SOUTHWARD et al v. ELIZABETH BOARD OF EDUCATION et al
OPINION. Signed by Judge Kevin McNulty on 10/2/2017. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CARMEN SOUTHWARD and KRISTIN
ELIZABETH BOARD OF EDUCATION,
OLGA HUGELMEYER, individually
and in her official capacity as
Superintendent, PABLO MUNOZ,
individually and in his official
capacity as former Superintendent,
HAROLD KENNEDY, JR., individuaily
and in his official capacity as Board
Secretary, DONALD GONCALVES,
individually and in his official
capacity as Assistant Board
Secretary, RAFAEL FAJARDO,
individually and in his official
capacity as board member,
FRANCISCO GONZALES, individually
and in his capacity as board member,
PAUL PEREIRA, individually and in
his capacity as board member,
CARLOS TRUJILLO, individually and
in his capacity as board member,
individually and in her capacity as
board member, TONY MONTEIRO,
individually and in his capacity as
board member, OSCAR OCASIO,
individually and in his official
capacity as Director of Process
Improvement, and JOHN DOES 1-10,
Civ. No. 15-3699 (1CM)
MCNULTY, District Judge:
This matter comes before the Court upon defendants’ motion (ECF no.
52)’ to dismiss the second amended complaint under Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED in
part, and DENIED in part.
This complaint joins together the claims of two employees of the
Elizabeth public school system who were dismissed in June 2014. Their
supporting facts are summarized separately.2
A. Southward’s Factual Allegations
Plaintiff Carmen Southward was first employed by defendant Elizabeth
Board of Education (the “Board”) in 2006 as a world language teacher. (2AC
¶ 22). In July 2008, she was transferred to the Human Resources Department,
where she worked as a staffing assistant. (Id. 1 24). In July 2009, she was
promoted to Interim Supervisor for Recruitment and Hiring. (Id. ¶ 26). In
December 2009, she was appointed as the District’s Affirmative Action Officer,
a position that was added to her existing responsibilities. (Id.
Southward claims that in 2010 and 2011, during her time as a
supervisor in the Human Resources Department, she reported misconduct by
Director of Education Daphne Marchetti. Her alleged whistleblowing consisted
of reporting that Marchetti did not possess the required state certifications to
Citations to the record are abbreviated as follows:
First Amended Complaint (ECF no. 26)
Second Amended Complaint (ECF no. 49)
Brief in Support of Defendants’ Motion to Dismiss (ECF no. 52)
Brief in Opposition of Defendants’ Motion to Dismiss (ECF no. 56)
I take the factual allegations of the complaint as true for purposes of resolving a
motion to dismiss. See Section II, infra. and cases cited.
work as either a teacher or an administrator (Id.
28-30); that Marchetti had
a secretary in the Human Resources Department reload all of her vacation days
34-35); and that Marchetti allegedly forged
back into the system (Id.
documents that extended her maternity leave. (Id.
46). During this 2010—11
period, Southward also objected to defendant Rafael Fajardo’s request to hand
out political pins at interviews of new candidates (Id.
48); refused to approve
the hiring of a Board-backed, non-tenured candidate because there were other
tenured candidates on the hire list (Id.
paperwork for Fajardo. (Id.
42); and refused to alter employment
Southward alleges that her whistleblowing, defined to include refusal to
cooperate with improper conduct, led to retaliation. In 2010 and 2011,
(i) defendant Pablo Munoz, who was then the Superintendent, told her to stop
reporting about teacher-credential issues and undermined her job functions by
limiting her ability to recommend personnel actions related to transfers, new
hires, and non-renewals (Id.
37-38); (ii) defendant Donald Goncalves
contacted her at home to warn her that things would get “ugly” because she
had reported Marchetti’s violations (Id.
59); and (iii) defendants Fajardo and
Munoz pulled Southward’s boss into a car to discuss their suspicion that
Southward had gone to the FBI. (Id.
53). Fajardo and Munoz said they
planned to transfer Southward until she was miserable and then fire her so
“she wouldn’t have a claim.” (Id.). Also during this period, (iv) Munoz asked,
during a cabinet meeting, if anyone wanted to address the serious concerns
with Southward’s handling of the vacancies in Elizabeth’s schools (i.e.,
Southward’s refusal to hire the Board members’ preferred candidates) (Id.
¶‘j 54-56); (v) Southward received a written letter of reprimand related to the
vacancy issues raised at the meeting (Id.
57); (vi) Southward received, for the
first time, a negative performance evaluation from her supervisor (Id.
(vii) in February 2011 Southward was demoted from her position as Supervisor
of Human Resources and transferred from the main office to School 28 (Id.
60-62); (viii) Goncalves met with Southward again and told her there is “still
going to be a place for you as long as you let some things go” and “be careful”
63-66); and (vbc) in June 2011 she was transferred out of Human
Resources to the Food Services Department. (Id.
In her new position as Interim Supervisor of Food Services, she learned
that some board members, teachers, and administrators were receiving free
meals from the federal school lunch program, thus diverting resources meant
to help feed low-income students. (Id.
78). In the summer of 2011, Southward
reported the abuse of the federal school lunch program to the Union County
Prosecutor, the New Jersey Office of the Attorney General, and the Federal
Bureau of Investigation (“FBI”). (Id.
80). She met with law enforcement
officials through the rest of 2011, 2012, and 2013, and reported additional
violations of the Board’s personnel policies and the use of paid time for political
In July 2013, Southward heard secondhand that the defendants were
aware she had been speaking to the FBI. (Id.
91). In April 2014, Southward
was notified that Fajardo had obtained a copy of notes from her FBI interview.
93). She was told by Fajardo’s political consultant and her boss that the
Board was “furious” that she had communicated with the FBI. (Id.
Additionally, “throughout the course of her employment,” Southward was
pressured to engage in political activities. (Id.
225). She was “subjected to
demands for financial contributions to the political campaigns of Defendant
Board Members through the required purchase of tickets to political
fundraising events.” (Id.). Defendant Trujillo also “pressured” her to participate
in phone banks for campaigns. (Id.
226). Southward “made contributions of
time and money to Defendant Board Members’ political campaigns because it
was threatened that she would be terminated if she didn’t.” (Id.
