NATSIS et al v. TURNER et al
OPINION. Signed by Judge John Michael Vazquez on 3/10/17. (rg, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HELEN and KONSTANTINOS NATSIS,
Civil Action No. 13-7269
RICHARD TURNER, in his official capacity as
Mayor of Weehawken, TOWNSHIP OF
WEEHAWKEN, FRANK LAMOUNO, in his
official capacity as a construction official for the
Township of Weehawken, FRANK TATTOLI, in
his official capacity as a construction official for
the Township of Weehawken, SHAWN
MASTERSON, in his official capacity as an
employee of the Township of Weehawken
Building Department, VINCENT RIVELLI, in
his official capacity as a health officer employed
by the Township of Weehawken, POLICE
OFFICER AUGUSTO A. SAME, POLICE
OFFICER CONRAD HABLITZ, SERGEANT
PATRICK CANNON, DETECTIVE THOMAS
WHITE, SERGEANT RENE ROA, POLICE
OFFICER IGGY MITOLO, CHIEF JEFFREY
FULCHER, SERGEANT JOHN JOHNSON,
TOWNSHIP OF WEEHAWKEN POLICE
DEPARTMENT; KIM PAMPERIN; TRACY
PAMPERIN; DENISE HODKIN$ON; HARRY
ADJACENT/UPHILL HOMEOWNERS and/or
employee of the Township of Weehawken, who
anticipated in the arrests of Konstantinos Natsis;
PMK GROUP; J. FLETCHER CREAMER &
SON; MAYO LYNCH ASSOC. INC.; AVELLA
GARAGE; A. ROBERT PAULDING a/k/a
Paulding Haich Design Architects and Paulding
Design Group LLC; M & A DEMOLITION &
FELL, ESQ. services not rendered
engaging in a pattern of harassing of harassments
and selective enforcement to HELEN AND
John Michael Vazguez, U.S.D.J.
This matter comes before the Court on Defendants’1 partial motion to dismiss Plaintiffs’
(“Plaintiff Helen,” “Plaintiff Konstantinos,” or collectively “Plaintiffs”) Second Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 134. This suit arises out of
a series of disputes between Plaintiffs, their neighbors, the Township of Weehawken, and various
individuals who work for the Township of Weehawken stemming from Plaintiffs’ attempts to clean
up their (Plaintiffs’) property. The Court reviewed all submissions in support and opposition, and
considered the motion without oral argument pursuant to Federal Rule of Civil Procedure 78 and
Local Civil Rule 78.1(b). Plaintiff brought an eleven-count Second Amended Complaint (“SAC”)
after the Judge Cecchi granted in part and denied in part Defendants’ motion to dismiss the First
Amended Complaint. D.E. 113. For the reasons stated below, Defendants’ motion to partially
dismiss the SAC is granted in part and denied in part.
When referring to Defendants collectively, the Court will refer to them as “Defendants,” and
when referring to a Defendant individually, the Court will refer to him or her by name. The
moving Defendants are Richard Turner, frank Lamolino, frank Tattoli, Shawn Masterson,
Vincent Rivelli, August A. Same, Conrad Hablitz, Thomas White, Patrick Cannon, Rene Roa,
Iggy Mitolo, Jeffry Fulcher, John Johnson, and Donna Jandik.
RELEVANT FACTS AND PROCEDURAL HISTORY2
In April of 2000, Plaintiffs purchased a two-family home located at 347-3 53 Park Avenue
in Weehawken, New Jersey (“the Property”). SAC
¶ 35. The previous owners did not maintain
the Property and it was littered with tires, sinks, toilet bowls, cans, bottles, plywood, dead trees,
and rocks. The Property also had a leaking sewage pipe. Id. at
¶J 38-39; 79-81. It was later
discovered that the title search done by Old Republic Title Insurance Company (“Old Republic”)
prior to purchasing the property failed to reveal an easement for sewer pipes through the Property.
85. Plaintiffs’ predecessor in interest granted the easement in 1923 for the benefit of
Plaintiffs’ neighbors who live up the hill from the Property (the “uphill property owners”). Id.
Plaintiffs discovered sewage, fecal matter, and flushed household products flowing onto the
Property and leaking into their basement. Id. at
On or about April 23, 2000, Plaintiffs were given a citation for attempting to clean up the
Property. Id. at ¶ 40. The next day, Plaintiffs were advised by Nicholas Recarnarti, a construction
official (“Construction Official Recamarti”), that they could remove dead trees from the Property,
but not stumps or roots, and that they should obtain a permit to do so. Id. at
¶J 41-43. On April
25, 2000, Plaintiffs received verbal permission from Vincent Mezzina at the Weehawken
Department of Public Works to clean up the Property. Id. at
¶ 47. On the same day, Plaintiffs
began cleaning up the Property, but Defendant Frank Lamolino stopped Plaintiffs again, and on
May 2, 2000, issued Plaintiffs a sunmions for “failure to obtain prior approval from the Planning
Board [for] cut[ting] down trees on [a] steep slope.” Id. at
5 1-53. On May 3, Construction
The facts of this matter derive from the SAC. On a motion to dismiss, the Court accepts all of
the factual allegations in Plaintiffs’ complaint as true, see Phillips v. County. ofAllegheny, 515
F.3d 224, 234 (3d Cir. 2008), but need not give weight to mere conclusory statements, Ashcroft
v. Iqbat, 556 U.S. 662, 663 (2009).
