AIELLOS et al v. ZISA et al

Filing 47

OPINION re 3 MOTION to Dismiss Plaintiffs' Complaint filed by TOMAS PADILLA. Signed by Judge William J. Martini on 10/20/09. (gh, )

UNITED STATES DISTRICT COURT D I S T R IC T OF NEW JERSEY

T H O M A S AIELLOS, JOSEPH INGLIMA, DO NALD PIERCE, SCO TT SYBEL, A N T H O N Y DUARDO, RALPH CAVALLO, a n d VINCENT RIOTTO, Plaintiffs, v. C H I E F C. KENNETH ZISA, JOSEPH ZISA, T O M A S PADILLA, KEVIN TOOMEY, A N T H O N Y TREZZA, PHILLIP CARROLL, C A P T A IN THOMAS SALCEDO, CITY OF H A C K E N S A C K , and SERGEANT TIMOTHY LLOYD, Defendants.

C iv il Action Number: 09-3076

O P IN IO N H O N . WILLIAM J. MARTINI

MEMORANDUM OPINION1 I. IN T R O D U C T IO N O n June 24, 2009, Plaintiffs, current and former officers of the Hackensack Police D e p a rtm e n t ("HPD"), filed an eleven-count civil rights action against Defendant HPD Chief

For the convenience of the reader of this document in electronic format, hyperlinks to the Court's record and to authority cited herein may be inserted. No endorsement of any p ro v id e r of electronic or other resources is intended by the Court's practice of using h yp e r l i n k s .

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of Police, C. Kenneth Zisa, and others, alleging that the Defendants violated their c o n s titu tio n a l rights. (Doc. No. 1.) On August 3, 2009, Plaintiffs filed a more detailed tw e lv e -c o u n t Amended Complaint, (Doc. No. 9), which has since become the operative c o m p la in t by order of the Court, (Doc. No. 19). Presently before the Court is Defendant Tomas Padilla's motion to dismiss (the " M o tio n " ), (Doc. No. 3), which although filed prior to the Amended Complaint, addresses th e Amended Complaint through supplemental briefing. Padilla's motion has been fully b rie f e d . See Memorandum of Law in Support of Defendant, Tomas Padilla's, Motion to D is m iss Pursuant to F.R.C.P. 12(b)(6) ("Opening Br."), (Doc. No. 3-5); Memorandum of L a w in Opposition to Defendant Padilla's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) (" O p p 'n Br."), (Doc. No. 10); Tomas Padilla Reply Brief ("Reply Br."), (Doc. No. 18); see a ls o Supplemental Opening Brief ("Supp. Opening Br."), (Doc. No. 26); Supplemental O p p o s itio n Brief (Supp. Opp'n Br."), (Doc. No. 29). Of the twelve counts in the Amended C o m p l a in t , only four are litigated in the Motion. They include: (A) Count I­the 42 U.S.C. § 1983 (the "Section 1983") claim; (B) Count II­the Racketeer Influenced Corrupt O rg a n iz a tio n s Act ("RICO") claim; (C) Count IV­the conspiracy claim; and (D) Count XII­ th e Misappropriation of Funds and Breach of Fiduciary Relationship claim. Having considered the parties' filings (including supplemental filings addressing the A m e n d e d Complaint), federal and state constitutional and statutory law, case law, and p e rs u a s iv e scholarly authority, the Court, for the reasons elaborated below, will GRANT in

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part, and DENY in part, Defendant Padilla's motion to dismiss. Specifically, Counts II and X II are dismissed against Padilla; the motion is DENIED in all other respects.

II.

F A C T U A L BACKGROUND ALLEGED IN THE AMENDED COMPLAINT T h e gravamen of the Amended Complaint is that the Hackensack Chief of Police,

D e f e n d a n t Zisa, in conjunction with Defendant Captain Padilla, (the movant of the Motion), a n d other Defendants engaged in a pattern of extortion, against other HPD officers, i.e., P la in tif f s , seeking, among other things, political donations to further Zisa and Padilla's p o litic a l career and the political career of those allied with them, including candidates for o f f ic e within the Policemen's Benevolent Association ("PBA") of Hackensack. It is further a l le g e d that those who were not allied with Zisa and Padilla, including those officers who re f u s e d to donate to their political campaigns, were subject to retaliation and threats of re ta lia tio n in violation of Plaintiffs' First Amendment free speech and freedom of association rig h ts . Thereafter, Plaintiffs filed a complaint, subsequently superseded by the Amended C o m p la in t, and Defendant Padilla brought the instant motion to dismiss.

