KIRKLAND et al v. DILEO et al
Filing
21
OPINION. Signed by Judge Kevin McNulty on 4/15/13. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WENDELL KIRKLAND and
ANTHONY KIRKLAND,
Civ. No. 2:12-1196 (KM)
OPINION
Plaintiffs,
V.
LOUIS M.J. DiLEO,
and the CITY OF LINDEN
Defendaflts
KEVIN MCNULTY, U.S.D.J.:
Plaintiffs, Wendell Kirkland and Anthony Kirkland, bring this civil rights
action against City of Linden Municipal Judge Louis DiLeo and the City of
Linden. The Complaint seeks damages under 42 U.S.C.
§ 1983 for violations of
the Sixth and Fourteenth Amendments to the United States Constitution. It
asserts a related claim for conspiracy to deprive Plaintiffs of their civil rights,
pursuant to 42 U.S.C.
§ 1985. And it asserts corresponding violations of the
right to counsel and due process provisions of the New Jersey Constitution.
These claims arise out of the manner in which Judge DiLeo presided over a
prosecution brought against Wendell and Anthony Kirkland in Linden
Municipal Court.
Currently before the Court are separate motions to dismiss the
complaint, filed by Defendants, DiLeo and the City of Linden. The two most
important issues asserted are these: First, Defendants assert that the
Kirkiands’ claims must be dismissed because the Linden Municipal Court is an
“arm of the state” entitled to Eleventh Amendment immunity. Second,
Defendants maintain that DiLeo is entitled to absolute judicial immunity for
his actions in presiding over the Kirkiands’ trial.
I am mindful that immunity issues should be decided as early as is
practicable, but I find that Plaintiffs have alleged enough to entitle them to go
forward with discovery. For the reasons set forth below, Defendants’ motions
are DENIED.
I.
BACKGROUND
Wendell and Anthony Kirkland were arrested and initially charged with
several crimes triable in Superior Court, including theft by unlawful taking,
possession of burglary tools, and possession of marijuana. The Union County
Prosecutor’s Office downgraded the charges to disorderly persons violations
and remanded them to Linden Municipal Court. (See Schwartz Deci., Ex. A, at
¶J 12-13, ECF no. 7-1.)
On April 12, 2010, Judge DiLeo presided over the Kirkiands’
arraignments. (Complaint,
¶J 11-17, ECF no. 1.) During their arraignments,
DiLeo advised the Kirklands of the charges against them and advised them of
the possible consequences, including jail time, in the event of conviction. (Id. at
¶ 14.) The Kirklands were also advised of their right to counsel and the
appointment of a public defender if they were indigent. Both Anthony Kirkland
2
and Wendell Kirkland advised Judge DiLeo that they wished to retain private
counsel. (Id. at
¶
15.) Judge DiLeo gave the Kirklands until May 3, 2010, to
retain counsel, and advised them that by electing to retain private counsel they
had waived their right to the appointment of a public defender. (Id. at
¶
16.)
On May 3, 2010, Judge DiLeo presided over a conference at which both
Anthony and Wendell Kirkland appeared pro Se. When Judge DiLeo asked the
Kirklands if they had retained counsel, Wendell Kirkland said “Just give me the
public defender.” (Id. at
¶
19.)’ Judge DiLeo told the Kirklands that they had
“waived the public defender” and he scheduled the matter for trial nine days
later, on May 12, 2010. (Id. at
¶
20-23.)
On May 12, 2010, Judge DiLeo presided over the Kirkiands’ trial, which
began at 9:13 p.m. and concluded at 10:05 p.m. (Complaint
¶
25.) It is
undisputed that Judge DiLeo conducted the trial in the absence of defense
counsel and the municipal prosecutor. The only participants in the trial were
the Kirkiands, the arresting police officer, and Judge DiLeo. (Id.)
There being no prosecutor in the courtroom, Judge DiLeo conducted the
direct examination of the arresting officer and thereafter permitted Anthony
and Wendell Kirkland, pro Se, to cross-examine him. (Id. at
¶
26.) At the
conclusion of the officer’s testimony, Judge DiLeo asked the officer if he had
any other evidence to present, to which the officer responded, “There’s no
evidence here.” (Id. at
¶
27.) That statement was all too accurate. Although the
Anthony Kirkland’s response was inaudible. It is undisputed that Anthony Kirkland
did not retain private counsel.
