AIELLOS et al v. ZISA et al

Filing 65

OPINION re 30 MOTION to Dismiss filed by THOMAS SALCEDO. Signed by Judge William J. Martini on 2/2/10. (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: 2:09-3076

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 o f Police, C. Kenneth Zisa, and others, including the City of Hackensack, alleging that the

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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Defendants violated their constitutional rights. (Doc. No. 1.) On August 3, 2009, Plaintiffs f ile d a more detailed twelve-count Amended Complaint, (Doc. No. 9), which has since b e c o m e the operative complaint by order of the Court, (Doc. No. 19). This Court has already had occasion to rule on Tomas Padilla's motion to dismiss. See D o c . No. 3 (motion and opening brief), Doc. No. 26 (supplemental opening brief in light of a m e n d e d complaint), Doc. No. 47 (opinion granting in part and denying in part Padilla's m o tio n , and dismissing RICO count), Doc. No. 56 (opinion denying reconsideration). In prior proceedings, Defendant Zisa filed a late reply brief in regard to his, that is Z is a 's, (separately brought) motion to dismiss. Plaintiffs sought to strike the late reply brief a n d sought to preclude counsel for Defendant Zisa and counsel for Defendant Captain T h o m a s Salcedo (the "Defendant") from filing separate motions to dismiss. Plaintiffs argued th a t the filings were duplicative and that Zisa's counsel, in fact, represented Salcedo too ­ s u c h that a separate filing from Salcedo was, in effect, two bites at the apple. This Court re je c te d Plaintiffs' application. (Doc. No. 54.) P re s e n tly before the Court is Defendant Salcedo's motion to dismiss pursuant to R u le 12(b)(6) (the "Motion"). (Doc. No. 30.) The Motion is fully briefed. See Doc. No. 30-1 (th e "Opening Brief"); Doc. No. 45 (the "Opposition Brief"); Doc. No. 49 (the "Reply B rie f " ). Of the twelve counts in the Amended Complaint, only two are litigated in the M o tio n , as they are the only two counts brought against Defendant. They include: (A ) Count IV ­ the state law civil conspiracy claim; and (B) Count IX ­ the Conscientious

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Employee Protection Act Claim, N.J.S.A. 34:19-3. Having considered the parties' filings, state statutory law, the federal rules, case law, a n d persuasive scholarly authority, the Court, for the reasons elaborated below, will GRANT in part, and DENY in part, Salcedo's Motion. Count IX will be dismissed; all other relief is denied.

II.

F A C T U A L BACKGROUND ALLEGED IN THE AMENDED COMPLAINT 2 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 and Defendant Captain Padilla, and other defendants, including Defendant S a lc e d o , engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, s e e k in g , among other things, political donations to further Zisa and Padilla's political career a n d the political career of those allied with them, including candidates for office within the P o lic e m e n 's Benevolent Association ("PBA") of Hackensack. It is further alleged that those w h o were not allied with Zisa and Padilla, including those officers who refused to donate to th e ir political campaigns, were subject to retaliation and threats of retaliation in violation of P la in tif f s ' First Amendment free speech and freedom of association rights. Thereafter, P la in tif f s filed a complaint, subsequently superseded by the Amended Complaint, and, a f te rw a rd s , Defendant Salcedo brought the instant motion to dismiss. (Doc. No. 30.)

For a fuller development of the allegations, procedural posture, and the law of this c a s e , the Court refers the parties and others to this Court's prior orders and memoranda o p in io n s . See, e.g., Docs. Nos. 47, 54 & 56. 3

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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 th e 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 t h 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

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defendant 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 .2 d 1192, 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 to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 5 6 0 (3d Cir. 2002). Generally, the court may not rely on other parts of the record in d e te rm in in g a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F .3 d 1250, 1261 (3d Cir. 1994).

IV .