III.

S T A N D A R D OF REVIEW T h e Defendant's motion to dismiss is brought pursuant to the provisions of Fed. R.

C iv . P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if th e plaintiff fails to state a claim upon which relief can be granted. The moving party bears

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the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 7 5 0 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in th e complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief th a t is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (a b ro g a tin g "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1 9 5 7 )). The facts alleged must be sufficient to "raise a right to relief above the speculative le v e l." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a re a s o n a b le expectation that discovery will reveal evidence of" necessary elements of the p la i n t if f 's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, th e plaintiff must "provide the grounds of his entitlement to relief," which "requires more th a n labels and conclusions, and a formulaic recitation of the elements of a cause of action w ill not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and q u o ta tio n s marks omitted) (quoting Twombly, 550 U.S. at 555). In considering a motion to dismiss, the court generally relies on the complaint, a tta c h e d exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d C ir. 2007). The court may also consider "undisputedly authentic document[s] that a d e f e n d a n t attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on th e [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1 1 9 2 , 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the c o m p la in t and whose authenticity no party questions, but which are not physically attached

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to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 5 6 0 (3d Cir. 2002). However, the court may not rely on other parts of the record in d e te rm in i n g a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1 2 5 0 , 1261 (3d Cir. 1994).

IV .

A N A L Y S IS T h e motion argues, and Plaintiffs do not contest, that only four of the counts in the

A m e n d e d Complaint, i.e., (A) Count I­the Section 1983 claim; (B) Count II­the RICO claim; (C ) Count IV­the conspiracy claim; and (D) Count XII­the Misappropriation of Funds and B re a c h of Fiduciary Relationship claim, apply to Defendant Padilla, and it further argues, on a variety of grounds, that each of these four counts against Defendant Padilla should be d is m is s e d for failure to state a claim. This opinion addresses each of Defendant Padilla's c o n te n tio n s in turn. At the outset, however, the Court notes that Plaintiffs' Supplemental O p p o s itio n Brief concedes that Count XII does not apply to Padilla,2 and, therefore, the Court n e e d not reach the merits of Defendant's argument and will dismiss this count in regard to P a d illa . A. C O U N T I­THE SECTION 1983 CLAIM

Count I of the Amended Complaint alleges that Defendants, including Defendant

Plaintiffs' concession to the effect that "Defendant Padilla is not named as a D e f e n d a n t in Count XII," Supp. Opp'n Br. 9, is puzzling. The Amended Complaint expressly n a m e s Padilla as a defendant. See Amended Complaint 46. (Doc. No. 9.) 5

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Padilla, violated Plaintiffs' First Amendment free speech and freedom of association rights, a s secured by the Fourteenth Amendment and by Section 1983. (Doc. No. 9.) Defendant has c h a lle n g e d the sufficiency of the Amended Complaint's Section 1983 claim on a number of g ro u n d s . See Supp. Opening Br. 4-8, (Doc. No. 26) (incorporating by reference Opening Br. 1 0 -1 4 , (Doc. No. 3-5)). 1. T h e Free Speech Claim

T h e parties agree that Plaintiffs' free speech claim is governed by the PickeringC o n n ic k test.3 See Opening Br. 10, (Doc. No. 3-5); Opp'n Br. 9, (Doc. No. 10). As this Court h a s explained: Section 1983 provides for a cause of action when a state actor retaliates a g a in s t an individual for participating or engaging in conduct protected by the F irs t Amendment. To state a First Amendment retaliation claim, the plaintiff m u s t allege that (1) the plaintiff's conduct was protected by the First A m e n d m e n t because it addressed a matter of public concern, (2) the plaintiff w a s retaliated against, and (3) the protected conduct was a substantial or m o tiv a tin g factor in the alleged retaliation. See Ober v. Brown, 105 Fed. Appx. 3 4 5 , 346-47 (3d Cir. 2004) (explaining that to prevail on a First Amendment re ta lia tio n claim the plaintiff must establish that (1) he or she engaged in p ro te c te d activity, (2) the defendants retaliated in response to the activity, and (3 ) the defendants could not rebut the claim by showing that they would have ta k e n the same action in the absence of the protected speech). The employer c a n rebut the plaintiff's claim by demonstrating that it would have made the s a m e decision absent the protected conduct. A plaintiff's conduct is protected b y the First Amendment when it is about a matter of public concern and the e m p lo ye r does not have a justification for treating the employee differently th a n other members of the general public. T h e Court determines as a matter of law if an activity constitutes