On June 12, 2014, the Board met and unanimously approved
administrative leave with pay for Southward. (Id.
102). She was notified the
next day that she would be terminated effective June 30, 2014. (Id.
the Board’s June 19, 2014 meeting, the Board voted officially to terminate
Southward’s employment. (Id.
104). For the two weeks remaining in her
employment, Southward was sent to what was colloquially known as the
“rubber room,” where she remained in “isolation” without a phone or computer.
(Id. ¶j 110-12).
B. Kulick’s Factual Allegations
Plaintiff Kristin Kulick was the Board’s Director of Special Projects
beginning in August 2009. (Id.
122). First, she objected to several issues
about the Communications Department. Kulick reports that there were four to
six employees who worked solely on public-relations tasks for the Board in
violation of the district’s accountability regulations. (Id.
Kulick received a voicemail asking about the communications department,
defendant Goncalves insisted she not tell the person that there even was a
Communications Department; he reminded her that the records showed that
these employees worked in other departments. (Id.
Ms. Kulick also objected to defendant Goncalves that administrative
publications were not sent periodically, but were sent in “multiple blasts
inappropriately timed with the election cycle.” (Id.
136). She also objected
that Goncalves required that only pictures of Board members be on the front
page of the publications. (Id.
In the spring of 2010, Kulick raised concerns that her co-worker Amy
Qomes, the fiancée of defendant Tony Monteiro, was arriving to work late and
sometimes visibly intoxicated. (Id.
127). Kulick informed Karen Murray, then
the Director of Human Resources (who happens to be Kulick’s sister), about
Gomes’s conduct. (Id.
129-3 1). Murray raised concerns about promoting
Gomes, after which Murray was placed on administrative leave and was
ultimately terminated. (Id.
130). Afterward, defendant Goncalves told Kulick
that her sister’s termination “doesn’t have to affect you, unless you want it to.”
131). Kulick interpreted this as a threat. (Id.).
In May 2013, Kulick was told to purchase tickets at a fundraiser for
hundreds of dollars. (id.
¶ 132). She objected that “this was done as a direct
threat [andj that her job was tied to her contribution.” (Id.). In 2013 and 2014,
Ms. Kulick refused to buy tickets for politically connected charity events. (Id.
¶ 133). “Throughout her employment, including in 2014, Ms. Kulick was
continually required to make significant financial contributions to the political
¶ 134). Ms. Kulick then refused
to contribute time or money to Board-backed campaigns. (Id. ¶ 135).
campaigns of Defendant Board Members.” (Id.
Kulick also objected to defendant Oscar Ocasio’s employment with the
Board. She claims that Ocasio was given “a job with no responsibilities” so he
would get paid for full-time political work. (Id.
¶ 138-42). Ocasio also began
“showing up at Ms. Kulick’s meetings,” “leading meetings that were [Ms.
Kulick’s responsibility],” and took over her responsibilities with implementing a
new security system for the schools. (Id. ¶‘ 14 1-43).
In spring 2014, at a Director’s Association union meeting, Kulick raised
concerns that she and other Directors had not received the merit pay to which
they were entitled under a 2012 Memorandum of Agreement. (Id.
Defendant Ocasio told Kulick that he knew of an impending Human Resources
and cabinet staff meeting at which certain individuals were slated to be “let go.”
¶ 145). He warned Kulick that “she shouldn’t be asking questions like that
at th[isj time.” (Id.). Nevertheless, Kulick submitted a written request to
defendant Munoz that the Directors receive their merit pay. (Id.
¶ 150). Kulick
asserts that her employment was terminated in June 2014 in retaliation for
these activities. (Id. ¶jJ 15 1-52).
Kulick also asserts that she was punished for refusing to participate in
political activities. In support, she alleges that shortly after she was hired in
2009, Annie Rooney, defendant Munoz’s secretary, informed her that she was
expected to purchase tickets to the Board members’ political fundrthsers and
¶f 172-73). Out of fear, Kulick purchased tickets. (Id. ¶j 174-75).
Kulick alleges that she was harassed and forced to contribute time and
money to political campaigns, and that for a time she acquiesced. (Id.
176-80, 276). Specifically, Kulick alleges that she was “verbally intimidated
and threatened” by defendant Fajardo, who (although not a Board member at
the time) allegedly controlled new hires and ran many of the Board members’
political campaigns from his private business office. (Id.
Fajardo also left threatening voice messages to induce her to contribute more
to the campaigns of Board members. (Id. ¶ 188-9 1, 278). After Kulick refused
to purchase expensive tickets for a fundraiser, defendant Goncalves told her
during a June 2013 performance review that “none of us are safe.” She
perceived this statement as a threat to her job. (Id.
In September 2013, a Board-backed campaign led to the creation of a
non-profit charity, to which Kulick refused to contribute. (Id.
January 2014, Goncalves sent Ocasio to monitor Kulick’s meetings, with the
intent of intimidating her into changing her stance on fundraising issues. (Id.
¶j 202, 275). In May 2014, Kulick was told to pressure two school principals to
encourage their teachers and students to attend the Elizabeth Cuban Day
205). After a low turnout at the parade, Kulick was reprimanded
and harassed. (Id.
206-07). Thereafter, Kulick altogether stopped
contributing her time and money to Board-backed campaigns. (Id.
June 2014, Kulick was terminated from her position and replaced by Ocasio,
who was politically connected but had qualifications inferior to those of Kulick.
C. Procedural History
Plaintiffs initiated this action on June 2, 2015 (ECF no. 1). Jurisdiction
is premised on 28 U.S.C.
1331 (federal question), 1343(3) (federal civil rights
claims), and 1367 (ancillary jurisdiction over state law claims). On August 14,
2015, defendants moved to dismiss plaintiffs’ original complaint under Federal
Rule of Civil Procedure 12(b)(6). (ECF no. 6). The Honorable Esther Salas,
U.S.D.J., held oral argument on March 22, 2016, and stated reasons on the
record for her decision to dismiss the original complaint. (ECF no. 23). The
following day, Judge Salas entered an order granting Defendants’ motion to
dismiss the complaint without prejudice to the filing of an amended complaint
within 30 days. (ECF No. 24).