Official Recarnarti left Plaintiffs a voicemail message giving them permission to proceed with the
cleanup. Id. at ¶ 54. Plaintiffs once again began to clean their Property. Id. After being threatened
with another summons by Defendant Larnolino, Plaintiffs applied for and received a permit from
the Weehawken Building Department on May $ “to cleanup garbage, debris, trees, leaves, [and
wood].” Id. at
On May 15, Plaintiffs received a pemlit to perform home renovation work.
Subsequently, Defendant Lamolino issued Plaintiffs a second summons for failure to
stop cutting down trees. Id. at
65. On June 13, Plaintiffs were ordered by the Weehawken
Municipal Court to pay $2,365 in fines for failure to obtain approval from the Building Department
despite having been issued permits. Id. at
Plaintiffs then complained to Weehawken Mayor
Richard Turner multiple times about the dead trees and falling rock on the Property, but were
denied a meeting with him. Id, at ¶f 6 8-70. On July 3, Plaintiffs went to the Weehawken Building
Department to “request permission” to remove the dead trees, but they were denied. Id. at ¶ 75.
On February 21, 2001, Old Republic informed Plaintiffs that it believed Plaintiffs’ uphill
neighbors had a duty to maintain the easement. Id. at ¶ 109. Plaintiffs further allege that because
their uphill neighbors support Mayor Turner’s administration, Mayor Turner and his affiliates
commenced a concerted practice of harassment and retaliation against Plaintiffs, which included a
scheme to ensure that Plaintiffs were legally responsible for the sewer easement. Id. at
In or around April 2001, the Building Department also revoked Plaintiffs’ permission to
clean up the sewage debris, stating that Plaintiffs were destroying the sewage line and undermining
the integrity of the Palisades Cliff (on which the Property sat) by gardening and cleaning up the
area. Id. at
On April 2, 2001, Defendant Lamolino issued Plaintiffs two violations for non
compliance with the “Steep Slope Ordinance.” Id. at
116. Later that month, Plaintiff Helen
contacted and spoke with the Jersey Journal about the sewage pipe. Id. at
¶J 121-122. While
Helen and the reporter were in the process of discussing Plaintiffs’ property, Defendant Larnolino
apparently intervened. Id. at ¶ 124. The next day Helen called the Jersey Journal and was informed
that the Township attributed the pipe damage to Plaintiff Konstantinos and no story would be
written. Id. at 125.
On May 14, 2001 Plaintiffs hired Terroro Demolition to clean their basement and remove
other debris. Id. at
¶ 129. Defendant Lamolino then came to the Property and told Terroro
Demolition that no permit would be issued for their work and ordered the contractors to leave. Id.
¶ 130. Then, on May 16, 2001, Defendant Lamolino issued a complaint against Plaintiffs for
“[flailure to comply with [the] prior order issued on 4/2/0 1 requiring owner to restore land on steep
slope area.” Id. at ¶ 131.
A few months later, on December 11, 2001, Plaintiff Konstantinos was charged with
violating Local Ordinance 16-12.4 for cleanup and control of a hazardous material. Id. at
He was originally convicted, but the conviction was later dismissed on appeal. Id. at
¶ 152. Then
on February 6, 2002, Plaintiff Konstantinos was arrested by Defendant Sergeant Cannon and
charged under N.J.$.A. 2C: 17-2(2) for “Causing or Risking Widespread Injury” after being
accused by the uphill property owners of destroying the PVC sewer pipe on the Property. Id. at
¶ 154. The charge was originally a crime in the third degree, but was downgraded to a disorderly
persons offense in municipal court. Id. at
¶ 156. Plaintiff Konstantinos again appealed to the
Superior Court of New Jersey, Hudson County, where a judgement of acquittal was entered. Id.
On May 30, 2002, Plaintiffs commenced litigation in the Superior Court against Defendant
Township of Weehawken, Richard Allgayer (an uphill owner), and Old Republic (the “Natsis I
Litigation”). Id. at
¶ 164. Following the commencement of the Natsis I Litigation, Mayor Turner
allegedly instructed, commanded, and/or otherwise directed public officials and private actors
named as Defendants in this case to increase their intimidation of Plaintiffs. id. at
¶ 166. Plaintiffs
then amended the 2002 complaint to include additional defendants who are named in the
immediately pending SAC, such as Sergeant Patrick Cannon and Officer Hablitz.