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

A m e n d e d Complaint, i.e., (A) Count IV ­ the civil conspiracy claim; and (B) Count IX ­ the C o n s c ie n tio u s Employee Protection Act Claim, apply to the Defendant, Captain Thomas S a lc e d o , and it further argues, on a variety of grounds, that each of the two counts against the D e f e n d a n t should be dismissed for failure to state a claim. This opinion addresses each of D e f e n d a n t's contentions in turn. A. C O U N T IV ­ CIVIL CONSPIRACY UNDER STATE LAW

F irs t, Defendant argues that, under New Jersey state or common law, a civil c o n s p ira c y is "a combination of two or more persons acting in concert to commit an unlawful a c t, or to commit a lawful act by unlawful means, the principal element of which is an

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agreement between the parties to inflict a wrong against or injury upon another ...." Banco P o p u la r N.A. v. Gandi, 876 A.2d 253, 263 (N.J. 2005), and that a plaintiff must allege "a s in g le plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences." Morgan v. Union County Bd. of Chosen F re e h o ld e r s , 633 A.2d 985, 999 (N.J. Super. Ct. App. Div. 1993); cf. Kronfeld v. First Jersey N a t. Bank, 638 F. Supp. 1454, 1469 (D.N.J. 1986) (holding, with respect to federal c o n s p ira c y law, "[t]he additional element of a conspiracy ­ an agreement between the alleged c o n s p ira to r[ s ] [sic] ­ cannot be conclusionally pled. Specific facts of an agreement must be a lle g e d ." ). The Court agrees: in order to withstand the instant motion to dismiss, Plaintiffs m u s t make some allegations tying this Defendant to the alleged Zisa-Padilla conspiracy w h ic h sought to extract by threats support and funds from HPD officers, and allegedly where th re a ts failed to retaliate against recalcitrant officers, thereby denying Plaintiffs their First A m e n d m e n t Free Expression and Freedom of Association rights. Plaintiffs' allegations a p p e a r to be sufficient under this standard. Generally, Plaintiffs allege that Zisa and Padilla sought to coerce Aiellos, and that T o o m e y, also allied with Zisa-Padilla, had an altercation with Aiellos. Plaintiff Duardo a lle g e d ly witnessed the altercation, attempted to report it, but was "induced to write a false re p o rt by Captain Salcedo," and, thereafter, was transferred in retaliation. Amend. Compl. ¶ ¶ 151-56. Salcedo was not a party to the altercation, and he had no obvious personal motive to intervene. Thus, one could reasonably infer, assuming these allegations to be true, that the

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Defendant was working to protect Zisa, Padilla, and their alleged operative, Toomey. One c o u ld also infer that the Defendant was part of the Zisa-Padilla group, knew of and agreed to the alleged ongoing plan to control HPD officers, extract financial support from them, and to punish them should they fail to comply. Alternatively, Defendant argues that, as a matter of law, the agents and officers of the H P D cannot conspire with one another or with the City of Hackensack, as long as the alleged w ro n g d o in g was taken in the scope of their employment. See Sunkett v. Misci, 183 F. S u p p . 2d 691, 722 (D.N.J. 2002) ("[O]fficers of governmental entities cannot conspire with th e entity.... The same principles suggest that officers acting within the scope of their e m p lo ym e n t cannot conspire together."); Opening Brief 18-24 (collecting case law). T h e Court will not dismiss the civil conspiracy claim against Salcedo at this time. The p re c e d e n ts put forward in support of dismissal by Salcedo are uniformly federal district court a u th o rity from this district interpreting New Jersey state law. Such authority attempts to p re d ic t what the New Jersey Supreme Court would do if faced with an identical claim. S a lc e d o has put forward no New Jersey Supreme Court authority on this point. Indeed, he h a s put forward no state court authority at all. This is not a criticism. This Court's own r e s e a rc h has found no on-pont state trial court or appellate decisions from the New Jersey s ta te courts. It appears that the federal courts which have rejected claims of intracorporate c o n s p ira c y did so, in large part, because the Supreme Court of the United States rejected

