SCHULSINGER v. PERCHETTI et al
Filing
17
OPINION. Signed by Judge Noel L. Hillman on 2/8/2016. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWARD SCHULSINGER,
Civil No. 15-5752 (NLH/AMD)
Plaintiff,
OPINION
v.
JOSEPH N. PERCHETTI, PATRICIA
MARTIN, PAUL D.J. ARNETT,
and FRANK T. STEWART,
Defendants.
APPEARANCES:
EDWARD SCHULSINGER
13 IVY LANE
CHERRY HILL, NJ 08002
Appearing pro se
IRENE E. DOWDY
OFFICE OF THE US ATTORNEY
401 MARKET STREET
FOURTH FLOOR
P.O. BOX 2098
CAMDEN, NJ 08101
On behalf of defendants
HILLMAN, District Judge
Presently before the Court is the motion of defendants to
dismiss plaintiff’s complaint, or, in the alternative, for a
more definite statement.
For the reasons expressed below,
plaintiff’s complaint will be dismissed, but plaintiff will be
afforded thirty days to file an amended complaint.
BACKGROUND
Plaintiff, Edward Schulsinger, is a former member of the
Coast Guard Auxiliary.
The Auxiliary is a nonmilitary
organization administered by the Commandant of the United States
Coast Guard and 14 U.S.C. § 821.
Plaintiff’s case was removed
from the Superior Court of New Jersey, Law Division, Camden
County, Special Civil Part to this Court under 28 U.S.C. §§
1442(a)(l), 2679(d)(2) by the four named defendants: Paul D.J.
Arnett, a Coast Guard Officer and former Director of the Coast
Guard Auxiliary (North) for the Fifth Coast Guard District,
Frank T. Stewart, Auxiliary member, Patricia Martin, Auxiliary
member, and Joseph N. Perchetti, Auxiliary member.
Defendants
are deemed to be federal employees pursuant to 14 U.S.C. §
832a(b) and to be persons acting under an officer of the United
States or agency thereof pursuant to 14 U.S.C. § 832a(c).
Plaintiff’s complaint is a form provided by the state court
Special Civil Part, along with an additional page that states:
THE UNITED STATES COAST GUARD AUXILIARY (TO BE KNOWN AS THE
U.S.C.G.A.) IS A NONMILITARY CITIZEN ORGANIZATION WHICH
ACT'S AS A CLUB BY COLLECTING DUES EACH YEAR. THE
U.S.C.G.A. IS ENACTED BY CONGRESS TO WORK WITH THE UNITED
STATES COAST GUARD (TO BE KNOWN AS U.S.C.G.)
THIS CIVIL ACTION COMPLAINT IS BASED ON THESE INFRACTION'S:
FRAUD DEFAMATION
GROSSE INCOMPETANCE
CONSPIRACY
LACK OF DUE PROCESS RULE VIOLATION
DENIAL OF CIVIL RIGHTS
INCIDENT REPORT'S FALSE IN NATURE
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ALL OF THESE INFRACTIONS ARE BACKED BY EVIDENCE READY TO BE
SUBMITTED IN A REAL COURT WITH A REAL JUDGE.
(Docket No. 1-2 at 3.)
The complaint demands $15,000 from defendants, plus
interest and $118.00 for the costs of suing.
(Docket No. 1-2 at
2.)
Defendants have moved to dismiss plaintiff’s complaint, or
in the alternative, for a more definite statement.
Plaintiff
has opposed defendants’ motion.
DISCUSSION
A.
Jurisdiction
The plaintiff filed suit against federal employees who are
persons acting under an officer of the United States or agency,
14 U.S.C. § 832a(b), (c).
Accordingly, this Court exercises
subject matter jurisdiction over this action, which was removed
from state court, pursuant to 28 U.S.C. §§ 1442(a)(1) and
2679(d)(2).
B.
Motion to Dismiss Standard
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.
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Evancho v. Fisher, 423 F.3d 347, 351 (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).
Under the
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
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
claim.’”
Bell Atlantic 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, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
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the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
Id.;
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that 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”).
A court need not credit either “bald
assertions” or “legal conclusions” in a complaint when deciding
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a motion to dismiss.
In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1429-30 (3d Cir. 1997).
The defendant bears the
burden of showing that no claim has been presented.
Hedges v.
U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.
Fed. R. Civ. P. 12(b).
Analysis
Defendants have moved to dismiss plaintiff’s complaint
because it fails to meet the proper pleading standards.
Defendants argue that plaintiff’s claims apparently concern some
sort of dissatisfaction with the Coast Guard Auxiliary, but the
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complaint lacks any facts to explain the who, what, where, when
and why of plaintiff’s dissatisfaction.
The Court agrees with
defendants that plaintiff’s complaint wholly fails to comply
with Twombly/Iqbal and Federal Civil Procedure Rule 8(a).
Under the liberal federal pleading rules, the pleadings are
required to give the defendants fair notice of what plaintiff’s
claim is and the grounds upon which it rests.
Welcome Ctr., 466 U.S. at 149-50 n.3.
Baldwin County
Even though pro se
complaints are to be construed liberally, Estelle v. Gamble, 429
U.S. 97, 107 (1976), pro se litigants “must still plead the
essential elements of [their] claim and [are] not excused from
conforming to the standard rules of civil procedure,” McNeil v.
United States, 508 U.S. 106, 113 (1993).
Plaintiff has failed
to meet this basic element.
In response to defendants’ motion, plaintiff filed a 27page opposition.
Plaintiff first points out that his complaint
was filed in small claims court and he did not intend for his
claims to become a “federal case.”
Plaintiff’s opposition also
contains documents concerning plaintiff’s disenrollment from the
Auxiliary, and plaintiff’s papers explain in detail how each of
his claims against defendants arise out of his disenrollment.
The problem with plaintiff’s response is that
insufficiencies in plaintiff’s claims in his complaint cannot be
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cured by a brief or other documents submitted in opposition to
defendants’ motion.
The mechanism for curing pleading
deficiencies is to file an amended complaint, or a formal motion
for leave to file an amended complaint, pursuant to Fed. R. Civ.
P. 15(a).
This is because the amended complaint supersedes the
original version in providing the blueprint for the future
course of a lawsuit.
See Snyder v. Pascack Valley Hospital, 303
F.3d 271, 276 (3d Cir. 2002).
The Court is mindful that plaintiff filed his complaint in
state court using a form complaint provided by the small claims
court, and that plaintiff is appearing pro se.
The Court also
recognizes that to the extent plaintiff’s claims implicate civil
rights violations, 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).
Relatedly, defendants, most likely understanding these
considerations, have alternatively asked that plaintiff file a
more definite statement pursuant to Fed. R. Civ. P. 12(e), 1 which
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Fed. R. Civ. P. 12(e) provides, “A party may move for a more
definite statement of a pleading to which a responsive pleading
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effectively is a request by defendants for an amended complaint.
Accordingly, the Court will dismiss plaintiff’s current
complaint, but provide plaintiff with 30 days to file an amended
complaint that follows the parameters of Rule 8(a) and the
Twombly/Iqbal pleading standard.
If plaintiff does so,
defendants may answer the complaint or otherwise respond as
provided under the Rules.
If plaintiff fails to file an amended
complaint within 30 days, the action will be closed.
An appropriate Order will be entered.
Date:
February 8, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
is allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response. The motion must be made
before filing a responsive pleading and must point out the
defects complained of and the details desired. If the court
orders a more definite statement and the order is not obeyed
within 14 days after notice of the order or within the time the
court sets, the court may strike the pleading or issue any other
appropriate order.”
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