On or about January 28, 2004, Defendant Hablitz, a police officer, and another officer from
the Weehawken Police Department approached Plaintiff Konstantinos while he was shoveling
snow and demanded that he produce identification, which Plaintiff Konstantinos produced. Id. at
¶J 186-187. Defendant Hablitz and the police officer then accused and charged Plaintiff
Konstantinos with throwing snow in a public street in violation of a Weehawken municipal
ordinance. Id. at
¶ 18$. He was then arrested, which Plaintiffs allege was baseless and designed
to intimidate them from exercising their free speech rights. Id. at
On February 2, 2004, Defendant Lamolino and other officials came to the Property and
were denied access by Plaintiffs, but nonetheless inspected the Property and took photographs. Id.
¶ 191. After that visit, on February 11, 2004, Plaintiffs were served with a notice accusing them
of creating a public health nuisance due to the leaky sewer pipes and instability of the slope. Id.
¶ 192. As noted, Plaintiffs were informed by their title insurance company that the sewer
easement required that Defendants Kim and Tracy Pamperin (both uphill property owners)
maintain the sewer line easement in the slope. Id. at
¶ 194. furthenTlore, an engineering report
from 2002 indicated that the slope instability was caused by falling rock from the uphill property
owners’ land. Id. at
¶ 195. The falling rock was caused by the sewage easement line, improper
drainage systems, and lack of retaining walls. Id.
In 2004, the attorneys in the Natsis I Litigation executed a partial stipulation of dismissal
without prejudice against Defendants Township of Weehawken, Construction Official Tattoli,
Sergeant Cannon, Officer Hablitz, Defendant Rivelli, and others. id. at ¶J 226-27. The stipulation
of dismissal stated, in pertinent part, that “[t]hese defendants agree to waive all statute of
limitations defenses.” Id. at ¶ 228. After a jury trial on the remaining claims, on March 5, 2005,
the Superior Court found in favor of Weehawken for $123,841. Id. at ¶ 235. On January 9, 2007,
the Appellate Division overturned the trial court’s judgment and remanded for further proceedings.
Plaintiffs allege that after this victory, Defendants “continued their pattern of
harassing and intimidating Plaintiffs for speaking out against the town [and] challenging them in
court.” Id. at
Then, on or about June 3, 2008, Plaintiffs won a verdict of $157,000 after a
trial on remand. Id. at
On September 28, 2006, Plaintiffs received a letter from an attorney for the Township of
Weehawken, copying Mayor Turner, explaining that the Township of Weehawken was interested
in buying the Property. Id. at ¶ 274. The letter further explained Township employees and agents
required full access to the Property to conduct “studies, surveys, testing and the like.” Id.
Thereafter, in 2007, a sump pump station was installed into the slope to benefit the uphill property
owners who were supporters of Mayor Turner. Id. at
The uphill property owners were
never issued any citations or summonses, and they never were threatened due to the easement’s
disrepair. Id. at ¶ 292.
In September of 200$, Defendants Chief Jeffry Fulcher and Sergeant Patrick Cannon of
Weehawken Police Department reported that Plaintiffs agreed to remove two U-Haul vehicles
from their driveway. Id. at
333. After this incident, Plaintiff Helen filed an Internal Affairs
complaint against Defendants Fulcher and Cannon, asserting that Plaintiffs had not agreed to the
removal of the two U-Haul vehicles. Id. at ¶ 333.
In addition to the foregoing allegations, Plaintiffs also claim that their applications for
permits were often lost or not processed by the Weehawken Building Department. Id. at ¶ 295. In
2005, Plaintiffs submitted a site plan to build a three-story structure on their property, but it was
never acknowledged. Id. at
In March 2008, Plaintiffs applied for a permit to clean their
property and again no response was received. Id. at
Also in May 200$, a contractor
went to the Weehawken Building Department on behalf of Plaintiffs and submitted a request for a
permit, but it was subsequently denied. Id. at
309-10. Plaintiffs submitted an Open Public
Records Act (“OPRA”) request regarding whether permits were obtained by their uphill neighbor
in 2010. Id. at ¶ 353. This request also never received a response. Id.
On May 9, 2012, after receiving no permits through the Weehawken Building Department,
Plaintiffs applied for a permit from the Hudson-Essex-Passaic Soil Conservation District
(“HEPSCD”) to clean their driveway and parking lot area of rocks. Id. at
application was approved the following day. Id. at
384. The permit
Plaintiffs learned through an OPRA
request that Mayor Turner had telephoned the HEPSCD in January of 2013 and discussed
Plaintiffs’ property. Id. at ¶J 3 95-96. Mayor Turner said he was “upset with the agency” and that
its issuing a permit to Plaintiffs “would delay court proceedings.”3 Id. at ¶ 397.
On April 5, 2009, Plaintiff Konstantinos was again arrested for striking Defendant Shawn
Masterson in the chest. Id. at ¶ 343 -46. Three years later, on April 5, 2012, Plaintiff Konstantinos
was arrested for having “recklessly created a risk of widespread injury or damage, specifically by
It is unclear from the SAC which “court proceedings” Mayor Turner was referring.
removing the bluestone from the foundation of a residence on top of the hillside.” Id. at
The criminal complaint was later dismissed. Id. at ¶ 378.