On April 21, 2016, the plaintiffs filed the first amended complaint. (ECF
No. 26). The causes of action pled in the first amended complaint were:
Count 1: New Jersey Conscientious Employee Protection Act (“CEPA”)
Count 2: CEPA (Kulick)
Count 3: 42 U.S.C.
§ 1983/First Amendment retaliation (Kulick)
Count 4: 42 U.S.C.
§ 1983/First Amendment retaliation (Southward)
Count 5: New Jersey Civil Rights Act (“NJCRA”) (both plaintiffs)
Count 6: New Jersey Racketeer Influenced and Corrupt Organization
Statute (“NJRICO”) (both plaintiffs).
On May 20, 2016, defendants filed a motion to dismiss the first amended
complaint under Rule 12(b)(6). (ECF No. 29-1). After the motion to dismiss was
fully briefed, it
administratively terminated pending reassignment. (ECF
no. 42). On January’ 5, 2017, the case was formally reassigned from Judge
Salas to me. (ECF no. 45), I reinstated the motion to dismiss and reviewed the
matter afresh, and decided the defendants’ motion.
Count 1 was dismissed regarding acts of retaliation before June 2, 2014
based on the statute of limitations. Counts 2, 4, and 6 were dismissed. Count 3
survived the motion to dismiss. Southward’s Count 5 claim was dismissed, but
Kuhck’s Count 5 claim survived. Southward v. Elizabeth Bed, of Educ., No. 153699, 2017 WL 111924 (D.N.J. January 11,2017); (ECFnos. 46-48).
On February 10, 2017, plaintiffs filed a second amended complaint.
(2AC, ECF no. 49). It amends and supplements the allegations, although the
causes of action in the six counts remain broadly the same. On March 17,
2017, defendants filed a motion to dismiss. (ECF no. 52). Plaintiffs filed a brief
in opposition of the motion to dismiss on April 25, 2017. (ECF no. 57).
Defendants submitted a reply brief on April 28, 2017. (ECF no. 58).
Legal Standards on Motion to Dismiss
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 Waflh
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 z.’. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to
provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiffs right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Sea’., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
it asks for more than a sheer possibility.” Iqbal, 556
U.S. at 678.
The United States Court of Appeals for the Third Circuit has explicated
the Twombly/Iqbal standard on several occasions. See, e.g., Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 70-73 (3d Cir. 2011);
Santiago v. WanninsterTwp., 629 F.3d 121, 129-30 (3d Cir. 2010). In doing so,
it has provided a three-step process for evaluating a Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U,S.} at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Levi, 696 F.3d 352, 365 (3d Cir. 2012).
“In deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached to the complaint, matters of the public record, as
well as undisputedl authentic documents if the complainant’s claims are
based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010); see also In re Asbestos Products Liability Litigation No. VIj, 822 F.3d
125, 134 & n.7 (3d Cir. 2016); Buck v. Hampton Twp. Sth. Dist., 452 F.3d 256,
260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider
documents that are attached to or submitted with the complaint, and any
matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, and items appearing in the
record of the case.”).
Claims Asserted by Southward
A. CEPA (Count 1)
Count 1, asserted by plaintiff Southward, brings a retaliation claim
under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.
§ 34:19-1 et seq. Southward’s allegations of retaliatory acts in
Count 1 fall into two distinct categories: (i) in 2010 and 2011, during her time
as Supervisor of Human Resources, she was subjected to harassment and
unwanted transfers (in retaliation for raising complaints related to personnel
policies and hiring preferences); and (ii) from June 13—30, 2014, she was sent
to the “rubber room” and ultimately discharged (in retaliation for providing
information to law enforcement).
This action was filed on June 2, 2015. As I explained in my earlier
opinion on the motion to dismiss the first amended complaint, Southward’s
Count 1 claims regarding acts of retaliation that occurred before June 2, 2014
are barred based on CEPA’s one-year statute of limitations. Southward, 2017
WL 111924, at *49 Those based on later acts, including Southward’s
termination in mid-June, 2014, are not barred. Defendants have not moved to
dismiss Southward’s timely Count 1 claims.
B. First Amendment and NJCRA (Counts 4, 5)
In Count 4, Southward asserts a claim of First Amendment retaliation
under 42 U.S.C.
§ 1983. In Count 5, Southward asserts a parallel claim under
Title 42, United States Code, Section 1983 reads:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
the analogous provisions of the New Jersey Constitution and the NJCRA.4 As
before, for simplicity I refer to Southward’s Section 1983 and NJCRA claims in
Counts 4 and 5 as her “First Amendment” claims. On the motion to dismiss the
first amended complaint, Southward’s First Amendment claims were
dismissed. Southward, 2017 WL 111924, at*1113.
In the second amended complaint, Southward’s First Amendment claims
have been supplemented, primarily by a claim of retaliatory discharge.
Defendants again move to dismiss Southward’s First Amendment claims on
statute of limitations and substantive grounds.
Southward now alleges that she engaged in protected First Amendment
conduct by “not always support[ingj the Board-backed political causes or
candidates or favored friends of the Board.” (2AC
219). She asserts that she
was “intimidated” into purchasing tickets for political fundraising events
“because her continued employment was dependent on her making
225, 227). Eventually, Southward stopped supporting
political organizations with her time and finances. (Id.
231). As a result of
these actions, she was (i) transferred in around February 2011 from her
The relevant portion of the NJCRA reads:
Any person who has been deprived of any substantive due process or
equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights.
privileges or immunities secured by the Constimtion or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person acting
under color of law, may bring a civil action for damages and for other
injunctive or other appropriate relief.
N.J. Stat. Ann. § 10:6-2(c).
The NJCRA was modeled on Section 1983, and New Jersey courts have
consistently looked at claims under the NJCRA “through the lens of 1983”; the two
are construed in parallel. Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J.
2012); Traflon u. City of Woodbung, 799 F. Supp. 2d 417, 443-44 (D.N.J. 2011);
Chapman u. New Jersey, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009) (“Courts
have repeatedly construed the NJCRA in terms nearly identical to its federal
position as Supervisor of Human Resources to a position with less authority
¶ 223); and (ii) terminated in June 2014.
