DIAZ v. CITY OF PASSAIC et al

Filing 45

OPINION. Signed by Judge John Michael Vazquez on 1/28/2019. (sm)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD DIAZ,
Plaintiff,
Civil Action No. 16-9282
V.

CITY OF PASSAIC, et al,

OPINION

Defendants.

John Michael Vazguez, U.S.D.J.

The current matter comes before the Court on the motions to dismiss filed by (1) Gary
Schaer, Peter Rosario, and Zaida Polanco1 (collectively the “Individual Defendants”) (D.E. 32)

and (2) the unopposed motion of Alex Blanco (D.E. 39). Plaintiff Richard Diaz opposed the
Individual Defendants’ motion (D.E. 35), and the Individual Defendants filed a brief in reply (D.E.
39)2

The Court reviewed all the submissions in support and in opposition, and considered the

motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the
reasons stated below, the Individual Defendants’ motion is GRANTED and Blanco’s motion is
GRANTED IN PART and DENIED in part.

Defendant Polanco is improperly pled as Saida Polanco.
2

In this Opinion, Blanco’s brief in support of his motion to dismiss (D.E. 39-1) will be referred to
as “Blanco MTD” and the Individual Defendants’ brief in support of their motion to dismiss (D.E.
3 1-1) will be referred to as “Ind. Defs. MTD”. Plaintiffs brief in opposition to the Individual
Defendants’ motion (D.E. 35) will be referred to as “Plf. Br.” and the Individual Defendants’ reply
brief(D.E. 40) will be referred to as “Ind. Defs. Rep.”

I.

FACTUAL AND PROCEDURAL BACKGROUND3

This matter involves allegations that Plaintiff, the former Public Safety Director for
Passaic, New Jersey (the “City” or “Passaic”), was unlawfully removed from his position as
political retribution for his mayoral campaign. Plaintiff, a former officer and later chief of the
Passaic Police Department, became the City’s Public Safety Director in 2013. Am. Compi.

¶ 13.

Polanco is a council member with Passaic, Rosario is a commissioner on the City’s board of
education, Blanco is the former mayor of Passaic, and Schaer is the president of the City’s council.
Id.

¶ 8. Schaer is also allegedly the political “boss” of the City and “has defacto control over the

City government through political influence as City Council President and as a member of the New
Jersey Assembly, through his patronage power, and through his ability to influence State aid
decisions about and for the City.” Id.

¶ 9.

In September 2016, after a meeting with Defendants Schaer and Blanco, Diaz was placed
on administrative leave with pay. Id.

¶ 14. Plaintiff was suspended based on allegations that he

interfered with City personnel during an investigation into a sexual harassment complaint from a
City employee. Id.

¶J 14-15. Plaintiff contends that the charges against him are false.

Id.

¶ 22.

In fact, Plaintiff alleges that the sexual harassment investigation occurred in August 2016, when
Plaintiff was on vacation for “a majority” of the month. Id.

¶ 19.

Diaz was suspended “days after” he announced his candidacy for City mayor. After his
candidacy announcement, Defendants Rosario and Polanco “visited the Plaintiff as [sic] advised
that [Defendant Schaer] was not happy.” Id.

¶ 19. Prior to his suspension, Diaz never received

any written or verbal notice of the City’s intent to suspend him. In addition, the City failed to

facts are taken from the Amended Complaint, D.E. 19, for purposes of the current motions.
2

provide Diaz with a disciplinary hearing. Plaintiff allegedly remains on administrative leave and
has not received a formal disciplinary charge from the City. Id.

¶J 21-22.

On January 30, 2017, non-party Roy Bordamonte, a sergeant with the Passaic Police
Department, was summoned to Internal Affairs (“IA”) by non-party Detective John Rodriguez.
Bordamonte was present when Diaz announced his candidacy for mayor. Id.

¶J 23.

Bordamonte

was informed that he was a potential witness in an IA investigation about a police report that
Bordamonte had prepared and which was found in Plaintiffs desk afler the suspension. Id.

¶J 24-

25. On february 15, 2017, Bordamonte received a target letter from the IA alleging a minor rule
infraction for giving confidential information to a civilian. Plaintiff maintains that police reports
are not per se confidential and that he is not a civilian. Id.

¶J

26-27. Rodriguez purportedly

advised Bordamonte that the IA proceeding “was directed by ‘upstairs,” a euphemism within the
Passaic Police Department for the Mayor’s Office. Id.

¶J 26, 28.

On february 17, 2017, another

IA officer also told Bordamonte that the investigation was coming from the Mayor’s Office. Id.

¶

29. On March 21, 2017, Bordamonte received a revised target letter and a Preliminary Notice of
Discipline seeking his termination. Bordamonte’s termination was allegedly in retaliation for his
refusal to testify against Plaintiff as to Plaintiffs interference in the sexual harassment
investigation and for reporting efforts to coerce Bordamonte to give perjured testimony against
Plaintiff. Id.30.
Diaz filed suit in state court, alleging, among other things, 42 U.S.C.