On October 26, 2015, Plaintiff Konstantinos was criminally charged with violations of
N.J.S .A. “2C: 18-33 and 2C:1 7-3A(2)” for digging a twenty-foot trench on his neighbor’s property.
Id. at ¶J 474—75. Plaintiff appeared in Weehawken Municipal Court as a result of the charges, but
the matter was moved to Bayonne Municipal Court because of Weehawken’s conflict of interest
resulting from this litigation between Plaintiffs and Weehawken. Id. at
477. When Plaintiff
Konstantinos appeared in Bayonne Municipal Court, Elise DiNardo, Esq. appeared as the special
prosecutor. Id. at ¶ 478. Ms. DiNardo is also counsel for Defendants in this case. Id. at 479.
Plaintiffs commenced this litigation on December 3, 2013, and filed an amended complaint
on December 12, 2014. D.E. 1 & 64. On February 29, 2016, Judge Cecchi granted in part and
denied in part Defendants’ motion to dismiss the amended complaint. D.E. 113 (“J. Cecchi Op.”).
Judge Cecchi granted the motion dismissing the following claims without prejudice: Count One
(retaliation for lack of political affiliation under the New Jersey Civil Rights Act (“NJCRA”)),
Count Two (retaliation for lack of political affiliation under 42 U.S.C.
1983), Count Three
(retaliation for exercising free speech rights under the NJCRA), Count Four (retaliation for
exercising free speech rights under 42 U.S.C.
1983), Count Seven (abuse of process under 42
U.S.C. 1983), and Count Ten (civil conspiracy under 42 U.S.C.
1985). Id.; D.E. 114.
Plaintiffs filed the SAC (D.E. 123), alleging the following eleven causes of action: (1)
“New Jersey Civil Rights Act[,] N.J.S.A. 10:6-2, et seq. Article 1, Section 18 (Lack of Political
Affiliation),” (2) “42 U.S.C.
1983 (Retaliation for Lack of Political Affiliation),” (3) “New Jersey
Civil Rights Act[,] N.J.S.A. 10:6-2, et seq. Article 1, Section 18 (Free Speech Retaliation),” (4)
1983 (Free Speech Retaliation),” (5) “False Arrest,” (6) “Malicious Prosecution,” (7)
“Abuse of Process,” (8) “42 U.S.C.
Liability),” (10) “42 U.S.C.
1983 (Equal Protection),” (9) “42 U.S.C. 1983 (Municipal
1985 (Civil Conspiracy),” and (11) “Taking of Property without Just
Defendants filed the current partial motion to dismiss (D.E. 134), which Plaintiffs opposed
(D.E. 141). Defendants have not moved to dismiss Counts Six, Eight, Nine, and Eleven.
At the outset, Plaintiffs have consented to the dismissal of the following Defendants: Kim
Pamperin, Tracy Pamperin, Township of Weehawken Police Department, J. Fletcher Creamer &
Son, Avella Garage alk/a Highpoint, Robert Paulding a’kla Paulding Haich Design Architects and
Paulding Design Group LLC, M&A Demolition & Evacuation, Michael Ambrosio, Joseph Fell
Esq., Detective Thomas White, Sergeant Rebe Roa, Officer Iggy Mitolo, Donna Jandik, Officer
August A. Same and Sergeant John Johnson. D.E. 125; P1. Op. at 1; 145. All but two of these
Defendants have already been dismissed through a consent order executed by the parties and
ordered by the Court. D.E. 125 & 145. In their opposition brief, Plaintiffs agreed to voluntarily
dismiss Defendants Same and Johnson. D.E. 141 at 1.
Same and Johnson will be dismissed in
the Court’s order accompanying this opinion.
LAW AND ANALYSIS
A. Standard of Review
According to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court should dismiss
a complaint when it fails “to state a claim upon which relief can be granted.” In analyzing a motion
to dismiss under Rule 12(b)(6) the court will “accept all factual allegations as true, construe the
Defendants’ brief in support of its motion to dismiss (D.E. 134) will be referred to as “Def. Br.”
Plaintiffs’ brief in opposition (D.E. 141) will be cited as “P1. Op.” Defendants’ reply brief(D.E.
143) will be referred to as “Def. Reply.”
complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County. ofAllegheny,
515 F.3d 224, 231 (3d Cir. 2008). In addition to the complaint, the Court may also consider any
exhibits attached thereto. See Pension Ben. Guar. Corp. v. White Consol. Indtts., Inc., 998 f.2d
1192, 1196 (3d Cir. 1993) (noting that when deciding a motion to dismiss, courts generally
consider “the allegations contained in the complaint, exhibits attached to the complaint and matters
of public record”). To survive dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 67$
(quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Determining whether a complaint
is plausible is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. While not a “probability requirement,” plausibility
means “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 67$. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court, however,
is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 f.3d 187, 211 (3d Cir. 2007).
B. 42 U.S.C. § 1983 and NJCRA claims Against Defendants,
Hablitz, cannon, Fuicher, and Lamolino
Defendants argue that Counts One through Four against Defendants Hablitz, Cannon,
fuicher, and Lamolino should be dismissed as barred by the statute of limitations. Def. Br. at 1315.