Defendants argue that Southward’s “newly asserted” claim for retaliatory
discharge is untimely under the applicable two-year statute of limitations. They
add that her First Amendment claims are vaguely alleged, and fail to establish
a causal nexus between events in 2010—il and her discharge in 2014. (Def. Br.
9—10). I conclude that, to the extent they are timely, Southward’s First
Amendment claims fail to meet the plausibility standard of Twomb!y/Iqbal.
1. Statute of limitations
A two-year statute of limitations bars Southward’s First Amendment
claims insofar as they accrued before June 2, 2013. See Southward, 2017 WL
111924, at *12.43 I will not repeat the discussion in the earlier opinion except
to state that it applies equally to a retaliation claim, insofar as it is based on
Southward’s 2010—11 demotion. Id.
By contrast, however, Southward’s First Amendment retaliation claims,
insofar as they are based on her June 2014 dismissal, are not time-barred.
This action was filed in June 2015, well within two years of that dismissal.3
The remainder of the discussion concerns the claim in relation to retaliatory
acts surrounding Southward’s June 2014 dismissal.
2. Individual Liability
Regarding her First Amendment claims, Southward fails to allege specific
actions of individual defendants. Pleading the personal involvement of each
defendant is necessary in a civil rights action. A defendant in a civil rights
Here, as in the case of the CEPA claims, defendants argue that the relevant date
of filing is not the date of the original complaint, but the date of the second amended
complaint, which was not filed until February 10, 2017. The new allegations in Counts
4 and 5, they say, do not relate back to the date of the original complaint or the first
amended complaint. Because I have dismissed Southward’s First Amendment claims
on substantive grounds, see infra, I do not reach that issue. See generally Qlover ii.
FDIC, 698 F.3d 139, 145-46 (3d Cir. 2012).
action “must have personal involvement in the alleged wrongs to be liable,” and
“cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved.” Baraka u. McGreevey, 481 F.3d 187, 210
(3d Cir. 2007) (citations omitted). To establish personal liability under Section
1983, a plaintiff must show that a defendant (i) “participated in violating” the
plaintiffs rights; (ii) “directed others to violate” the plaintiffs rights; or, (iii) as a
supervisor, “had knowledge of and acquiesced in [his or her] subordinates’
violations.” Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
That requirement of alleging personal involvement interlocks with the
Twombly/Iqbal requirement that a claim as pled must be “plausible on its
face.” Bell Atl. Corp. u. Twombly, 550 U.S. 544, 570 (2007). That standard is
met only if “the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Here, in Counts 4 and 5, Southward does not allege factual content
suggesting that individual defendants violated her First Amendment rights or
retaliated against her for exercising her First Amendment rights. Southward
has set forth several conclusory allegations, but they are not supported by
factual content. In her non-time barred allegations, Southward asserts that she
“did not always support the Board-backed political causes or candidates or
favored friends of the Board” and, as a result, was “harassed and subjected to a
hostile work environment.” (2AC
219). She purportedly was “subjected to
demands for financial contributions to the political campaigns for Defendant
Board Members through the required purchase of tickets to political
fundraising events.” (Id.
225). She claims “her continued employment was
dependent on her making contributions.” (Id.
225, 227). But these
allegations do not provide defendants with individual notice of Southward’s
legal claims. The most specific allegation Southward makes—in which the
relevant defendant is at least identified—is that defendant Tmjillo “pressured
Ms. Southward to participate in phone banks for the Board Member
Defendants’ campaigns.” (Id.
222, 226). This allegation alone, tvithout any
further specific facts, does not adequately allege a First Amendment violation.
3. Causal nexus
Because earlier acts of retaliation are time-barred, Southward must
establish a causal nexus between her exercise of First Amendment rights and
her retaliatory dismissal in June 2014. The trouble is that the only acts
adequately alleged—La, attributed to a particular defendant and described
factually—date from 2010—11. The second amended complaint fails to allege
plausibly that there is a causal nexus between the 2010—11 acts and the 2014
To plead a retaliation claim under the First Amendment, a plaintiff must
allege “a causal link between constitutionally protected conduct and the
retaliatory action.” Thomas a Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Southward does not adequately plead facts that suggest a link between the
only potential timely act of retaliation, the June 2014 dismissal, and
Southward’s exercise of First Amendment rights. Moreover, the temporal
distance between 2010—11 and 2014 does not suggest that Southward’s
dismissal was retaliation for First Amendment activities. Indeed, Southward’s
theory is that the Board retaliated against her for whistleblowing. For this
additional reason, Counts 4 and 5 fail to plead a First Amendment claim on
behalf of Southward.
Overall, Southward’s allegations in Counts 4 and 5 do not meet the
Twombly/Iqbal standard. The second amended complaint does not provide any
(a) non-time barred, (b) specific facts regarding (c) actions attributed to
particular defendants that (d) plausibly violated Southward’s First Amendment
rights or retaliated against her for exercising her First Amendment rights.
Therefore, Counts 4 and Count 5, insofar as they are asserted on behalf of
Southward, are dismissed.
Claims Asserted by Kulick
A. CEPA (Count 2)
Count 2 of the second amended complaint alleges CEPA violations on
behalf of plaintiff Kulick only. A CEPA claim has four essential elements: (1) the
employee reasonably believed the complained-of conduct was violating either a
law, rule, or regulation promulgated pursuant to law, or a clear mandate of
public policy; (2) she performed a tvhistleblowing activity; (3) an adverse
employment action was taken; and (4) the adverse employment action occurred
because of her whistleblowing activity. Clayton v. City of Ati. City, 722 F. Supp.
2d 381, 588-89 (D.N.J. 2010) (citing Dnvonar v. McDevitt, 828 A.2d 893, 900
In the second amended complaint’s CEPA count, Kulick alleges that she
was dismissed for three reasons: (a) she reported a coworker’s tardiness,
intoxication, and human-resources misconduct; (b) she complained that the
Board failed to make merit payments to Directors (including herself) that were
required by a memorandum agreement with the union; and (c) she stopped
contributing to Board-backed political and charitable campaigns.