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See Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563

(1 9 6 8 ). 6

protected speech. However, whether the retaliatory action of the defendant re a c h e d the threshold of actionability under § 1983 is a factual question for the trie r of fact. An employment action is considered adverse, for the purposes of d e te rm in in g unlawful retaliation, if it is likely to chill a person of ordinary f irm n e s s in the exercise of their First Amendment rights. M y e r s v. County of Somerset, 515 F. Supp. 2d 492, 500-01 (D.N.J. 2007) (citations and q u o ta tio n marks omitted); Opening Br. 10 (citing Myers approvingly), (Doc. No. 3-5); Opp'n B r. 10 (same), (Doc. No. 10). Defendant Padilla argues that the allegations of the Complaint only connect Padilla to the alleged wrongs through formulaic, blanket, and conclusory allegations, i.e., that " P a d illa `infringed on [Plaintiffs'] First Amendment rights,'" Opening Br. 12 (apparently in te n d e d to paraphrase or quote the Complaint), (Doc. No. 3-5), and, more specifically, fail to properly allege the second element of the three-part test elaborated above. In other words, P a d illa argues that Plaintiffs' allegations do not amount even to a prima facie case because: the adverse actions of which, [Plaintiffs] complain, each and every one of th e m , were actions of Plaintiff's [sic] employer, not [Defendant] Padilla and n o w h e re in 55 pages do Plaintiffs allege otherwise. As a practical matter, c o m m o n sense, as well as constitutional law ... Defendant [Padilla] must play s o m e role in the violations which Plaintiffs claim.... Padilla ... has not been a lle g e d to have taken any affirmative action vis-a-vis the Plaintiffs. Id . at 11-12, (Doc. No. 3-5) (emphasis in the original). Plaintiffs respond that their Amended Complaint alleges specific well-pled facts w h ic h , if proven, would establish that Padilla ­ himself ­ took or threatened to take re ta lia to ry adverse actions. The Court agrees. For example, the Amended Complaint states: " A f te r the PBA Delegate election, Defendant Padilla threatened [Plaintiff] Inglima with 7

unwarranted [work-related] disciplinary action by stating to Inglima that [Inglima] would be c lo s e ly watched and observed and would be disciplined if [Inglima] failed to wear his hat or c o m m it[ te d ] any minor infractions." Amend. Compl. ¶ 80, (Doc. No. 9); Opp'n Br. 7 (same). L ik e w is e , the Amended Complaint states: "Padilla also approached Plaintiff Donald Pierce d u rin g this time period and asked Pierce how could Padilla get rid of Plaintiff Aiellos." A m e n d e d Complaint ¶ 56 (emphasis added), (Doc. No. 9); Opp'n Br. 6 (same). Such a lle g a tio n s cannot by any means be reasonably characterized as "conclusory" or a mere " f o rm u la ic " recitation of the statutory elements of a Section 1983 claim; moreover, these a lle g a tio n s can fairly be understood to constitute threats of wrongful discharge. S e c tio n 1983 will protect a public employee not only against actual retaliation in the w o rk p la c e by supervisors taken in regard to the employee's exercise of protected First A m e n d m e n t rights, but it will also protect the employee against threats to retaliate. See, e.g., S u a r e z Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000) (indicating that a threat ta k e n in retaliation for the exercise of protected First Amendment free speech rights is a c tio n a b le under Section 1983); see also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 2 0 8 (3d Cir. 2001) (noting in a Section 1983 suit alleging a First Amendment free speech v io la tio n that "a supervisor's statement `sleep with me or you're fired' may be proscribed not o n the ground of any expressive idea that the statement communicates, but rather because it f a c ilita te s the threat of discriminatory conduct.") (emphasis added), rev'd, 77 F. Supp. 2d 6 2 1 (M.D. Pa. 1999); McClintock v. Eichelberger, 169 F.3d 812, 819 (3d Cir. 1999)