Plaintiffs counter that the claims against Defendants Hablitz and Cannon should not be
dismissed because they waived the statute of limitations defense as to these claims which were
originally alleged in the Natsis I Litigation. P1. Op. at 23-28. The Court finds that the claims
against Fuicher and Lamolino are barred by the statute of limitations but the claims against Hablitz
and Cannon are not.
Generally, “statute of limitations is an affirmative defense not routinely decided on a
motion to dismiss.” Abdul-Aziz v. Lanigan, No. 14-2026, 2016 WL 1162753, at *4 (D.N.J. Mar.
24, 2016). There is an exception, however, if “the plaintiffs tardiness in bringing the action [is]
apparent from the face of the complaint.” W Penn Allegheny Health Svs., Inc. v. UPMC, 627 F.3d
85, 105 n.13 (3d Cir. 2010) (quotingRobinson v. Johnson, 313 F.3d 128, 135 & n.3 (3d Cir. 2002)).
“The statute of limitations for any
1983 claim is the fontm state’s limitations statute for personal
injury actions.” Levine v. N.J State Dep ‘t ofCmty Affairs, 231 Fed. App’x 125, 127 (3d Cir. 2007)
(citing Wi/son v. Garcia, 471 U.S. 261, 266—67 (1985)). New Jersey has a two-year statute of
limitations period for personal injury actions, and therefore the Third Circuit has adopted the same
two-year period for Section 1983 actions brought in New Jersey. Id. Similarly, a two-year statute
of limitations applies to claims brought pursuant to the NJCRA. Citta v. Borough ofSeaside Park,
No. 09-865, 2010 WL 3862561, at *10 n.3 (D.N.J. Sept.27, 2010) (collecting cases and concluding
that two-year statute of limitations applies to NJCRA claims).
Plaintiffs’ claims against Defendants Fuicher and Lamolino arise out of events that
occurred several years before the filing of the initial complaint, which was filed on December 3,
2013. See D.E. 1. Thus, to avoid being time-barred by the two-year statute of limitations period,
Plaintiffs’ claims must have arisen on or after December 3, 2011. Pursuant to the unequivocal
allegations in the SAC, the most recent claim as to Defendant Fuicher was in September 2008.
SAC ¶ 332. The most recent allegation as to Defendant Larnolino occurred on February 2, 2004.
191. Plaintiffs’ Section 1983 and NJCRA claims (Counts One through Four) against
Defendants Fulcher and Lamolino are therefore time-barred by the two-year statute of limitations.
These claims are dismissed with prejudice.
The events giving rise to the Section 1983 and NJCRA claims against Cannon and Hablitz
occurred on February 6, 2002 and January 28, 2004, respectively. Id. at ¶ 154, 186. While these
claims would normally be barred by the statute of limitations, Hablitz and Cannon waived any and
all statute of limitations defenses in a stipulation for voluntary dismissal without prejudice, filed
on December 13, 2004 in the Natsis I Litigation. D.E. 123-2 (stating that Defendants Hablitz and
Cannon “agree to waive any and all statute of limitations defenses”); see also Slut v. Wang, No.
CV 10-5302, 2016 WL 6080199, at *9 (D.N.J. Oct. 17, 2016) (recognizing that statute of
limitations defense may be waived by agreement). Critically, the statute of limitations waiver did
not contain any time constraint indicating the duration of the waiver. Plaintiffs therefore argue
that the Court should not dismiss the claims against these Defendants. P1. Opp. at 23.
In her opinion, Judge Cecchi dismissed the Section 1983 and NJCRA claims with respect
to Defendants Hablitz and Cannon without prejudice because Plaintiffs failed to adequately plead
that the facts alleged as to Hablitz and Cannon in the Natsis I Litigation are the same as those
brought in this action. J. Cecchi Op. at 9. To remedy this deficiency, Plaintiffs filed the amended
complaint from the Natsis I Litigation as an exhibit to the SAC. The Natsis I Litigation complaint
demonstrates that the originally pleaded facts against Hablitz and Cannon are the same as those
alleged in the SAC. Specifically, Plaintiffs claim in both the Natsis I Litigation complaint and the
SAC that Defendant Cannon “falsely” arrested Plaintiff Konstantinos on February 6, 2002. D.E.
123-1, Count 12,
¶JJ 1—4; SAC ¶ 154. Plaintiffs also allege in both complaints that Defendant
Hablitz “falsely” arrested Plaintiff Konstantinos on January 28, 2004. D.E. 123-1 Count 15,
4; SAC ¶ 186-189. Since the claims from the Natsis I Litigation and those asserted here arise from
the same set of facts, Plaintiffs have made a threshold showing that Defendants Hablitz and Cannon
waived any and all statute of limitations defenses.5 The motion to dismiss Count One through
Four is denied as to these Defendants.
C. Plaintiffs’ Retaliation Claims
Defendants move to dismiss Plaintiffs’ retaliation claims (Counts One through Four) of the
SAC against Mayor Turner in his personal and official capacity under 42 U.S.C.