The first amended complaint asserted a CEPA claim based on reasons (a)
and (b) only. (1AC
127-61). My earlier opinion dismissed Count 2 of the first
amended complaint for failure to state a claim. Southward, 2017 WL 111924,
1. Relation Back
Defendants assert that Kulick’s new assertion of ground (c) in the second
amended complaint is untimely, in that it does not “relate back” to her claims
in the first amended complaint. (Def. Br. 4-6).
Under Federal Rule of Civil Procedure 15(c), an amendment to a pleading
relates back to the date of the original pleading where “the amendment asserts
a claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Relation back is
structured “to balance the interests of the defendant protected by the statute of
limitations with the preference expressed in the Federal Rules of Civil
Procedure in general, and Rule 15 in particular, for resolving disputes on their
merits.” Clover v. FDIC, 698 F.3d 139, 145 (3d Cir. 2012) (citing Kmpski v.
Costa Conciere S.p.A., 560 U.S. 538, 550 (2010)). When an amendment relates
back, Rule 15(c) allows a plaintiff to avoid an otherwise-applicable statute of
limitations. Id. This encourages resolution on the merits, rather than on a
technicality. Id. At the same time, however,
Rule 15(c) endeavors to preserve the important policies served by
the statute of limitations—most notably, protection against the
prejudice of having to defend against a stale claim, as well as
society’s general interest in security and stability—by requiring
“that the already commenced action sufficiently embraces the
Id. (citing Nelson v. Cty. of Allegheny, 60 F.3d 1010, 1014-15 (3d Cir. 1995)).
Application of Rule 15(c)(l)(B) normally entails a “search for a common
core of operative facts in the two pleadings.” Bensel a Allied Pilots Ass’n, 387
F.3d 298, 310 (3d Cir. 2004). However, Rule 15(c) is not an “identity of
transaction test,” such as the rules governing claims or parties. 6A Wright &
Miller, Federal Practice and Procedure
1497 (3 ed. 2010). Rather, “it is
well-established that the touchstone for relation back is fair notice, because
Rule 15(c) is premised on the theon’ that ‘a party who has been notified of
litigation concerning a particular occurrence has been given all the notice that
statutes of limitations were intended to provide.” Glover, 698 F.3d at 146
(citing Baldwin Cty. Welcome Ctr. u. Brown, 466 U.S. 147, 149 n.3 (1984)).
The Third Circuit has provided guidance as to when amended complaints
“relate back” to original complaints:
[Ojnly where the opposing party is given fair notice of the general
fact situation and the legal theory upon which the amending party
proceeds will relation back be allowed. Conversely, amendments
that significantly alter the nature of a proceeding by injecting new
and unanticipated claims are treated far more cautiously.
Id. (internal quotation marks and citations omitted).
Defendants concede that that they were “on notice” of potential CEPA
liability for alleged retaliation regarding (a) Kulick’s reporting of a coworker’s
misconduct and (b) Kulick’s complaining that the Board failed to make merit
payments. (Def. Br. at 5). But newly-asserted ground (c) (discontinuing
contributions to Board-backed political and charitable campaigns), they say, is
distinct. As defendants see it, Kulick “now raises the distinctly different claim
that she blew an entirely different whistle
and that defendants retaliated
against her for that entirely different reason.” (Id.).
Although the first amended complaint did not raise ground (c) in
precisely that form, I think defendants overstate the case. In Count 2 of the
first amended complaint, for example, Kulick alleged that “[it] is a longstanding
policy and pattern of the Elizabeth Board of Education
contributions and favors in exchange for employment.” (IAC
¶ 105). In Count 4
of the first amended complaint, Kulick alleged that she “eventually stopped
contributing to Board-backed campaigns” and that, “ff]ollowing her lack of
contribution of her time and money,” she then was terminated from her
position. (1AC ¶jJ 155-57). In short, precisely the same ground was alleged,
albeit as a basis for First Amendment, as opposed to CEPA, retaliation. Those
earlier allegations, although they did not survive the earlier motion to dismiss,
placed defendants on fair notice of the essential facts and even the general
legal theory now asserted by Kulick: that defendants required political
contributions and terminated Kulick’s employment when she balked. I hold
that this claim, asserted as ground (c) of the second amended complaint’s
CEPA claim, relates back and is not barred by the statute of limitations. I
therefore go on to consider whether Count 2, including ground (c), states a
2. Sufficiency of Kulick’s Allegations
The version of Count 2 in the first amended complaint was dismissed
without prejudice for failure to state a claim. The question now before the
Court is whether the allegations of the second amended complaint have
remedied that deficiency. I consider separately the CEPA count’s three alleged
grounds for retaliation: (a) reporting a coworker’s misconduct; (b) complaining
that the Board failed to make merit payments to Directors; and (c) ending her
contributions to Board-backed political campaigns.
a. Reporting Gomes’s Alleged Misconduct
In the first amended complaint, Kulick failed to “plausibly suggest an
inference of causation” between Kulick’s reporting of Gomes’s tardiness and
intoxication in 2010 and her termination four years later in 2014. Southward,
2017 WL 111924, at *14. The first amended complaint did not plead, and the
circumstances did not plausibly suggest, an inference of causation. Id. The
second amended complaint does not add additional facts sufficient to bolster
any inference of causation. Therefore, Kulick’s reporting of Gomes’s
misbehavior will not sustain a CEPA claim.
b. Demanding Merit-Based Pay Based on Union Contract
The second component of Kulick’s CEPA claim is that she was fired
because she complained that the Directors did not receive agreed-upon merit
pay. I dismissed this component of Kulick’s CEPA claim in the first amended
complaint because it did not satisfy the first element of a CEPA claim: that the
whistleblowing employee reasonably believed the complained-of conduct was
violating either a law, rule, or regulation promulgated pursuant to law, or a
clear mandate of public policy. Southward, 2017 WL 111924, at *15. As a
matter of law, the plaintiff must establish an identifiable “law, or rule or
regulation promulgated pursuant to law,” N.J. Stat. Ann.
34:19-3c(1), or else
“a clear mandate of public policy concerning the public health, safety, or
welfare,” N.J. Stat. Ann.