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finding an intracorporate conspiracy in Copperweld v. Independence Tube, 467 U.S. 752 (1 9 8 4 ) (Burger, C.J.). Copperweld was an antitrust case. In reaching its decision, the S u p re m e Court was determining the meaning of a federal statute, see Sherman Act, 26 S t a t. 209, as amended, 15 U.S.C. § 1, and Congress' intent in regard to that statute. Such c o n s id e ra tio n s are not at play here, where this Court's function is to predict what the S u p re m e Court of New Jersey would do if faced with an identical claim. Moreover, it is not a t all clear that the principles, purposes, and policies animating the intracorporate conspiracy d o c trin e should apply on the facts of this case. This Court predicts that the Supreme Court o f New Jersey would adopt the intracorporate conspiracy doctrine in regard to a common law c o n s p ir a c y claim if the principles, purposes, and policies animating the doctrine squarely a p p ly to the facts of a case before it. But the facts relevant to that determination are unclear (a s this question has not been briefed by the movant) and where clear, those very facts are c o n te s te d , and, therefore, should wait for clarification through discovery. See Sunkett v. M isc i, 183 F. Supp. 2d at 723-24 (rejecting claim on intracorporate conspiracy grounds at the s u m m a ry judgment stage). Moreover, although the Supreme Court applied the intracorporate conspiracy doctrine e x p a n s i v e ly in Copperweld, this Court believes it is likely that if the New Jersey Supreme C o u rt applies this doctrine to civil conspiracy under New Jersey law, it will do so in a more lim ite d fashion. In doing so, this Court predicts that the New Jersey Supreme Court would f o llo w the lead of the Third Circuit which, in interpreting federal civil conspiracy claims

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under the civil rights laws, applied the intracorporate conspiracy doctrine, although limiting th e reach of that doctrine in certain situations which appear to be at issue here. See Heffernan v . Hunter, 189 F.3d 405, 412 (3d Cir. 1999) ("We have addressed this issue in several o p in io n s . In Novotny v. Great American Federal Savings & Loan Ass'n, 584 F.2d 1235 (3d C ir. 1978) (en banc), vacated on other gds., 442 U.S. 366 (1979), the plaintiff's complaint d id not allege that the corporate defendant conspired with its officers and directors, but rather th a t a conspiracy existed between the individual officers. Therefore, the issue was whether c o n c e rte d actions by officers and employees of a corporation could be the basis of a claim u n d e r [42 U.S.C.] section 1985(3). We held that it could.... [C]ourts that have followed the d o c trin e allow a[] [limited] exception when the employees have acted for their sole personal b e n e f it and thus outside the course and scope of their employment."). B. C O U N T IX ­ CONSCIENTIOUS EMPLOYEE PROTECTION ACT

In Count IX, Lieutenant Vincent Riotto brought a Conscientious Employee Protection A c t (a "CEPA") claim against Chief Zisa and Defendant Salcedo. See Opposition Brief 5 n.1 (c la rif yin g that the claim is asserted under N.J.S.A. 34:19-3(c)(1) ("An employer shall not ta k e any retaliatory action against an employee because the employee does any of the f o llo w in g : c. Objects to, or refuses to participate in any activity, policy or practice which the e m p lo ye e reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated p u rs u a n t to law ....")). The gravamen of the claim is that Riotto sent a letter to Zisa. The letter re p o rte d that one officer threatened another. The letter alleged that Zisa refused to advance

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officer Ferraioli and others for personal reasons. Finally, the letter alleged that Captain T h o m a s Salcedo was not a Hackensack resident when he applied for a position with the H P D . Amend. Compl. ¶¶ 181-87; Opposition Brief 3. Two days later Riotto was interrogated b y Lieutenant Heinemann on orders from Deputy Chief Koeser. Amend. Compl. ¶¶ 188-203. S ix days later, Riotto was again interrogated, this time by Heinemann and Salcedo. Id. ¶ ¶ 206-210. He was subsequently "presented to Dr. Shievella for a mandatory fitness for duty p s yc h o lo g ic a l evaluation." Id. ¶ 211. Later, he was interrogated by Salcedo, acting alone. Id. ¶ ¶ 214-15. He was also ordered to take a drug test and to release medical information under th re a t of discipline, and then suspended on 62 pending charges. Id. ¶¶ 216-18.3 In short, P la in tif f s argue: "Riotto is able to demonstrate all ... requirements of a CEPA claim. The first e le m e n t is sufficiently plead in that Riotto reasonably believed that the officers, including D e f e n d a n t Salcedo, who had committed fraud in their employment applications had violated a rule or regulation of the Hackensack police department. Secondly, Riotto performed `w h is tle -b lo w in g ' when he detailed and disclosed these allegations in his letter to Police C h i e f Zisa. Thirdly, the retaliation [was] taken against him" as set forth above. Opening

