plaintiff’s complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction and 12(b)(6) for failure to state a
claim upon which relief can be granted.

At the time Defendants

filed the pending motion to dismiss, Plaintiff was still
proceeding pro se in this action.

Plaintiff thereafter sought

and obtained a thirty-day extension of time to file opposition to

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the motion to dismiss.
2013.)

(Letter Order [Doc. No. 9] 1, Jan. 17.

Approximately ten days later, Plaintiff was able to

retain counsel to represent her in this matter, and F. Michael
Daily, Jr., Esquire, entered his appearance on behalf of
Plaintiff prior to the opposition deadline for the pending
motion.

(Notice of Appearance [Doc. No. 10] 1.)

Subsequently,

Mr. Daily filed a brief in opposition to the motion to dismiss on
behalf of Plaintiff.

(See generally Br. of Pl. Lisa S. Bean in

Opp’n to Mot. to Dismiss [Doc. No. 11] (hereinafter, “Pl.’s
Opp’n”), 1-15.)
Proceeding with the benefit of counsel at this stage of the
case, Plaintiff’s opposition brief significantly narrows the
claims still at issue.

In her opposition, Plaintiff now

acknowledges that at the time she filed her complaint, she “was
unfamiliar with Eleventh Amendment Immunity which clearly bars
her claims under state law and § Section 1983 against the arm of
the state that employs her.”

(Pl.’s Opp’n 1.)

Accordingly,

Plaintiff does not oppose the entry of an order dismissing Counts
II, III, IV, V, and VI against the State of New Jersey Judiciary,
Camden Vicinage, Superior Court of New Jersey.

(Id.)

For

similar reasons, Plaintiff also does not oppose the entry of an
order dismissing those claims in the complaint brought against

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state employees in their “official capacities.”

(Id.)

With

respect to Plaintiff’s Title VII claims set forth in Count I,
Plaintiff admits that she “failed to appreciate that Title VII
creates a cause of action against employers and not the employees
whose actions or decisions result in the violations.”

(Id.)

Therefore, Plaintiff does not object to the entry of an order
dismissing Count I against any of the individual Defendants in
any capacity.

(Id.)

Plaintiff further concedes that she has not, and cannot,
make any factual assertions against Defendant James Grazioli, and
that an “order should be entered dismissing the entire case” as
to Mr. Grazioli.

(Id.)

To the extent Count VI of the complaint

purported to bring a claim for intentional infliction of
emotional distress, Plaintiff recognizes now that her complaint
“failed to set forth sufficient facts to establish the required
degree of egregious conduct to permit a recovery under this cause
of action.”

(Id. at 1-2.)

On that basis, Plaintiff does not

oppose the entry of an order dismissing Count VI.

Finally,

Plaintiff does not object to the dismissal of Count III for
“malicious acts”, acknowledging that this purported Count “is
actually an averment that the acts of the employer’s supervisors
were intentional and wilful as opposed to the statement of an

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independent cause of action.”

(Id. at 2.)

After making these concessions, Plaintiff asserts that the
following two claims should not be dismissed and should proceed
in this case: (1) Count I against the State for alleged
violations of Title VII; and (2) Counts IV and V against the
individual Defendants, Peter Cupo and Michael O’Brien, in their
individual capacities asserting a violation of Section 1983 for
allegedly depriving Plaintiff of her constitutional right of
equal protection under the laws. 2
B.

Standard of Law Governing Motions to Dismiss

Defendants seek to dismiss Plaintiff’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1).

A motion to dismiss

pursuant to Rule 12(b)(1) attacks the existence of subject matter
jurisdiction in fact, Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977), while a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) considers
whether the complaint has failed to state a claim upon which
relief can be granted.
Cir. 2005).