§

1983 and 198$

claims against the City, John Doe, and ABC entities. The City removed the matter to this Court
on December 15, 2016. D.E. 1. On January 12, 2018, Diaz filed an Amended Complaint that

j

added Defendants $chaer, Blanco, Polanco and Rosario, among others.4 D.E. 19. The Amended
Complaint generally alleges that Defendants violated several of Plaintiffs constitutional rights.
Diaz alleges that Defendants’ actions were done in retaliation for his mayoral campaign. See
generally Am. Compl. To that end, the Amended Complaint asserts the following claims: (I)
procedural due process violation pursuant to 42 U.S.C.
process violation pursuant to 42 U.S.C.

§ 1983 and 198$; (2) substantive due

§ 1983 and 1988; (3) retaliatory and due process

violations under the New Jersey Civil Rights Act (“NJCRA”); (4) equal protection violation under
the NJCRA; (5) a Monell claim under the NJCRA; (6) request for injunctive relief against the City;
and (7) a claim for respondeat superior. Id.
Blanco filed an Answer to the Amended Complaint on January 23, 2018 (D.E. 22), then
filed his instant motion to dismiss pursuant to Rule 12(b)(6) on April 30, 201$ (D.E. 39). The
Individual Defendants filed their motion to dismiss on March 2, 2018. D.E. 31. The Individual
Defendants seek to dismiss the Amended Complaint in its entirety arguing that Plaintiff fails to
allege specific facts as to each Individual Defendant’s wrongful conduct, and also raise specific
issues regarding Plaintiffs procedural due process claim (Count One), substantive due process
claim (Count Two), equal protection claim (Count F our), and a Section 1985 claim (which does
not appear to be pled). D.E. 31.
II.

MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state a
claim upon which relief can be granted.” For a complaint to survive dismissal under the rule, it

Schaer and Polanco opposed Plaintiffs motion to file an amended pleading arguing that the
proposed Amended Complaint failed to state a claim upon which relief can be granted. D.E. 12.
In granting Plaintiff leave to amend, Judge Clark stated that the proposed Defendants’ arguments
were better suited for a motion to dismiss. Motion to Amend Opinion at 5, D.E. 1$.
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must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqba!,
556 U.S. 662, 678 (2009) (quoting Bet/At!. Corp.

i’.

Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “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. Although the
plausibility standard “does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a
result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will
uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMCShadvside, 57$ F.3d 203,210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of
truth. Burtch v. Mulberg factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” fowler, 578 f.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.” Tttrner e. IF. Morgan Chase & Co., No. 14-7148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
A Rule 12(b) motion must be filed before a responsive pleading. Fed. R. Civ. P. 12(b)
(“A motion asserting any of these defenses must be made before pleading if a responsive pleading
is allowed.”). A Rule 12(c) motion for judgment on the pleadings, however, maybe filed afier the
pleadings are closed. fed. R. Civ. P. 12(c). In addition, Rule 12(h) provides that the defense of
failure to state a claim may be raised through a Rule 12(c) motion for judgment on the pleadings
or a Rule 12(b)(6) motion to dismiss. Fed. R. Civ. P. 12(h). Courts apply the same standard when

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analyzing the defense of failure to state a claim for a Rule 1 2(b)(6) motion and a Rule 12(c) motion.
Ttirbe v. Gay ‘t of V.1., 938 F.2d 427, 428 (3d Cir. 1991).
Here, Blanco answered the Amended Complaint before filing his Rule 12(b)(6) motion.
As a result, Blanco’s motion is procedurally improper. But given that Blanco could simply re-file
the instant motion as a Rule 12(c) motion and because a Rule 12(c) motion for failure to state a
claim is reviewed under the same standard as a Rule 12(b)(6) motion, the Court will construe
Blanco’s motion as having been filed pursuant to Rule 12(c). See, e.g., Rivera v. Camden Bd. of
Edttc., 634 F. Supp. 2d 486, 488 (D.N.J. 2009) (construing motion to dismiss filed after answer as
a Rule 12(c) motion).
III.

LEGAL ANALYSIS
Plaintiff asserts claims pursuant to 42 U.S.C.

§ 1983 and the NJCRA, N.J.S.A. 10:6-2.

Section 1983, in relevant part, provides as follows:
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[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham

i’.

Connor, 490 U.S. 386, 393-94 (1989).