1
3
Kirkiands had been charged with possession of marijuana, the police officer did
not submit into evidence the substance that was seized, nor did he produce
laboratory test results confirming that the substance was marijuana. Judge
DiLeo asked the officer if he intended to “rest” his case, to which the officer
responded “yes.” (Id. at
¶ 28.)
Following the police officer’s testimony, Judge DiLeo gave the Kirkiands
an opportunity to present any witnesses in their defense. The Kirkiands
advised Judge DiLeo that they had witnesses, but that the witnesses were not
present. Judge DiLeo found there to be no witnesses for the defense and
proceeded. (Id. at
¶ 29.)
Thereafter, Judge DiLeo advised the Kirklands of their Fifth Amendment
right against self-incrimination and provided them the opportunity to testify in
their own defense. Both Anthony and Wendell testified. They were crossexamined by the arresting police officer. Following the police officer’s crossexamination, Judge DiLeo questioned Anthony Kirkland at length about his
conduct on the evening in question. Judge DiLeo then questioned the arresting
officer again about the events surrounding the arrests. (Complaint
¶11 30-31.)
At the conclusion of the trial, Judge DiLeo found both men guilty on all
charges, including possession of marijuana. (Id. at
¶ 32.) Judge DiLeo
2
sentenced Wendell Kirkland to 180 days in the county jail, “day for day,” three
consecutive one-year probationary terms, and fines totaling $2,700. (Id. at
¶
33.) Anthony Kirkland was sentenced to two “day for day” consecutive 180 day
2
This phrase was apparently intended to foreclose eligibility for parole.
4
jail terms, three consecutive one-year probationary terms, and fines totaling
$3,100. (Id. at
¶ 34.) Wendell and Anthony Kirkland were taken into custody
immediately and remanded to the Union County Jail. (Id. at
incarcerated for 180 days. (Id. at
¶
¶ 38.) Each was
70.)
The Kirkiands successfully appealed their convictions. Judge Scott
Moynihan of the Union County Superior Court presided over the appeal. Judge
Moynihan found both men not guilty of the possession of marijuana charge
and remanded the remaining charges to the Elizabeth Municipal Court for a
new trial. (Id. at
¶ 46.) Judge Moynihan characterized the trial as a “perversion
of justice” and cited multiple instances in which Judge DiLeo violated the
Kirkiands’ constitutional rights. (Id. at
¶
47.)3
Anthony and Wendell Kirkland have now filed this action against Judge
DiLeo and the City of Linden.
II.
STANDARD OF REVIEW
Defendants assert their Eleventh Amendment objection by way of a
motion to dismiss under FED. R. CIV. P. 12(b)(6). The Eleventh Amendment,
however, “is a jurisdictional bar which deprives federal courts of subject matter
jurisdiction.” Blaricicik v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d
Cir. 1996) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
An order to show cause why Judge DiLeo should not be removed and
disqualified from further public office is pending before the New Jersey Supreme
Court, with a return date of April 30, 2013.
http://www.judiciary. state.nj .us/pressrel/20 13/D-661 2%2ODiLeo%2OACJC%200SC.pdf
5
98-100, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984)). Accordingly, the
motions may properly be considered as motions to dismiss the Complaint for
lack of subject matter jurisdiction under FED. R. Civ. P. 12(b)(1).
Motions to dismiss for lack of subject matter jurisdiction pursuant to
FED. R.
Civ. P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges may be
either facial or factual attacks. See 2 MooRE’s FEDERAL PRAcTIcE
§ 12.30[4J (3d
ed. 2007); Mortensen v. First Fed. Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977). A facial challenge asserts that the complaint does not allege sufficient
grounds to establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d at
438. A court considering such a facial challenge assumes that the allegations
in the complaint are true, and may dismiss the complaint only if it nevertheless
appears that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721
F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
Defendant DiLeo’s argument that he is immune from suit based on the
Eleventh Amendment constitutes a facial challenge to the jurisdictional basis
4
asserted in the Complaint. Accordingly, the Court will take the allegations of
The City’s motion is accompanied by an attorney declaration that attaches three
documents the complaint in this action, an ethical complaint against Judge DiLeo,
and Judge DiLeo’s answer to that complaint. I believe this was done as a courtesy, to
direct the Court’s attention to public matters of which it could take judicial notice,
even on a motion to dismiss. I do not find that this would convert the motion to a
factual challenge or a motion for summary judgment, and the Plaintiffs did not
respond to it as such.