Evancho v. Fisher, 423 F.3d 347, 351 (3d

When considering a facial attack under Rule 12(b)(1)

2

With respect to Counts IV and V of the original complaint,
Plaintiff’s opposition indicates that her Section 1983 Count and
her Equal Protection Count “should be merged” into a single
claim. (Id. at 2.)
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or a motion to dismiss for failure to state a claim under Rule
12(b)(6) the standard is the same: the court must consider the
allegations of the complaint as true.

Mortensen, 549 F.2d at

891.
Defendants also seek dismissal of Plaintiff’s complaint
under Rule 12(b)(6).

When considering a motion to dismiss a

complaint for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a
court must accept all well-pleaded allegations in the complaint
as true and view them in the light most favorable to the
plaintiff.

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

It is well settled that a pleading is sufficient if it contains
“a short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1953 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions[.]’”) (citation omitted).

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The Third Circuit has

instructed district courts to conduct a two-part analysis in
deciding a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009).
First, a district court “must accept all of the complaint’s
well-pleaded facts as true, but may disregard any legal
conclusions.”

Fowler, 578 F.3d at 210-11 (citing Iqbal, 129 S.

Ct. at 1949).

Second, a district court must “determine whether

the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’”
F.3d at 211 (citing Iqbal, 129 S. Ct. at 1950).

Fowler, 578

“[A] complaint

must do more than allege the plaintiff’s entitlement to relief.”
Fowler, 578 F.3d at 211; see also Phillips v. Cnty. of Allegheny,
515 F.3d 224, 234 (3d Cir. 2008) (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating ... a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556).
A court need not credit “‘bald assertions’” or “‘legal
conclusions’” in a complaint when deciding a motion to dismiss.

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In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30
(3d Cir. 1997).

The defendant has the burden of demonstrating

that no claim has been presented.

Hedges v. United States, 404

F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
However, “if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245; see also Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004) (“We have held that even when a plaintiff
does not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile.”);
Burrell v. DFS Servs., LLC, 753 F. Supp. 2d 438, 444 (D.N.J. 2010)
(“When a claim is dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6), leave to amend and reassert that claim is
ordinarily granted. ... A claim may be dismissed with prejudice,
however, if amending the complaint would be futile.”) (citation
omitted).

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IV.

ANALYSIS
At the outset, the Court must address some observations

regarding the nature of Plaintiff’s pro se complaint and the
manner in which it was prepared.

The Court has undergone a

thorough review of Plaintiff’s pro se complaint in this case and
compared it to the pro se complaint filed by Flavia Stoval, the
plaintiff in the Stoval action.

Based on the Court’s comparison

of these documents, it is readily apparent that the two
complaints are largely identical in form and substance.
The Court recognizes that in all likelihood, Plaintiff, who
is untrained in the law and the drafting of sophisticated legal
documents, utilized a copy of the complaint in the Stoval action
as a template for the complaint she drafted and filed in this
case.

In drafting her complaint, Plaintiff seems to have

substituted in the names of the individuals involved here and the
factual assertions she believes to be important to her specific
case.

The difficulty, however, is Plaintiff’s choice of the

Stoval complaint as her template.

In the Stoval action, the

Honorable Renee M. Bumb, United States District Judge, described
the pro se complaint filed by Flavia Stoval as “poorly pled,”
explaining that it was “a long and extraordinarily complex
complaint, which blurred relevant and irrelevant facts, as well

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as cognizable and invalid causes of action.”
No. 62] in Stoval action, 2 n.1.)

(Mem. & Order [Doc.

Judge Bumb also pointed out

that after Flavia Stoval retained counsel, her attorney never
sought leave to amend the poorly pled complaint leading to a
great deal of confusion among the parties regarding Stoval’s
case.

(Id.)

Judge Bumb observed that the parties “lacked a

clear understanding of not only what Plaintiff’s claims, in fact,
were, but also of the legal and factual issues bearing upon
Plaintiff’s claims.”

(Id. at 2.)

As a consequence of the poorly pled complaint and the
confusion it caused, Judge Bumb found that the parties’ briefing
at the summary judgment stage was “disorderly, piecemeal, and
abstruse[.]”