34:19-3(c)(3); see Dzwonar, 828 A.2d at 900-01;
Mehiman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998). As the Supreme Court
of New Jersey has explained, “when a plaintiff brings an action pursuant to
[CEPAI, the trial court must identify a statute, regulation, rule, or public policy
that closely relates to the complained-of conduct” and “[tjhe trial court can and
should enter judgment for a defendant when no such law or policy is
forthcoming.” Dzwonar, 828 A.2d at 901.
As I explained previously, Kulick’s complaint that Directors were shorted
on their merit pay did not involve the unveiling of a public harm, or the
violation of a public policy or rule. Rather, this was a salary dispute between a
small group of employees and their employer. Southward, 2017 WL 111924, at
*14. The second amended complaint, like its predecessor, fails to identify a
specific statute, regulation, or public policy contravened by a shortfall in merit
pay. Therefore, Kulick’s CEPA claim, insofar as it is based on the merit pay
dispute, does not survive.
c. Retaliation for Discontinuing Political Contributions
Kulick also claims that she was terminated in June 2014 because she
stopped contributing to Board-backed political and charitable campaigns.
Regarding this claim, Kulick does plead the elements of a CEPA claim:
(1) She was “required” to contribute financially to political campaigns in
order to keep her job (2AC
132), and she could reasonably have believed that
this conduct was a violation of her First Amendment rights;
(2) She performed a whistleblowing activity by objecting to and refusing
to participate in this practice (2AC
(3) She was fired; and
(4) Her firing was a result of her failure to contribute to Board-backed
This claim is far from perfectly pled; for example, it suffers from the same
group-pleading defect that infects other counts, although not quite to the same
degree. Count 2 will be in peril if the wrongful acts of individual Board
members are not identified in discovery. Still, a CEPA claim is adequately
To summarize, Kulick’s CEPA claim is dismissed insofar as it rests on
alleged retaliation for reporting coworker misconduct and disputing merit pay.
The motion to dismiss is denied, however, as to a CEPA claim based on alleged
retaliation for stopping political contributions.
B. First Amendment and NJCRA (Counts 3, 5)
Kulick’s First Amendment claims survived the defendants’ motion to
dismiss the first amended complaint. Now, defendants assert that (i) the claims
for discrete acts of retaliation prior to June 2013 are time barred, and (ii) that
Fajardo was not a state actor.
1. Discrete Acts and the Statute of Limitations
There is a two-year statute of limitations for these First Amendment
claims. A claim accrues at the time of any act that is “discrete” and
independently actionable. See Southward, 2017 WL 111924, at *12 (discussing
continuing violation doctrine and discrete acts of First Amendment retaliation).
Defendants argue that any acts of retaliation concerning events from
2009 to May 2013, such as threats for refusing to contribute to political
campaigns, should be considered individually actionable events. (Def. Br. 7-8).
If these events are individually actionable, they would be barred by the twoyear statute of limitations. (Id.). Plaintiffs counter that these acts were not
“discrete,” but part of a “continuing violation” extending into the limitations
period. (P1. Br. 13).
My prior opinion discussed the manner in which the Supreme Court
established a “bright-line distinction between discrete acts, which are
individually actionable, and acts which are not individually actionable but may
be aggregated to make out a hostile work environment claim.” O’Connor, 440
F.3d 125, 127 (3d Cir. 2006). Claims based on discrete acts must be brought
within the statute-of-limitations period, which runs from the date of the
discrete act. Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)). Morgan identifies certain discrete acts: termination, failure to promote,
denial of transfer, refusal to hire, etc. Morgan, 536 U.S. at 114.
A plaintiff must take the bitter with the sweet here: Fairly minor acts can
be actionable under a First Amendment retaliation theory, but that means that
even fairly minor retaliatory acts will trigger the Morgan rule “that individually
actionable allegations cannot be aggregated.” O’Connor, 440 F.3d at 127. As
the Third Circuit has explained,
First Amendment retaliation claims are always individually
actionable, even when relatively minor. Even “an act of retaliation
as trivial as failing to hold a birthday party for a public employee,”
if “intended to punish her for exercising her free speech rights,”
may be actionable if under the circumstances it would be sufficient
to “deter a person of ordinary firmness” from exercising his or her
First Amendment rights.
Id. at 127-28 (citing Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000)
(citing Rutan v. Republican Pady, 497 U.S. 62, 76 n.8 (1990))). As a cause of
action for First Amendment retaliation results from “all but truly de minimis
violations,” each retaliatory action creates an independent claim that starts the
statute-of-limitations clock. Id. at 128 (citing Suppan, 203 F.3d at 234-35).
Because this action was filed on June 2, 2015, the relevant two-year
statute of limitations bars any First Amendment retaliation claim based on a
discrete act that occurred before June 2, 2013. As to them, the motion to
dismiss Count 5 (as it pertains to Kulick) and Count 3 is granted. The motion
to dismiss those Counts will be denied insofar as the claims rest on events
after June 2, 2013. Later acts, such as Kulick’s retaliatory termination in June
2014, remain actionable on a First Amendment retaliation theory.
2. Defendant Fajardo as a State Actor
Defendants argue that the Section 1983 and NJCRA claims against
defendant Fajardo arising out of conduct from June 2010 to May 2014 should
be dismissed. (Def. Br. 8). Since Fajardo was not a Board member during that
time period, they argue, he was “therefore not a state actor” and cannot be held
liable under Section 1983 or NJCRA. (Def. Br. 8-9).
Section 1983, of course, requires action under color of state law, and
that requirement is commonly met by an allegation that the defendant is a
state official or employee. But there is not always a bright-line distinction
between state employees and others for the purposes of Section 1983 liability.
“[Tjo act ‘under color of state law for
1983 purposes does not require that the
defendant be an officer of the State. It is enough that he is a willful participant
in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24,
27-28 (1980). Private parties can be state actors if they are “jointly engaged
with state officials in the challenged action.” Id.; see Athckes v. 5.11. Kress &
Co., 398 U.S. 144, 150-52 (1970) (finding plaintiff is entitled to relief under
Section 1983 against a private party if she can prove that the private party and
police officer “reached an understanding” to cause her arrest on impermissible
grounds). Whether or not a private person is a state actor under Section 1983
can be, under such circumstances, a “fact-bound inquiry.” Brentwood Acad. v.
Term. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001) (citing Lugar v.