—
6
the Complaint as true in considering those arguments. See Gould Elecs., Inc. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
In addition, and in the alternative, the motions seek dismissal for failure
to state a claim. Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to state a claim upon
which relief can be granted. The moving party bears the burden of showing that
no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take
all allegations in the complaint as true and view them in the light most
favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump
Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998); see also Phillips v. County ofAllegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(“reasonable inferences” principle not undermined by later Supreme Court
Twombly case, infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umlarid v. PLANCO Fin. Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
7
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’.
.
.
it asks for more than a sheer possibility.” Iqbal,
556 U.S. at 678 (2009).
III.
DISCUSSION
A. Judicial Immunity
As a judge, Defendant Diteo enjoys absoIue immunity for”judicial acts!’
Stump v. Sparkman, 435 U.S. 349 (1978). Judge DiLeo moves to dismiss the
Complaint, asserting that its claims are based solely on his judicial acts.
In Stump, the Supreme Court announced a two-part test for determining
whether an act is a judicial one. The first factor—whether the act was a
function normally performed by a judge—relates to the “nature of the act
itself.” Id. at 362. Thus the inquiry is somewhat generic. “[I]f only the
particular act in question were to be scrutinized, then any mistake of a judge in
excess of his authority would become a ‘nonjudicial’ act, because an improper
or erroneous act cannot be said to be normally performed by a judge.” Mireles
v. Waco, 502 U.S. 9, 12 (1991). “If judicial immunity means anything, it means
that a judge ‘will not be deprived of immunity because the action he took was
in error.
.
.
or was in excess of his authority.”’ Id. at 12-13 (quoting Stump, 435
U.S. at 362). Accordingly, “the relevant inquiry is the ‘nature’ and ‘function’ of
8
the act, not the ‘act itself.’ In other words, we look to the particular act’s
relation to a general function normally performed by a judge.” Id. at 13.
The second Stump factor—whether the parties dealt with the judge in his
judicial capacity—looks to the “expectations of the parties.” Stump, 435 U.S. at
362.
Judge DiLeo would be absolutely immune from suit based on actions and
decisions that are judicial in nature, even if they turned out to have been taken
err r-orin--cxcess-of h
authority- ere,—however the] assoftheKiriciiids’
claim is that Judge DiLeo acted, not as a neutral arbiter of disputes, but as a
prosecutor or advocate, and moreover that he did so in violation of all judicial
norms.
To be sure, convicted defendants, when criticizing adverse rulings, will
commonly exaggerate, stating for example that the judge took the State’s side
or acted as a “second prosecutor.” Still, the “second prosecutor” charge loses
some of its exaggerated flavor when we consider that Judge DiLeo tried this
criminal case unaided by counsel on either side of the aisle. He delegated the
f
State’s cross-examination of the Defendants to a police officer who had himsel
just testified as a fact witness. Judge DiLeo then took over the examination
himself. I do not say, of course, that a municipal court proceeding must
incorporate all of the procedural safeguards of a full felony trial, or that a judge
may never question a witness. But there is a plausible allegation here that the
conduct of this trial went beyond legal error, to the point that Defendant DiLeo
9
was no longer truly functioning as a judge. Of course, plaintiffs have not made
their case (nor would they be expected to at this stage). Neither has Judge
DiLeo told his side of the story, legally or factually, to this Court. Indeed, at
this stage I do not even have the trial transcript before me. At this early stage, I
cannot say that the allegations, taken as true, could not make out a case that
would withstand a judicial immunity challenge. I am mindful that immunity
determinations should be made as early as possible, but a determination would
be premature at this point.
Plaintiffs have a very heavy burden here, and they may not ultimately
carry it. But based on the allegations of the Complaint, this case may go
forward on the issue of whether Judge DiLeo so grossly departed from the
judicial role as to shed his judicial immunity. Discovery may be had on the
nature and function of Defendant DiLeo’s acts during the Kirkiands’ trial.
B. Claims Against DiLeo in His Official Capacity as a Judge of the
Linden Municipal Court: Eleventh Amendment Immunity
Defendant DiLeo asserts that, as a Judge of the Linden Municipal Court,
he partakes of the State’s Eleventh Amendment immunity from suit. He seeks
to dismiss the claims insofar as they are brought against him in his official
5
capacity.
The Eleventh Amendment may bar claims against a state official in his official
capacity. The Complaint also asserts certain of its claims against Defendant DiLeo in
his individual capacity. A person, even a state official, sued in his individual capacity
is not shielded by the Eleventh Amendment.