(Id.)

This caused the Stoval court to expend

“numerous hours parsing” the summary judgment briefs and required
the court to hold a lengthy oral argument at which time the court
“was surprised” to learn that the parties propounded yet
different legal theories than those argued in the briefs.

(Id.)

Thus, as Judge Bumb noted, “the critical prerequisite to summary
judgment -– clarity --

[was] inescapably absent.”

(Id. at 4)

(emphasis in original).
Much like the complaint in Stoval, Plaintiff’s pro se
complaint in this case blurs together relevant and irrelevant

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facts and attempts to assert some potentially cognizable claims
while simultaneously asserting a number of invalid claims.
Plaintiff’s newly retained counsel, Mr. Daily, subsequently
attempted to minimize any confusion and disorder caused by the
original complaint by filing an opposition on Plaintiff’s behalf
with appropriately conceded that many of Plaintiff’s original
claims should be dismissed.

However, even in light of the

substantial concessions Plaintiff made with the assistance of
counsel, the Court remains genuinely concerned that proceeding in
this action with Plaintiff’s pro se complaint as the operative
complaint could lead the Court and the parties to encounter
difficulties like those presented in the Stoval action given the
significant similarity between the complaints.
Moreover, Federal Rule of Civil Procedure 15(a) provides
that leave to amend a complaint should be “freely give[n] ...
when justice so requires.”

FED. R. CIV. P. 15(a)(2).

Additionally, the Third Circuit has instructed that in civil
rights cases, “if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245; see also Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004) (“We have held that even when a plaintiff

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does not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile.”).
Third Circuit precedent “supports the notion that in civil rights
cases district courts must offer amendment--irrespective of
whether it is requested--when dismissing a case for failure to
state a claim unless doing so would be inequitable or futile[.]”
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007).
As the Third Circuit has also pointed out, “[a]n amended
complaint supersedes the original version in providing the
blueprint for the future course of a lawsuit.”
Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002).

Snyder v. Pascack
Therefore, to

streamline this litigation and to simplify and expedite the
discovery process and any further dispositive motion practice,
the Court finds that the appropriate course of action in this
civil rights action is to permit Plaintiff to file, through her
attorney, an amended complaint with respect to her two remaining
claims brought under Title VII and Section 1983.

At this early

stage of the litigation, there is no prejudice to Defendants to
permit amendment of the complaint because Defendants have not yet
answered, the parties have not participated in an initial

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scheduling conference before the Magistrate Judge in this case,
nor have the parties engaged in any discovery to date.

Rather,

amending the complaint now -- before any significant process has
been made and with the benefit and assistance of Plaintiff’s
attorney – will allow all parties to this action to proceed under
a properly pled complaint that more fully sets forth the factual
assertions relevant only to Plaintiff’s remaining claims.
Amendment now will conserve the resources of both the parties and
the Court by providing all involved with a clear, precise
blueprint for the future course of this litigation.

Moreover,

the Court finds that based on the additionally facts set forth in
Plaintiff’s opposition and the substantive arguments presented by
Mr. Daily, permitting amendment does not appear to be futile at
this time.

See Evans v. Potter, No. 1:10-CV-2557, 2011 WL

3320819, at *6 (M.D. Pa. July 15, 2011) (recommending that
defendants’ Rule 12(b)(6) motion be granted but also recommending
that plaintiff be permitted, through counsel to amend his
complaint to state a claim upon which relief may be granted where
plaintiff originally filed his complaint pro se and subsequently
retained counsel after defendants had moved to dismiss).

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V.

CONCLUSION
For the foregoing reasons, Defendants motion to dismiss will

be granted in part and denied without prejudice in part.
Plaintiff, however, will be permitted to file an amended
complaint within twenty (20) days of the date of this Opinion.
An Order consistent with this Opinion will be entered.

Dated: September 26, 2013
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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