Edmondson Oil Co., 457 U.S. 922, 939 (1982)).
The second amended complaint alleges that defendant Fajardo exercised
defacto Board authority, acting behind the scenes in concert with Board
members. (At the time of Kulick’s dismissal in 2014, he had become a Board
member.) Whether defendant Fajardo acted “under color of’ state law before he
joined the Board—to the extent it remains relevant, given the statute of
limitations bar—involves questions of fact not suitable for resolution on a
motion to dismiss.
The motion to dismiss Section 1983 and NJCRA claims against
defendant Fajardo is therefore denied, without prejudice to renewal of those
contentions in connection with summary judgment.
In Count 6 of their second amended complaint, Southward and Kulick
jointly assert a claim under NJRICO, alleging that defendants conducted the
affairs of the Board through a pattern of racketeering activity. As before, the
plaintiffs have failed to state a claim upon which relief can be granted. The
prior discussion is incorporated here; I only supplement it as necessary to
encompass the new allegations.
Pursuant to NJRICO, it is unlawful to be “employed by or associated with
any enterprise engaged in or activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the conduct of the enterprise’s
affairs through a pattern of racketeering activity or collection of unlawful debt.”
N.J. Stat. Ann.
2C:41—2(c). The elements of a claim under NJRICO are “(1) the
existence of an enterprise; (2) that the enterprise engaged in activities that
affected trade or commerce; (3) that the defendant was employed by or
associated with the enterprise; (4) that the defendant participated in the
conduct of the affairs of the enterprise; (5) that the defendant participated
through a pattern of racketeering activity; and (6) that the plaintiff was injured
as a result of the conspiracy.” Galicki v. New Jersey, No. 14-169, 2015 WL
3970297, at *7 (D.N.J. June 29, 2015).
The sixth (“as a result”) element is a statutory standing requirement that
undercuts much of the basis for plaintiffs’ NJRICO claims. To establish
statutonr standing to institute a civil action under NJRICO, “it must be shown
that ‘plaintiffs harm was proximately caused by the NJRICO predicate acts
alleged, i.e. that there was a direct relationship between plaintiffs injury and
defendant’s conduct.” Interchange State Bank u. Veglia, 668 A.2d 465, 472 (N.J.
Super. Ct. App. Div. 1995) (citing First Nationwide Bank v. Cell Funding Corp.,
27 F.3d 763, 769 (2d Cir. 1994)); see also Holmes v. Sec. Inu’r Prot. Corp., 503
U.s. 258, 279 (1992) (“[Al RICO plaintiff only has standing if, and can only
recover to the extent that, he has been injured in his business or property by
[reason of] the conduct constituting the violation.” (internal quotation marks
Plaintiffs’ NJRICO claim alleges, in part, predicate acts of falsification of
records. Indeed, Southward’s NJRICO allegations relate almost exclusively to
acts such as falsification of records. (2AC
258-69). However, the complaint
does not allege any direct injury to plaintiffs “as a result of’ the defendants’
alleged falsification of maternity leave, school lunch, or vacation-time records.
Nor does any direct injury to Southward suggest itself; if anyone was
defrauded, it was the school district or the relevant federal program.
On the other hand, plaintiffs’ NJRICO claims also allege predicate acts of
bribery and extortion. These, it seems, would entail a direct injury to the extent
they were directed against a plaintiff. For example, plaintiffs allege that they
were extorted into spending their own money on Board-backed political
campaigns. Plaintiffs thus might possess statutory standing to assert NJRICO
claims based on such predicate acts of extortion.
Substantively, however, the allegations are inadequate. The second
amended complaint fails to provide each defendant with notice of his or her
alleged participation in a racketeering enterprise through criminal acts of
extortion and bribery. To satisfy the NJRICO pleading standard, plaintiffs must
provide each defendant with individual notice—by specflc factual allegations—
of his or her purported participation in the racketeering enterprise. See Qalicki
v. New Jersey, No. 14-169, 2015 WL 3970297, at *8 (D.N.J. June 29, 2015). I
explained this in connection with the dismissing the NJRICO count of the prior
first amended complaint:
I have indulged the plaintiffs in regard to specifying each individual
defendant’s involvement in the CEPA and First Amendment
claims.... As to NJRICO, however, that indulgence is stretched past
the breaking point. Here, each defendant’s participation cannot be
inferred from employer status and is not just a generic prerequisite
for liability; rather, it is woven into the substantive elements of
Southward, 2017 WL 111924, at *16. As I stated then, “NJRICO is a complex
statute which, by its very nature, necessitates a certain level of specificity in
pleading.” Id. at *17. Thus I required the plaintiffs to state the specifics of their
NJRICO claim. Id. After all, they are accusing the defendants of committing
crimes; it is not too much to ask that, consistent with civil pleading standards,
they reasonably identify the particular criminal acts involved.
Plaintiffs simply do not provide sufficient factual content to support a
reasonable inference that each defendant joined in and conducted the affairs of
an enterprise through the commission of predicate crimes—specifically,
bribery6 and extortion.7
Under New Jersey law, “A person is guilty of bribery if he directly or indirectly
offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept
a. Any benefit as consideration for a decision, opinion, recommendation, vote or
exercise of discretion of a public servant, party official or voter on any public
issue or in any public election; or
b. Any benefit as consideration for a decision, vote, recommendation or exercise of
official discretion in a judicial or administrative proceeding; or
c. Any benefit as consideration for a violation of an official duty of a public servant
or party official; or
d. Any benefit as consideration for the performance of official duties
N.J. Stat. Ann
Under New Jersey law, “A person is guilty of theft by extortion if he purposely
and unlawfully obtains property of another by extortion. A person extorts if he
purposely threatens to:
a. Inflict bodily injury on or physically confine or restrain anyone or commit any
other criminal offense;
b. Accuse anyone of an offense or cause charges of an offense to be instituted
against any person;
As for Southward, as I have said, the allegations relate almost exclusively
to acts such as falsification of records, as to which she lacks standing. What
remain are allegations such as the contention that defendant Board members
approached Southward “countless times” to purchase tickets “in exchange for
continuing employment.” (2AC
¶ 269). These allegations are simply too vague
and nonspecific to meet the Twomhly/Iqbal pleading standard as to the crime
As for Kulick, the NJRICO allegations of extortion and briber-v are more
direct, but still impermissibly nonspecific. Recall that a plaintiff must provide
each defendant with notice of his or her alleged participation in the
racketeering enterprise. Most of Kulick’s NJRICO allegations simply equate
ordinary political campaign fundraising with extortion. For example, Kulick
states that she was “routinely given flyers, tickets, emails, and other print
requests to purchase tickets to political fundraisers and to contribute to
¶ 277). She was “frequently called and emailed to
ask for help” on campaign work. (2AC ¶ 272). Such allegations fall short of a
political campaigns.” (2AC
plausible, factual presentation of the elements of predicate RICO criminal
offenses of extortion or bribery.