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(explaining that under Supreme Court precedent the "threat of loss" of government e m p lo ym e n t or a government contract in retaliation for the exercise of protected First A m e n d m e n t free expression rights is actionable under Section 1983) (emphasis added).4 P la in tif f s ' Amended Complaint, which makes allegations of threatened retaliation in regard to the exercise of First Amendment rights, seems to meet the legal standard as elaborated u p o n by Third Circuit case law. Not only does Defendant Padilla argue that the retaliatory actions alleged by Plaintiffs w e re not committed by Padilla, but Padilla also argues that he, apparently as a matter of law, h a d "no authority to fire, demote, or otherwise take any retaliatory action against Plaintiffs." S u p p . Opening Br. 5, (Doc. No. 26). Padilla however cites no law in support of his legal p o s itio n . Moreover, even if it were a correct statement of what was the limit of Padilla's la w f u l authority over Plaintiffs, a Section 1983 claim may be brought against a supervisor, e .g ., Captain Padilla, in regard to retaliatory conduct connected to an underling's free speech a n d free association rights even if the supervisor has no formal power to discharge the e m p lo ye e if the supervisor's conduct could constructively discharge the employee in

See also Elrod v. Burns, 427 U.S. 347, 359 (1976) (plurality opinion) ("The threat o f dismissal for failure to provide [support for the favored political party] unquestionably in h ib its protected belief and association, and dismissal for failure to provide support only p e n a liz e s its exercise."); 427 U.S. at 375 (Stewart, J., concurring in judgment) ("The single s u b s ta n tiv e question involved in this case is whether a nonpolicymaking, nonconfidential g o v e rn m e n t employee can be discharged or threatened with discharge from a job that he is s a tis f a c to rily performing upon the sole ground of his political beliefs. I agree with the p lu ra lity that he cannot."). 9

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connection with disciplinary charges or proceedings initiated by the supervisor. See Hill v. B o ro u g h of Kutztown, 455 F.3d 225, 240 (3d Cir. 2006) (holding in adjudicating a First A m e n d m e n t claim that "[a] supervisor who lacks the power to terminate a subordinate's e m p lo ym e n t may nonetheless abuse his power with respect to that subordinate, and may even c o n s tru c tiv e ly discharge the subordinate, provided he (the supervisor) exercises some power o v e r the employee") (citing Bonenberger v. Plymouth Twp., 132 F.3d 20, 23-25 (3d Cir. 1 9 9 7 )). This is what Plaintiffs allege here: "Defendant Padilla is a Captain with supervisory d u tie s and authority to institute disciplinary action," Amend. Compl. ¶ 19, (Doc. No. 9); S u p p . Opp'n Br. 1 (same); "Defendant Padilla threatened [Plaintiff] Inglima with u n w a rra n te d [work-related] disciplinary action by stating to Inglima that [Inglima] would be c lo s e ly watched and observed and would be disciplined if [Inglima] failed to wear his hat or c o m m it[ te d ] any minor infractions," Amend. Compl. ¶ 80, (Doc. No. 9); Opp'n Br. 7 (same). It follows that to the extent Plaintiffs' allegations are understood as relating to wrongful th re a ts of discharge or constructive discharge founded on wrongful disciplinary action, P la in tif f s ' claim cannot be dismissed for being de minimis or trivial. See Supp. Opening Br. 5 , (Doc. No. 26). Indeed, protection against wrongful discharge is the core of the First A m e n d m e n t right at issue here. Cf. Elrod v. Burns, 427 U.S. 347, 359 (1976) (plurality o p in io n ) ("The threat of dismissal for failure to provide [support for the favored political p a rty] unquestionably inhibits protected belief and association, and dismissal for failure to