To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived him of a
federal right; and (2) the person who deprived him of that right acted under color of state or
territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,
2015).
The NJCRA provides a private cause of action to

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[a]ny 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 Constitution 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 injunctive or other appropriate relief.
N.J.S.A. 10:6-2. The “NJCRA was modeled after

§ 1983, [and so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of

§ 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v. ftientes, No.
15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation
omitted). Therefore, the Court considers Plaintiffs Section 1983 and NJCRA claims together.
1. Group Pleading

At the outset, the moving Defendants all argue that the Amended Complaint must be
dismissed because Plaintiff fails to plead sufficient facts demonstrating their individual
involvement in the purported wrongdoing. Mere “conclusory allegations against [d]efendants as
a group” that “fail[] to allege the personal involvement of any defendant” are insufficient to survive
a motion to dismiss. Galicki v. New Jersey, No. 14-169, 2015 WL 3970297, at *2 (D.N.J. June
29, 2015). A plaintiff must allege facts that “establish each individual {djefendant’s liability for
the misconduct alleged.” Id. When a number of defendants are named in a complaint, plaintiff
cannot refer to all defendants “who occupied different positions and presumably had distinct roles
in the alleged misconduct” without specifying “which defendants engaged in what wrongful
conduct.” Falat v. County ofHunterdon, No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar. 19,
2013) (emphasis in original). A complaint that contains “impermissibly vague group pleading”
will be dismissed. Id.

7

Here, Plaintiff falls far short of the requirement that he plead specific facts as to each
Defendant’s involvement in the alleged wrongdoing(s). Plaintiffs sole factual allegations as to
the moving Defendants are that:
(1)

Schaer is the “President of the City of Passaic Council”; Blanco is the
former mayor of the City, Polanco is a council member for the City; and
Rosario is a commissioner of the Board of Education for the City (Am.
Compi. ¶ 8);

(2)

Schaer is the political “boss” of the City and “has defacto control over the
City government through political influence as City Council President and
as a member of the New Jersey Assembly, through his patronage power,
and through his ability to influence State aid decisions about and for the
City” (Id. ¶ 9);

(3)

Plaintiff was placed on administrative leave “after a meeting with
Defendants, Schaer and Blanco” (id. ¶ 14); and

(4)

After the suspension, Defendants Rosario and Polanco “visited the Plaintiff
as [sic] advised that [Defendant Schaer] was not happy” about Diaz’s
mayoral run (Id. ¶ 19).

Thus, Plaintiff asserts essentially no facts under which the Court could even infer that
Blanco, Polanco or Rosario engaged in improper conduct. And while Plaintiff pleads that Schaer
is the political boss and was unhappy with Plaintiffs decision to run for mayor, this is not enough
to plausibly allege any wrongdoing. If Schaer is in fact the political boss of Passaic (as alleged)
and anyone ran against his wishes, the Court assumes that Schaer would not be happy. But the
Court cannot reasonably infer from such paltry factual allegations that Schaer actually took any
improper action vis-ã-vis Plaintiff. At best, the Amended Complaint pleads possible, not plausible
claims, as to Schaer. The allegations as to the other three Defendants are weaker. Therefore,
Defendants’ motions are granted on this basis and the Amended Complaint is dismissed in its
entirety as to the moving Defendants.

8

Although the group pleading deficiency is dispositive, Plaintiff’s pleading contains
additional defects which the Court will address because Plaintiff will be granted leave to amend.
2. Due Process Claims (Counts One through Three)

The Individual Defendants and Blanco seek to dismiss Plaintiff’s substantive due process
claims because Diaz fails to plead that he had a protectable property interest. md. Defs. MTD at
9-10; Blanco MTD at 3 1-32.
“Substantive due process is a doctrine reserved for egregious official conduct that trenches
upon the most fundamental of civil liberties.” Armbruster v. Cavanaugh, 410 F. App’x 564, 567
(3d Cir. 2011). Accordingly, “litigants face substantial burdens to show violations of substantive
due process.” Childress v. City of Orange Township, No. 14-4354, 2018 WL 1378722, at *13
(D.N.J. Mar. 19, 2018). For a substantive due process claim challenging the validity of nonlegislative state action, a plaintiff must first establish that he has a protected, fundamental property
interest. Greco v. Adult Diagnostic & Treatment Ctr., No. 05-3869, 2007 WL 4264544, at *3
(D.N.J. Dec. 3, 2007). For a property interest to be protected for the purposes of a substantive due
process claim it must be fundamental under the United States Constitution.

Nicholas v.

Pennsylvania State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000). Courts, however, “have not
recognized public employment as a fundamental right created by the Fourteenth Amendment,
which would trigger substantive due process protection.”

Greco, 2007 WL 4264544, at *3;

McLemore v. Lewis, 2011 WL 13042510, at *6 (Law Div. Mar. 3, 2011) (stating that there is no
substantive due process right to public employment under the NJCRA); see also Filgiteiras v.

Newark Pub. Sc/is., 426 N.J. Super. 449, 469-70 (App. Div. 2012) (“An employee hired at will has
no protected interest in his employment and may not prevail on a claim that his or her discharge
constituted a violation of property rights.”).