c. Expose or publicize any secret or any asserted fact, whether true or false,
tending to subject any person to hatred, contempt or ridicule, or to impair his
credit or business repute;
ci. Take or withhold action as an official, or cause an official to take or withhold
e. Bring about or continue a strike, boycott or other collective action, if the
property is not demanded or received for the benefit of the group in whose
interest the actor purports to act;
f. Testify or provide information or withhold testimony or information with respect
to another’s legal claim or defense; or
g. Inflict any other harm which would not substantially benefit the actor but
which is calculated to materially harm another person....”
N.J. Stat. Ann.
Kulick reverts to group denunciations and the passive voice, failing to
specify how individual defendants participated in a RICO enterprise, and failing
to connect their acts to the specific elements of the crimes of bribery or
extortion. Thus, she alleges that defendants as a group (“Fajardo and Monteiro
and other Defendant Board Members”) “sought” to commit extortion by “telling”
her to purchase tickets to a fundraiser. (2AC
272). Or Kulick relates
nonspecifically that she “complained” that she was threatened, without having
specifically established a threat. (2AC
132). No specific criminal extortionate
threat by any individual said to be a member of the racketeering enterprise is
Combing the rest of the complaint, I find no additional allegations
sufficient to lend substance to Kulick’s claims of bribery and extortion. In
2009, for example, Annie Rooney, defendant Munoz’s secretary (who is not a
defendant in the litigation), allegedly “told Ms. Kulick that she was expected to
purchase tickets to the Board members’ political fundraisers and events....”
173). There does not appear to be a “purposeful threat” or solicitation
“as consideration” for continued employment.
As to defendant Fajardo, Kulick makes somewhat more specific
allegations, and, at the motion to dismiss stage, I must accept them as true.
Defendant Fajardo allegedly told Kulick there were “no excuses” for failing to
contribute to his fundraising entity (2AC
271), left “intimidating voicemail
messages” on her home and cellular phone (2AC
intimidated and threatened” Kulick. (2AC
278), and “verbally
281). Still, even these allegations as
to Fajardo are general, suggesting that harassment occurred without providing
any factual content that would permit an inference that he conducted the
affairs of an enterprise through two or more distinct but interrelated criminal
acts of extortion or bribery.8
As I pointed out in the prior opinion at n. 13, the plaintiffs voluntarily dropped
their parallel claims under the federal RICO statute. No explanation appears, but one
of the consequences is that they have circumvented the requirement that they furnish
Therefore, I will grant defendants’ motion to dismiss Count 6, the
Claims Against Pablo Munoz
Defendants assert that the claims against Pablo Munoz should be
dismissed. Pablo Munoz, the former Superintendent, ended his employment in
October 2013, before the non-time-barred acts that form the basis of the
claims in Counts 1—5. (Def. Br. 7—9). Plaintiffs concede that the non-RICO
claims against defendant Munoz are time barred. Since I also have held that
the plaintiffs have not sufficiently pled a NJRICO claim in Count 6, the result is
that no claims against defendant Munoz remain.
Dismissal With Prejudice
An initial dismissal for failure to state a claim will ordinarily be entered
without prejudice to amendment. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). Accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)
(citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). In
keeping with that principle, my prior opinion dismissed portions of the first
amended complaint without prejudice. In a lengthy opinion, I instructed the
plaintiffs as to what a second amended complaint would have to allege in order
to survive a motion to dismiss. This is not a case in which facts and theories
are evolving or coming to light; rather, the plaintiffs have thrice been called
upon to plead with the requisite specificity facts that would naturally be known
to or ascertainable by them. The plaintiffs have now filed their second amended
complaint, but for the most part it fails to remedy the deficiencies of the first.
Plaintiffs have had ample opportunity’ to plead with the specificity required by
a RICO case statement. Such a statement imposes a duty of reasonable inquiry and
requires the plaintiff to specify in detail the who, what, when, where, and how as to
each RICO element. See D.N.J. Loc. Civ. R. 16.1(d)(4)&App’xO.
Since the plaintiffs have not sufficiently pled a NJRICO claim, I do not reach
certain other grounds asserted by the defendants. These include the question of
whether the Board can be both a NJRICO enterprise and a defendant.
Twombly and Iqbal. This time, my dismissal of portions of the second amended
complaint will be with prejudice.
Defendants’ Rule 12(b)(6) motion to dismiss the second amended
complaint is GRANTED in part and DENIED in part. For the reasons stated in
Section VII, supra, all dismissals are with prejudice.
The motion to dismiss Count 1 is granted only as to claims arising before
June 2, 2014; it is denied as to claims based on later events. The motion to
dismiss Count 2 is granted in relation to reporting Gomes’s alleged misconduct
and demanding merit-based pay; it is denied in relation to retaliation for
Kulick’s discontinuing her political contributions. The motion to dismiss Count
5 (in relation to Kulick) and Count 3 is denied. The motion to dismiss Count 5
(in relation to Southward) and Count 4 is granted. The motion to dismiss
Count 6 is granted. The result of the foregoing is that all claims against
defendant Munoz are dismissed.
For ease of reference, here are the claims that remain:
Count 1: CEPA (Southward), June 2, 2014 and later;
Count 2: CEPA (Kulick), June 2, 2014 and later (retaliation for
discontinuing contributions only)
Counts 3 and 5:
§ 1983 and NJCRA First Amendment retaliation
(Kulick), June 2, 2013 and later.
Dated: October 2, 2017
United States District Judg
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