§ 1983 and the
NJCRA. Plaintiffs allege that Defendants retaliated against them for failing to politically support
Mayor Turner and for exercising their right to free speech under the Federal and State
“In order to plead a retaliation claim under the First Amendment, a plaintiff must allege:
(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir.
2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003)).
“The key question in
detennining whether a cognizable First Amendment claim has been stated is whether the alleged
retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First
(citing AfcKee v. Hctrt, 436 F.3d 165, 170 (3d Cir. 2006)) (internal
quotation marks omitted); see also Craw/brd-El v. .Britton, 523 U.S. 574, 588 n.l0 (199$) (“The
reason why such retaliation offends the Constitution is that it threatens to inhibit exercise of [a
constitutionally] protected right.”).
This Opinion does not conclusively find that the waiver was in fact valid and enforceable.
Instead, the Court finds that for purposes of the current motion, Plaintiffs have made a sufficient
threshold showing that Defendants Habuitz and Cannon waived the statute of limitation.
1. Mayor Turner in his Personal Capacity
To sue a government official in his or her personal capacity in a civil rights action, the
official “must have personal involvement in the alleged wrongdoing; liability cannot be predicated
solely on the operation of respondeat superior. Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Deltarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988)). “[A] civil rights complaint is adequate where it states the conduct, time, place, and
persons responsible.” Id. (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d
Here, Defendants argue that Plaintiffs have not alleged sufficient facts to show that Mayor
Turner was personally involved in any retaliation against Plaintiffs. Def. Br. at 18. Defendants
note that the only specific claim as to Mayor Turner is that he contacted the HEPSCD in January
2013 and discussed Plaintiffs’ property. Def. Reply at 9 (citing SAC
complaint must allege “more than labels and conclusions” of personal involvement, Defendants
argue that the Court should dismiss the retaliation claims against Mayor Turner in his personal
capacity. Id. (citing Twombly, 550 U.S. at 555.).
Plaintiffs argue that Mayor Turner’s phone call to HEPSCD in January 2013 regarding
Plaintiffs’ property was evidence of retaliation for, among other things, their refusal to support
Mayor Turner’s administration, filing the Natsis I Litigation, reporting local government officials
to the media, and directly complaining to government officials. P1.
Opp. at 31; SAC ¶ 399, 439.
Plaintiffs contend that on January 22, 2013, as a result of Mayor Turner’s phone call, HEPSCD
revoked Plaintiffs’ permit to removing more than 3,600 square feet of soil and fallen rocks from
their property, and ordered Plaintiffs to stop all activity or otherwise face a $3,000 per day fine.
Plaintiffs meet the first required element for retaliation.
Refusing to support Mayor
Turner’s administration, filing the Natsis I Litigation against the Weehawken Defendants,
reporting local government officials to media sources, and complaining directly to government
officials are constitutionally protected actions under the First Amendment. See Bradshaw v.
Township of Middleton, 296 F. Supp. 2d 526, 546 (D.N.J. 2006) (stating that “[t]he First
Amendment guarantees ‘the right of the people
to petition the Government for redress of
grievances” and that citizens have the right to be free from government retaliation for exercising
this right). However, Plaintiffs fail to meet the second element. While they allege that Mayor
Turner retaliated against them by calling HEP$CD, they do not allege that Mayor Turner’s phone
call caused them to be fearful of exercising their First Amendment rights. See Reed v. Scheffler,
No. 11-6423, 2016 WL 6440115, at *4 (D.N.J. Oct. 28, 2016) (dismissing a First Amendment
retaliation claim because plaintiff failed to allege that he was fearful of exercising his rights after
the alleged retaliation took place). Plaintiffs therefore fail to plausibly plead a necessary element
in First Amendment retaliation claims.
Plaintiffs also do not meet the third element of the claim because they fail to establish a
causal link between the alleged protected conduct
refusing to politically support Mayor Turner’s
administration, filing the Natsis I litigation, reporting government officials to media sources, and
direct complaints to government officials
and the alleged retaliatory action, Mayor Turner’s
phone call to HEPSCD. Plaintiffs do not allege any facts to suggest that engaging in the protected
conduct was the reason that Mayor Turner made the phone call to HEPSCD. In fact, the SAC
alleges that Mayor Turner made the phone call because he felt that HEPSCD’s “issuance of the
permit would delay court proceedings.” SAC
¶ 397. Yet, the SAC fails to indicate the court
proceedings at issue. More importantly. such a statement apparently indicates that the Mayor did
not wish to prolong some unknown court proceedings. The statement does not indicate that the
Mayor wished to retaliate against Plaintiffs because of the court action.
Simply stating that the
phone call was a retaliatory act is not enough to establish a plausible claim. Twombly, 550 U.S. at
545 (finding a complaint “requires more labels and conclusions, and a formulaic recitation of a
cause of action’s elements will not do”).
For those reasons, Counts One through Four are dismissed with prejudice6 against Mayor
Turner in his personal capacity.