In Plaintiffs' Opposition Brief, they argue that Salcedo was "in charge of the Internal A f f a irs investigation that led to false charges being instituted against Riotto by Chief Zisa." O p e n in g Brief 3. But this allegation does not appear in the Amended Complaint. See Amend. C o m p l. ¶¶ 179-221. The Amended Complaint also alleges that Riotto's letter to Zisa stated t h a t Zisa refused to promote officers for "personal" reasons. Id. ¶ 185. The Opening Brief re c h a ra c te riz e s this allegation as an objection to Zisa's "practice of illegally preventing the c a re e r advancement of employees he disliked or who had not backed Zisa financially or p o litic a lly ...." Opening Brief 3 (emphasis added). 10

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Brief 4. The Defendant argues that the allegations fail to state a CEPA claim. The Court a g re e s . Section 34:19-3 of the New Jersey Code provides for three independent causes of a c tio n under CEPA. Section 34:19-3(a) prevents retaliation against an employee/whistleb lo w e r's "[d]isclos[ure], or threat[s] to disclose," and Section 34:19-3(b) prevents retaliation a g a in s t an employee/whistle-blower's "[p]roviding information to, or testif[ying] before ... a n y public body." By contrast Section 34:19-3(c) prevents retaliation against an employee f o r "[o]bject[ing] to, or refus[ing] to participate in any activity, policy or practice which the e m p lo ye e reasonably believes ... is in violation of a law." It seems to follow that a mere d is c lo s u re of a long past wrong, i.e., filing an allegedly false residence in a work application a p p a re n tly well over a decade ago, although possibly a "disclosure" under Section 34:193 (a ), does not meaningfully qualify as either an "objection" or as an objection to an "activity, p o lic y or practice," a terminology that would seem to connote, if not ongoing activity, at least a c tiv ity that lasted more than an instant or the time it takes to file a job application. Second, a lth o u g h Plaintiffs allege that Salcedo used a non-Hackensack address in order to secure a p o s itio n , but in violation of the law, Plaintiffs have failed to identify what "law ... rule or re g u la tio n promulgated pursuant to law," Section 34:19-3(c)(1), restricts HPD positions to p e rs o n s with an HPD residence. It is hardly obvious that this was, in fact, the policy at the tim e . Nor have Plaintiffs alleged any facts which would support the inference that, even if

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this was not actual HPD policy, Riotto's allegations of fraud4 were otherwise "reasonable." S e c tio n 34:19-3. This too would seem to defeat the CEPA claim. Finally, CEPA's statutory te x t imposes liability on employers, id., and, the case law has established that the statute also im p o s e s liability on individuals in certain situations. In other words, "CEPA ... imposes in d iv id u a l liability upon retaliatory parties who act with the authorization of their e m p lo ye rs ." Ivan v. County of Middlesex, 595 F. Supp. 2d 425, 478 (D.N.J. 2009). Here, the a lle g a tio n s relating to retaliatory conduct, other than two interrogations, do not implicate S a lc e d o . Such allegations are not a sufficient basis to hold Salcedo liable under CEPA. As to Salcedo's two interrogations of Riotto, they do not, individually or collectively, constitute " re ta lia to ry action[s]" as defined by statute or case law. See Section 34:19-2(e)("`Retaliatory a c t i o n ' means the discharge, suspension or demotion of an employee, or other adverse e m p lo ym e n t action taken against an employee in the terms and conditions of employment."); B e a s le y v. Passaic County, 873 A.2d 673, 684 (N.J. Super. Ct. App. Div. 2005) (same); see a ls o Zamboni v. Stamler, 847 F.2d 73, 82 (3d Cir. 1988) (Sloviter, J.) ("[P]redict[ing] ... that th e New Jersey Supreme Court would confine the tort of unlawful retaliation to formal p e rs o n n e l actions that have an effect on either compensation or job rank ...."); Borawski v. H e n d e r s o n , 265 F. Supp. 2d 475, 486 (D.N.J. 2003) ("Retaliatory action under CEPA is c o n f in e d to completed ... personnel actions that have an effect on either compensation or job

See Amend. Compl. ¶ 187 (quoting Riotto's letter to Zisa as stating that Salcedo c o m m itte d a "fraud" in his job application). 12

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rank."). For all these reasons, the CEPA count against Salcedo fails to state a claim.

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 Captain Thomas Salcedo's motion to dismiss. Count IX is dismissed; all other re lie f is denied. A n appropriate Order accompanies this memorandum opinion.

s/ William J. Martini William J. Martini, U.S.D.J. D A T E : February 2, 2010

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