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provide support only penalizes its exercise.").5 F in a lly, in supplemental briefing, Padilla argues that Plaintiffs' allegations do not give rise to a First Amendment retaliation claim because "Plaintiffs' speech was not a matter of p u b lic concern," Supp. Opening Br. 7 (citing Gaj v. United States, 800 F.2d 64 (3d Cir. 1 9 8 6 )), (Doc. No. 26), in conformity with the first element of the three element test laid out in Myers v. County of Somerset, 515 F. Supp. 2d 492, 500-01 (D.N.J. 2007). In Gaj, the T h ird Circuit explained: In Connick v. Meyers, 461 U.S. 138, 103 S. Ct. 1684 (1983), the S u p re m e Court held that:

w h e n a public employee speaks not as a citizen upon matters of p u b lic concern, but instead as an employee upon matters only of p e rs o n a l interest, absent the most unusual circumstances, a f e d e ra l court is not the appropriate forum in which to review the w is d o m of a personnel decision taken by a public agency a lle g e d ly in reaction to the employee's behavior. Id . at 147, 103 S. Ct. at 1690. The Court stressed that a careful factual inquiry m u s t be made. "Whether an employee's speech addresses a matter of public c o n c e rn must be determined by the content, form, and context of a given s ta te m e n t, as revealed by the whole record." Id. at 147-48, 103 S. Ct. at 1690. G a j's complaints concerned the noise level and conveyor belt maintenance. W h ile in some instances such complaints might comprise criticisms of the s a f e ty policies of the Postal Service and therefore rise to the level of public

Defendant's citation to Benningfield v. City of Houston, 157 F.3d 369 (5th Cir. 1 9 9 8 ), is not convincing. In that case, the Fifth Circuit held that "mere accusations [i.e., v e rb a l criticism], without more, are not adverse employment actions" giving rise to a First A m e n d m e n t retaliation claim. Id. at 376. In the instant litigation, more than mere criticism is alleged; Plaintiffs allege that Padilla, who had supervisory authority over Plaintiffs, th re a te n e d to take wrongful disciplinary action. 11

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concern, that is not the situation here. Rather, Gaj was merely expressing h im s e lf as an employee dissatisfied with his own conditions of employment. H e stated in his affidavit: "These ... safety complaints were not made to protect th e interest of other employees but were made to protect myself." The record a s a whole reveals that Gaj "did not seek to inform the public that the [Postal S e rv ic e ] was not discharging its governmental responsibilities ... nor ... seek to bring to light actual or potential wrongdoing or breach of public tru st." Connick, 461 U.S. at 148, 103 S. Ct. at 1691. G a j, 800 F.2d at 67 (quoting Connick, 461 U.S. at 147). In other words, "[t]o sustain [their] b u rd e n , Plaintiffs must show that they spoke primarily in their roles as a citizen on a matter o f public concern, rather than as an employee addressing matters of only personal interest." S u p p . Opening Br. 7, (Doc. No. 26). The Court is of the view that the allegations of the A m e n d e d Complaint meet this standard. In Gaj, the plaintiff argued that retaliation arose in c o n s e q u e n c e of the exercise of First Amendment rights related to his personal workplace s a f e ty conditions. Not so here. In this litigation, Plaintiffs allege that Padilla and others re ta lia te d and threatened to retaliate in consequence of Plaintiffs' exercise of free speech and f re e d o m association rights related both to elections to public office and to elections within th e (private) Policemen's Benevolent Association of Hackensack. It may be that some (but n o t all) of the allegedly protected speech and association rights were exercised on g o v e rn m e n t premises, but if so, that is incidental to Plaintiffs' claim. The gravamen of the c la im is that Defendants (including Padilla) were attempting to coerce Plaintiffs (before-thef a c t6 ) and to punish or retaliate against Plaintiffs (after-the-fact7 ) in consequence of

See, e.g., Amend. Compl. ¶ 70 ("Padilla using his authority as a Captain, stated to n u m e ro u s police officers and supervisory officers within the HPD that they should vote for 12

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Plaintiffs' exercising their First Amendment rights. The location where the underlying speech o r association took place is irrelevant. It seems equally clear that the exercise of free speech a n d free association rights, relating to elections, are matters of public concern.8 Although s p e e c h relating to an election within the PBA does not fall precisely within the core of (p ro te c te d ) political speech, it is even further removed from the (unprotected) speech Gaj s o u g h t to protect: speech relating to personal workplace conditions. Elections to the PBA m ig h t very well be a matter of public concern in a way that Gaj's personal workplace c o n d itio n s are not. 2. T h e Freedom of Association Claim