2. Mayor Turner in his Official Capacity
Defendants further argue that the claims against Mayor Turner in his official capacity
should be dismissed because Plaintiffs fail to plead sufficient specific facts alleging that Mayor
Turner violated their constitutional rights. Def. Br. at 1$—i 9. In contrast to personal capacity suits
under Section 1983, official capacity suits “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Kentttckv v. Graham, 473 U.S. 159, 165
(1985) (emphasis added) (citing Mane/i v. New York City Dept. of Soc. Servs., 436 U.S. 65$, 690
n.55 (197$)). A lawsuit against government officials in their official capacity is for all intents and
purposes a suit against the officials’ office. Brandon v. Hoit, 469 U.S. 464, 471 (1985). To prove
liability by a municipality in an official capacity suit, “the entity’s ‘policy or custom’ must have
played a part in the violation of federal law.” Moneli, 436 U.S. at 690—691. However, that policy
To the extent Judge Cecchi previously dismissed claims without prejudice, and the claims are
still defective, the Court is dismissing them with prejudice because Plaintiffs have not indicated
that they will be able to cure the deficiencies through another amended pleading.
and custom need not have “received formal approval through the body’s official decisionmaking
channels.” Id. 694. A plaintiff therefore cannot bring an action against government officials in
their official capacity for a single alleged wrongful act, or even a pattern of alleged wrongful acts
if they commit those acts alone. See Id.
Here, Plaintiffs failed to allege specific conduct as to Mayor Turner to demonstrate a
“policy or custom” of retaliatory conduct. As noted above, the only allegations particular to Mayor
Turner is the lone phone call to HEPSCD that he allegedly made to retaliate against Plaintiffs.
Plaintiffs’ remaining allegations state in broad, sweeping language that “Defendants” (as opposed
to Mayor Turner specifically) retaliated against Plaintiffs for lack of political affiliation and to
suppress their first Amendment rights. Such allegations do not plausibly allege a policy or custom
of retaliatory conduct against Mayor Turner.
Therefore, Counts One through Four of the SAC are dismissed with prejudice as to Mayor
Turner in his official capacity.
U. False Arrest
Defendants argue that Plaintiffs’ claims for false arrests in 2002, 2004, and 2009 should be
dismissed as barred by the statute of limitations. A claim for false arrest is governed by a two
year statute of limitations. Clarke v. New Jersey State Police, No. 03-3240, 2007 WL 4554254, at
*3 (D.N.J. Dec. 20, 2007). The allegations pertaining to the 2002 and 2004 arrest by Defendants
Cannon and Hablitz, respectively, are not barred by the statute of limitations for the same reasons
discussed above in Section 111.3 (they waived the defense in the 2004 consent decree). The
allegations regarding the 2009 arrest, however, took place prior to the running of the limitations
December 3, 2011
and are barred by the statute of limitations.7
E. Abuse of Process
Plaintiffs allege two forms of abuse of process in Count Seven. Plaintiffs claim that
Defendants abused process by (1) falsely charging and prosecuting Plaintiff Konstantinos with a
criminal complaint for digging a twenty-foot trench on his neighbors’ property in violation of a
town regulation and (2) denying Plaintiffs building permits through the Weehawken building
permit application process.
As an initial matter, Plaintiffs fail to detail which particular Defendant(s) they are asserting
abuse of process claims against.
Plaintiffs simply allege wrongdoing by “Defendants”
collectively. This overbroad accusation does not plausibly state a claim against any particular
Defendant. However, even ignoring that pleading deficiency, Plaintiffs fail to allege sufficient
facts to state a claim for abuse of process.
1. Digging the Trench on Neighbor’s Property
Defendants argue that Plaintiffs failed to state a claim for abuse of process for falsely
charging and prosecuting Plaintiff Kostantinos for crimes related to digging a trench on his
neighbor’s property. Judge Cecchi dismissed Plaintiffs’ abuse of process claim for failing to plead
“any facts about an abuse of process occurring after Plaintiff Konstantinos Natsis was arrested.”
at 1$. Plaintiffs attempted to cure this deficiency by pleading that Elise Dinardo,
Esq., counsel for Defendants in this case, unexpectedly appeared as a special prosecutor against
Additionally, there are no allegations that Plaintiff Helen was ever arrested. Accordingly, Count
Five is dismissed with prejudice as to her.
Plaintiff Konstantinos in Bayonne
the venue where Plaintiff Konstantinos was being prosecuted
due to Weehawken’s conflict of interest.
A claim for “abuse of process is concerned with perversion of process after litigation has
Steffen, 574 F. App’x 156, 160 (3d Cir. 2014) (emphasis added) (internal
quotation marks omitted). In order to assert a claim for abuse of process, a plaintiff must allege
that “the improper use must be the primaly purpose of the proceeding and there is no action for
abuse of process when the process is used for the purpose for which it is intended, but there is an
incidental motive or spite or ulterior purpose of benefit to the defendant.” Id. The Appellate
Division has described abuse of proves as follows:
The gist of the tort is misusing or misapplying process justified in
itself for an end other than that which it was designed to accomplish.