“[S]ince Exparte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714]
(1908),” we said, “it has been settled that the Eleventh Amendment
provides no shield for a state official confronted by a claim that he had
10
The Eleventh Amendment to the Constitution of the United States
cial power of the
guarantees the states’ immunity from certain claims: “The Judi
law or equity,
United States shall not be construed to extend to any suit in
Citizens of
commenced or prosecuted against one of the United States by
U.S. Const.
another State, or by Citizens or Subjects of any Foreign State.”
g, the Eleventh
amend. XI. Despite the seemingly limited scope of its wordin
principle of
Amendment has long been held to incorporate a more general
damages against
sovereign immunity that bars citizens from bringing suits for
662-63 (1974); see
any state in federal court. Edelman v. Jordan, 415 U.S. 651,
*6 (D.N.J. Apr.
also Kelley v. Edison Twp., No. 03—48 17, 2006 WL 1084217, at
675, 679 (D.N.J.
25, 2006) (citing Bennett v. City of Ati. City, 288 F. Supp. 2d
2003)).
is not
The Eleventh Amendment immunity applies “even though the state
in interest.”
named a party to the action, as long as the state is the real party
(quotations and
Carter v. City of Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999)
315, 322-23 (3d
emphasis omitted); see also Chisoim v. McManimon, 275 F.3d
a state partyCir. 2001) (“Eleventh Amendment immunity may be available to
deprived another of a federal right under the color of state law.” [citing
.]
Scheuerv. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687 (1974)
does not apply where a plaintiff
While the doctrine of Ex parte Young
seeks damages from the public treasury, damages awards against
individual defendants in federal courts “are a permissible remedy in
some circumstances notwithstanding the fact that they hold public
office.” 416 U.S., at 238, 94 S. Ct., at 1687. That is, the Eleventh
Amendment does not erect a barrier against suits to impose “individual
and personal liability” on state officials under § 1983. Ibid.
Haferv.Melo, 502U.S. 21, 112 S.Ct. 358 (1991).
11
in-interest notwithstanding a claimant’s failure to formally name the state as a
defendant.”) And the state is the real party in interest to a lawsuit if the named
defendant is in fact an “arm of the state.” See Chisoim, 275 F.3d at 323; Carter
181 F.3d at 347.
To determine whether a defendant is an “arm of the state” and therefore
protected by the Eleventh Amendment, courts in this Circuit examine three
factors (the “Fitchik factors”): “(1) whether payment of a judgment resulting
from the suit would come from the state treasury, (2) the status of the entity
under state law, and (3) the entity’s degree of autonomy.” Chisoim, 275 F.3d at
323 (citing Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655,
659 (3d Cir. 1989)). The Defendant, as the party claiming Eleventh Amendment
immunity, has the burden to establish it. Id.
The first Fitchik factor has repeatedly been held to be “the most
important factor” in the analysis. Chisoim, 275 F.3d at 323 (citing cases). I am
unable to conclude from the face of the Complaint that the payment of any
judgment arising out of this suit would come from the state treasury. Plaintiffs
in their briefs claim that it would not, and DiLeo does not appear to deny it.
This would tend to suggest that the Linden Municipal Court is not an arm of
the State, but is more akin to a local entity or a municipal subdivision for
Eleventh Amendment purposes.
The second and third Fitchik factors are interrelated. The second requires
an inquiry into the status of the Linden Municipal Court (and its judges) under
state law, i.e., “whether state law treats an agency as independent, or as a
12
an inquiry
surrogate for the state.” Fitchik, 873 F.2d at 662. The third requires
to the State
into the Linden Municipal Court’s “degree of autonomy” in relation
that its
of New Jersey. The greater the court’s autonomy, the more likely it is
judges are subject to suit under 42 U.S.C.
§ 1983.
As to factors two and three, Plaintiffs stress that the Linden Municipal
DiLeo is an
Court was created and funded by the municipality. They allege that
was
employee of the City of Linden, not the State of New Jersey, and that he
Council.
appointed by the Mayor of Linden and confirmed by the Linden City
The Complaint stresses that the City of Linden shares the blame for Judge
DiLeo’s actions, but at no point implicates the State itself. Judge DiLeo
state
emphasizes the status of the Linden Municipal Court as part of a unified
judges,
wide judicial system. The judicial power exercised by municipal court
te, 86
he argues, is the judicial power of the State. See Knight v. City of Marga
N.J. 374, 385 (1981).6
This Eleventh Amendment motion, as noted above, is a facial challenge.