T h e parties agree that the legal test to be applied to a freedom of association claim is f o u n d in the Elrod-Branti-Rutan trilogy.9 See Opening Br. 13, (Doc. No. 3-5); Opp'n Br. 16, (D o c . No. 10). Under this standard, to make a out a prima facie case, the plaintiff must show: (1 ) he was an employee of a public agency in a position that does not require political a f f ilia tio n ; (2) the employee maintained a political affiliation; and (3) that political affiliation

[ P B A candidate] Clouse [as a delegate] and intimated that if they supported Inglima they w o u ld be retaliated against."), (Doc. No. 9). See, e.g., Amend. Compl. ¶ 80 ("These statements were made [by Padilla] to in tim id a te the Plaintiff in retaliation for Plaintiff [sic] refusing to step down as a candidate f o r PBA delegate."), (Doc. No. 9).
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See Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir. 2004).

Elrod v. Burns, 427 U.S. 347, 359 (1976); Branti v. Finkel, 445 U.S. 507 (1980); R u ta n v. Republican Party of Ill., 497 U.S. 62 (1990). 13

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was a substantial or motivating factor in a retaliatory adverse employment decision by the g o v e rn m e n t. See Laskaris v. Thornburgh, 733 F.2d 260, 264-65 (3d Cir. 1984); see also O p e n in g Br. 13, (Doc. No. 3-5); Opp'n Br. 16, (Doc. No. 10). Padilla argues that the allegations fail in regard to the third element of the legal test d e s c rib e d above, i.e., "Plaintiffs do not even allege that Padilla engaged in a course of re ta lia to ry conduct or even that he was passively involved in some way." Opening Br. 14, (D o c . No. 3-5).1 0 Defendant's position on this point was already addressed in relation to P la in tif f s ' free speech claim. See Section IV[A][1], supra. For the reasons it was rejected in re g a rd to the free speech claim, it is also rejected in regard to the freedom of association c la im . Defendant further argues that dismissal is appropriate because "Plaintiffs make no m e n tio n whatsoever in their Complaint that any of them, either collectively or as individuals, m a in ta in e d any affiliation with any particular political party and/or that adverse employment a c tio n was taken against any of them due to that affiliation." Opening Br. 13, (Doc. No. 3-5). T o the extent that Padilla is arguing that affiliation with a "political party" is a precondition o f a freedom of association claim, his position is rejected as a matter of law. It is true that any n u m b e r of freedom of association cases speak to party affiliation, but that is because on the f a c ts of those specific cases, the plaintiff was himself or herself a party member and

Defendant Padilla's papers are not clear on this point. It is possible that in light of th e Amended Complaint, Padilla no longer maintains this position. Nevertheless, in an a b u n d a n c e of caution, the Court addresses this argument and Padilla's other arguments re la tin g to freedom of association. 14

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complained of retaliation in regard to party membership. Moreover, the case law expounding o n freedom of association rights regularly speaks to "political affiliation" without further s p e c if ic a lly requiring "party affiliation." Indeed, this is true of the case law cited by Padilla. S e e Opening Br. 13 (citing Laskaris, 733 F.2d at 264-65). The Court is aware of no case e x p re s s ly requiring affiliation with a political party as opposed to mere political affiliation w ith , for example, a candidate or a cause or a political position on a petition or referendum, a s a precondition to bringing a Section 1983 claim founded in First Amendment freedom of a s s o c ia tio n rights. Nor can the Court imagine why affiliation with a party candidate is d e s e rv in g constitutional protection, but affiliation with an independent candidate would go la c k in g similar protections. Freedom of association rights involving the political party of o n e 's choice are, without doubt, at the core of protected First Amendment rights, but they are n o t the whole of that right. See Elrod, 427 U.S. at 357 (plurality opinion) ("There can no lo n g e r be any doubt that freedom to associate with others for the common advancement of p o litic a l beliefs and ideas is a form of `orderly group activity' protected by the First and F o u rte e n th Amendments.") (emphasis added) (citing NAACP v. Button, 371 U.S. 415, 430 (1 9 6 3 ) [(vindicating the right to solicit legal business)]; Bates v. Little Rock, 361 U.S. 516 (1 9 6 0 ) [(vindicating organization's right to keep membership anonymous)]; NAACP v. A la b a m a , 357 U.S. 449 (1958)). Inglima's right to run for PBA office and associate with p e o p le of a like mind falls under the protection of the First Amendment. See, e.g., Amend. C o m p l. ¶¶ 70, 80.