The purpose for which the process is used, once it is issued, is the
only thing of importance. The essential elements of abuse of
process, as the tort has developed, have been stated to be: first, an
ulterior purpose, and second, a wil[l]ful act in the use of the process
not proper in the regular conduct of the proceeding. Some definite
act or threat not authorized by the process, or aimed at an objective
not legitimate the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry out
the process to its authorized conclusion, even though with bad
intentions. The improper purpose usually takes the form of coercion
to obtain a collateral advantage, such as the surrender of property,
by the use of the process as a threat or club. There is, in other words,
a form of extortion, and it is what is done in the course of
negotiation, rather than the issuance or any formal use of the process
itself, which constitutes the tort.
Garnbocz v. Ape!, 102 N.J. Super. 123, 128 (App. Div. 1968) (internal quotation marks omitted).
Here, Plaintiffs allege that Defendants abused process because DiNardo served as the
special prosecutor against Plaintiff Konstantinos regarding his arrest for digging the trench.
Plaintiffs allege this was abuse of process because DiNardo served as counsel for the town of
Weehawken in this case and his trial was removed to Bayonne because of Weehawken’s conflict
of interest. SAC
However, the only particular allegations set forth by Plaintiff pertain
to DiNardo, who is not a defendant in this matter. See Adams v. Sethorst, 779 F. Supp. 2d 378, 390
(D. Del.) (noting abuse of process claim should have been brought against prosecuting attorney as
opposed to arresting officers), aff’d sitb nom. Adams v. Officer Eric Selhorst, 449 F. App’x 198
(3d Cir. 2011). Plaintiffs other allegations of abuse of process reference “Defendants” generally
without the requisite level of plausibility. Therefore, Count Seven as to the prosecution of Plaintiff
Konstantinos is dismissed without prejudice.
2. Denial of Building Permits
Plaintiffs allege additional new facts in the SAC claiming that they submitted permit
applications to the Weehawken Building Department and that they have not received the permits
they applied for. SAC
469—73. Plaintiffs claim that “Defendants” abused the Weehawken
Building Department permit application process by intentionally and maliciously continuing to
obstruct their permit application process so that the Plaintiffs cannot clean, clear, and develop their
property. Id. Through the factual allegations, it can be inferred that there was a pattern by the
Weehawken Building Department that could be seen as a misuse or misapplication of the building
permit process. See Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1036 (3d Cir. 1988)
(holding that “abuse of process is the misuse or misapplication of the legal procedure in a manner
not contemplated by law” (internal quotation marks omitted). Importantly, however, Plaintiffs do
not specify which Defendants allegedly abused process with regards to the building permits.
Accordingly, the abuse of process claim as to the building permit applications is dismissed without
F. Civil Conspiracy Under 42 U.S.C.
In order to state a claim of conspiracy in violation of 42 U.S.C.
§ 1985(3) a plaintiff must
allege the following four elements:
(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
either injured in her person or property or deprived of any right or
privilege of a citizen of the United States.
United B/id. of Carpenters & Joiners ofAm., Local 610 AfL-CIO v. Scott, 463 U.S. 825, 828-29
Conspiracy must be motivated by “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” Id. Further, the Third Circuit
§ 1985(3) “does not provide a cause of action for individuals allegedly injured by
conspiracies motivated by discriminatory animus directed toward their political affiliation.”
Farber v. City of Paterson. 440 F.3d 131 (3d. Cir. 2006); see also Henry v. Jersey Cit Police
Dep ‘t, No. 14-5480, 2016 WL 1586875, at *7 (D.N.J. Apr. 20, 2016) (granting motion to dismiss
claim under Section 1985(3) when plaintiff failed to allege conspiracy was motivated by race or
Plaintiffs allege in Count Ten that Defendants retaliated against them to “humiliate them
so they would leave their property.” SAC
¶ 498. This claim was dismissed by Judge Cecchi
because it was based on Plaintiffs’ political affiliation, and not based on any other racial or
otherwise class-based animus, as required by law. In the SAC, Plaintiffs fail to allege any new
facts that the conspiracy claim was related to racial or any other class-based animus. Plaintiffs do
not contest Defendants’ position in their opposition papers. Therefore, Count Ten is dismissed
For the reasons discussed above, Counts One through Five are dismissed as to Defendants
Fuicher and Lamolino with prejudice. Counts One through four are dismissed with prejudice as
to Mayor Turner in his personal and official capacity. Count five is dismissed with prejudice as
to Plaintiff Helen Natsis. Count five is also dismissed as to Plaintiff Konstantinos’ arrest that took
place in 2009.
Count Seven is dismissed without prejudice.
Count Ten is dismissed with
prejudice. All Counts as to Defendants Same and Johnson are dismissed without prejudice.
Plaintiffs have thirty (30) days from the date of this Opinion to file an amended complaint, if they
so choose, as to the Counts or Defendants dismissed without prejudice, consistent with this
Opinion. An appropriate order accompanies this opinion.
Dated: March 10, 2017
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