notice,
But the allegations of the Complaint, even as supplemented by judicial
the
see Cardio—Med. Assoc., 721 F.2d at 75, do not compel a conclusion that
a, 67
Plaintiffs cannot surmount the Eleventh Amendment barrier. See Iwanow
F. Supp. 2d at 438. For example, I lack any real information about the source
or the
of payment of any judgment, the funding of the Linden Municipal Court,
ldegree of autonomy it possesses. I will therefore permit Plaintiffs’ officia
This issue is also potentially intertwined with the judicial immunity issue. As
ity
discussed above, Plaintiffs allege that Judge DiLeo acted so far outside his author
all.
that he was in effect not functioning as a judge at
6
13
capacity claims against Judge DiLeo to go forward so that discovery may be
had on the “arm of the state” issue. When both sides have had a fair
opportunity to gather the necessary facts, one or both Defendants may wish to
bring a motion to dismiss for lack of jurisdiction on a factual, rather than a
facial, basis. I will direct the Magistrate Judge to permit such directed
discovery so that a determination of this issue may be made as early as is
practicable.
C. Claims Against the City of Linden
The City of Linden asserts some of the same bases for dismissal asserted
7
by Defendant DiLeo. As to these, my rulings are the same.
There is an additional potential bar to the liability of the City of Linden.
In a federal civil rights action, municipal liability may not be founded on
respondeat superior; there must be evidence that the government unit itself
supported a violation of constitutional rights. Monell v. New York City
611
Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
(1978); Bielevicz v. Dubinon, 915 F.2d 845, 849-50 (3d Cir. 1990). Municipal
liability attaches only when “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury.” Bielevicz 915 F.2d at 850
,
(quoting Monell, 436 U.S. at 694.)
Linden does not, however, assert the State’s Eleventh Amendment immunity,
which, as a local municipality, it does not share. See Jinks v. Richiand County, 538
U.S. 456, 466, 123 S. Ct. 1667, 155 L. Ed. 2d 631 (2003); Monell v. New York City
611
Department of Social Services, 436 U.S. 658, 690, 98 5. Ct. 2018, 56 L. Ed. 2d
7
(1978).
14
“Policy is made when a ‘decisionmaker possess[ing] final authority to
l
establish municipal policy with respect to the action’ issues an officia
1469,
proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895 F.2d
481,
1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
can
106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986)). Custom, on the other hand,
specifically
be proven by showing that a given course of conduct, although not
virtually
endorsed or authorized by law, is so well-settled and permanent as to
constitute law. Bielevicz, 915 F.2d at 850.
Here, the Kirkiands allege that the City of Linden is liable because “[tjhe
e
severe and pervasive Constitutional violations were the long standing practic
Plaintiffs
and policies of the City of Linden.” Without the benefit of discovery,
these
cite to similar conduct in at least one other case. At the Complaint stage,
allegations suffice to set forth a plausible claim that the City of Linden tacitly
endorsed a practice of denying defendants their constitutional rights.
I will therefore deny the City’s motion to dismiss the Complaint. I will
well
allow the case to go forward so that discovery can be had on the merits as
as on the duration and frequency of unconstitutional practices in the
es,
Municipal Court, the City’s actual or constructive knowledge of such practic
and such other issues as may be relevant to the “custom” issue.
D. Conspiracy and State Claims
The Kirkiands also allege that the City of Linden and Judge DiLeo
States
conspired to deprive them of their constitutional rights. Title 42, United
Code, Section 1985(3), permits a plaintiff to bring a claim that two or more
15
people have acted together to deprive him of his civil rights. A plaintiff must
show: “(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is injured in his person or
property or deprived of any right or privilege of a citizen of the United States.”
Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (citing United Bhd.
of Carpenters & Joiners v. Scott, 463 U.S. 825, 828—29 (1983)).
Plaintiffs believe that discovery will reveal that the City of Linden at least
knew of and acquiesced in Judge DiLeo’s methods. To be sure, the Kirkiands’
theory is hardly overwhelming, but it possesses some factual plausibility, given
the allegedly extreme deviation from acceptable procedure. Particularly in light
of the information asymmetry between the parties, I will permit the conspiracy
claim to go forward so that discovery can be had.
Plaintiffs’ state law claims are to some degree redundant. They will at
least very likely depend on the viability of the federal claims. In particular, the
exercise of supplemental jurisdiction, see 28 U.S.C. § 1367, will depend heavily
on the jurisdictional and substantive merits of the federal claims. In addition, I
find that there are potential issues of fact. I therefore will not dismiss the state
claims at the present time.
16
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are DENIED.
An appropriate order will be filed.
KEVIN MCNULTY, U.S.D.J.
Dated: April 15, 2013
17
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