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B.

C O U N T II­THE RICO CLAIM

Count II of the Amended Complaint brings a cause of action against Padilla 1 1 under S e c tio n 1962(b) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Pub. L . 91-452, 84 Stat. 941, as amended, 18 U.S.C. §§ 1961-1968. Section 1962(b) provides: It shall be unlawful for any person through a pattern of racketeering activity o r through collection of an unlawful debt to acquire or maintain, directly or in d ire c tly, any interest in or control of any enterprise which is engaged in, or th e activities of which affect, interstate or foreign commerce. T h e Third Circuit has explained that in order to establish liability under Section 1962(b): [A] plaintiff must show injury from the defendant's acquisition or c o n tr o l of an interest in a RICO enterprise, in addition to injury from the p r e d ic a te acts. Such an injury may be shown, for example, where the owner o f an enterprise infiltrated by the defendant as a result of racketeering activities is injured by the defendant's acquisition or control of his enterprise. In a d d itio n , the plaintiff must establish that the interest or control of the RICO e n te rp ris e by the person is as a result of racketeering. It is not enough for the p la in tif f merely to show that a person engaged in racketeering has an otherwise le g itim a te interest in an enterprise. Rather, it must be established firmly that th e re is a nexus between the interest and the alleged racketeering activities. L ig h tn in g Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1190 (3d Cir. 1993) (citations and q u o ta tio n marks omitted) (emphasis added); Supp. Opening Br. 9-10 (quoting Lightning L u b e , supra), (Doc. No. 26); Supp. Opp'n Br. 4 (same), (Doc. No. 29). T h e gravamen of the Amended Complaint is that Defendants Zisa, Padilla, and others

Unhelpfully, it appears that Padilla is nowhere expressly mentioned in the individual p a ra g ra p h s within Count II, see Amend. Compl. ¶¶ 246-64, (Doc. No. 9), the bulk of which m a k e s particularized allegations of wrongdoing against Defendant Zisa. Allegations against P a d illa , to the extent that they are pled, are made through paragraph 246, incorporating by re f e re n c e into Count II all prior factual allegations within the Amended Complaint. 16

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engaged in a pattern of extortion, in conjunction with threats of retaliation, to maintain c o n tro l of the office of Hackensack Chief of Police, the purported RICO enterprise.1 2 P la in tif f s have alleged that there is a nexus between the pattern of racketeering and Padilla's c o n tro l (in concert with others) of the enterprise, i.e., Zisa's control of public office made it p o s s ib le for him to engage in the alleged extortion and the monies extorted maintained his (a n d their) control of that and other elective office. But the nexus requirement is separate f ro m the injury requirement. However, Plaintiffs have failed to articulate any injury that they s u f f e re d in consequence of Zisa, and Padilla, and others' acquisition or maintenance of c o n tro l of the RICO enterprise, here a government office, apart from the pattern of ra c k e te e rin g itself. Under Lightning Lube, it appears that absent "acquisition or maintenance in ju ry," apart from injury connected to the predicate acts or pattern of racketeering activity, P la in tif f s cannot proceed on a theory of RICO liability. DAVID B. SMITH & TERRANCE G. R EED, CIVIL RICO ¶ 6.04[6][b], at 6-141 (2009); see also Lightning Lube, 4 F.3d at 1191 (" [ A ] well-pled complaint under section 1962(b) ... requires the assertion of an injury

Compare Supp. Opening Br. 10 n.2 (suggesting that the RICO enterprise was the H a c k e n s a c k Police Department as a whole), (Doc. No. 26), with Supp. Opp'n Br. 4 (c la rif yin g that the RICO enterprise was the Hackensack Office of Chief of Police), (Doc. N o . 29). Padilla affirms that the "proposition" that RICO could extend to "Hackensack Police D e p a r t m e n t" would "wholly remove this case form any semblance of rationality." Supp. O p e n in g Br. 10 n.2. But see Genty v. Resolution Trust Corp., 937 F.2d 899, 906-07 (3d C ir. 1991) (noting that "[i]mposition of civil RICO liability [under Section 1962(a)] thus re q u ire s the existence of a `person' engaged in racketeering as well as an `enterprise' through w h ic h the illegal conduct occurs. An enterprise may be a public entity, like Gloucester T o w n s h ip " ). 17

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independent from that caused by the pattern of racketeering."). For this reason, its appears th a t the RICO claim must be dismissed. C. C O U N T IV­THE CONSPIRACY CLAIM

T h e original complaint's conspiracy count was brought under 42 U.S.C. § 1985; h o w e v e r, this language was dropped from the Amended Complaint. Compare Compl. ¶ 42, (D o c . No. 1), with Amend. Compl. ¶ 46, (Doc. No. 9). The Amended Complaint fails to e x p re s s ly address whether the conspiracy claim arises under federal law or state law or both in the alternative. It fails to cite Section 1983 or Section 1985 or any other federal statute. D e f e n d a n t understands the Amended Complaint to be asserted as a common law claim. See R e p ly Br. 2, (Doc. No. 18); Supp. Opening Br. 5, (Doc. No. 26). Plaintiffs' brief in o p p o sitio n fails to expressly address this point. Supp. Opp'n Br. 8-9, (Doc. No. 29). Given P la in tif f s ' silence in his opposition brief,1 3 and given that the original complaint expressly a s s e rte d conspiracy liability under federal law, i.e., Section 1985, but this language was s u b s e q u e n tly dropped from the Amended Complaint, it appears that Defendant's position is w e ll-ta k e n and the Court will construe Plaintiffs' conspiracy claim as one asserted e x c lu s iv e ly under state or common law. Under New Jersey law, which appears to control u n d e r any relevant choice of law test, the "elements of a civil conspiracy, [include the]

The section of Plaintiffs' opposition brief, Supp. Opp'n Br. 8, (Doc. No. 29), which s e e k s to defend the conspiracy count cites a single case: Feliz v. Kintock Group, 297 Fed. A p p 'x 131 (3d Cir. 2008). Feliz does discuss conspiracy liability, but it is unclear as to w h e th e r it is adjudicating state or federal conspiracy law. As such, it hardly clarifies P la in tif f s ' position in the instant litigation. 18

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combination of two or more persons acting in concert to commit an unlawful act, or to c o m m it a lawful act by unlawful means, the principal element of which is an agreement b e tw e e n the parties to inflict a wrong against or an injury upon another, and an overt act that re s u lts in damage." LoBiondo v. Schwartz, 970 A.2d 1007, 1029 (N.J. 2009) (quotation m a rk s omitted). In Count IV, Plaintiffs allege that Zisa, Padilla, and others conspired to violate P la in tif f s ' First Amendment free speech and freedom of association rights. Amend. Compl. ¶ 46, (Doc. No. 9). Padilla argues that absent an underlying actionable wrong, a common law c o n s p ira c y action must fail, i.e., "[a]ctionable civil conspiracy must be based on an existing in d e p e n d e n t wrong or tort that would constitute a valid cause of action if committed by one a c to r." Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1218 (11th Cir. 1999) (expounding on F lo rid a law); Supp. Opening Br. 13 (quoting Posner, supra), (Doc. No. 26). Padilla maintains th a t the conspiracy action must fail because the underlying First Amendment claims fail. P a d illa ' s argument is rejected. The Court has already held that both of Plaintiffs' First A m e n d m e n t claims survive Padilla's motion to dismiss. See Section IV[A][1-2], supra. T h e re f o re Padilla's challenge to the conspiracy count fails.

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V.

C O N C L U S IO N F o r the reasons elaborated above, the Court GRANTS in part, and DENIES in part,

D e f e n d a n t Tomas Padilla's motion to dismiss. Specifically, Counts II and XII are dismissed a g a in s t Padilla; the motion is DENIED in all other respects. An appropriate Order accompanies this memorandum opinion. s/ William J. Martini William J. Martini, U.S.D.J. D A T E : October 20, 2009

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