9

Here, although Plaintiff attempts to distinguish the cases that the Individual Defendants
cite for support, Plaintiff fails to provide any authority establishing that he may have a cognizable
property interest in his continued public employment. See Diaz

Opp.

at 19-20. Moreover, the

Court could not find any such case law through its independent research. Accordingly, Plaintiffs
substantive due process claims fail because Diaz does not adequately plead that he has protectable
property interest. Counts Two and Three, therefore, are dismissed on these additional grounds.
Blanco also argues that Plaintiffs procedural due process claim should be dismissed
because Plaintiff was not actually entitled to any procedural protections since Diaz was ultimately
removed by Blanco’s successor.5

Blanco MTD at 20-30.

This critical fact, that Diaz was

ultimately removed from his position, however, is not pled in the Amended Complaint. See Am.
Compi.

¶J 14, 19, 20, 22. As such, Blanco relies on documents outside the pleadings to make this

argument. See Declaration of Counsel, D.E. 39-2. “If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Given the fact that
Plaintiffs procedural due process claim is already dismissed because Plaintiff failed to plead facts
demonstrating each Defendant’s personal involvement, the Court will not convert the motion to
one for summary judgment at this time. Blanco’s motion, therefore, is denied on these grounds.
3. Equal Protection (Count Four)

The Individual Defendants also argue that Plaintiffs equal protection claim must be
dismissed because Plaintiff does not plead that he is a member of a protected class or that he was
treated differently because of his protected status. Ind. Defs. MTD at 13-14.

This claim is only brought pursuant to Section 1983 because claims for procedural due process
violations are not recognized under the NJCRA. See Coles v. Carlini, 162 F. Supp. 3d 380, 40203 (D.N.J. 2015).
10

The Fourteenth Amendment’s Equal Protection Clause provides that no State shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV

§

1. Traditionally, to prevail on an equal protection claim, a plaintiff must allege that he was treated
differently than others who were similarly situated, and that this difference in treatment was the
result of intentional discrimination based on his membership in a protected class such as religious
affiliation or race. See Bradley v. United States, 299 f.3d 197, 206 (3d Cir. 2002).
Here, Plaintiff fails to sufficiently plead that he is a member of a protected class or that he
was suspended as a result of his protected class status. Plaintiff counters that his claim should
survive because he is asserting a “class of one” equal protection claim. Pif. MTD at 22-24. A
plaintiff may proceed on a “class of one” theory by “alleg[ing] that she has been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.”

Village of WilloM’brook v. Olech, 52$ U.S. 562, 564 (2000). To be similarly

situated, “parties must be alike in all relevant aspects.” Startzetl v. City ofPhiladelphia, 533 F.3d
I $3, 203 (3d Cir. 200$). Plaintiff does not meet this burden—the meager facts in the Amended
Complaint fail to suggest that Plaintiff is a member in a protected class, that others are similarly
situated to Plaintiff, or that he was suspended for no rational basis. Consequently, Plaintiffs equal
protection claim is dismissed on these grounds as to the Individual Defendants as well.
4. Municipal Liability Claims (Counts Five and Seven)

Blanco seeks to dismiss Plaintiffs Monell claim because the Amended Complaint contains
no factual allegations of a city policy, custom or plan, which is necessary to plead a Monell claim.
Blanco MTD at 38-40. “A municipality may only be held liable under Section 1983 if the plaintiff
identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell
v. Ridley Township, 497 F. App’x 182, 185 (3d Cir. 2012)(quotingMonellv. Dept. ofSocial Servs.,

11

436 U.S. 65$, 694 (1978)). “In other words, the plaintiff must show that the municipality, through

one of its policymakers, affirmatively proclaimed the policy, or acquiesced in the widespread
custom, that caused the violation.” Noble v. Cliv of Camden, 112 F. Supp. 3d 208, 221 (D.N.J.
2015) (internal citation omitted). “A plaintiff may show the existence of apolicy when a decisionmaker with final authority issues an official proclamation, policy, or edict.” Id. (emphasis added)
(internal quotations and citations omitted). “[A] custom may be established by showing that a
given course of conduct, although not specifically endorsed or authorized by law, is so well-settled
and penTlanent as virtually to constitute law.” Id. (emphasis added) (internal quotations and
citations omitted).
Here, the Amended Complaint states that the City had “a pattern, practice or custom of
conducting hearings concerning discipline of employees without adequate notice and/or
opportunity to be heard, and without adequate procedural and substantive protections..
Compi.

.

.“

Am.

¶ 55. Plaintiff, however, fails to plead any further details about these alleged policies or

procedures. Because conclusory statements and threadbare recitations of the elements of a A’fonell
claim are insufficient, Count Five is dismissed as to Blanco because it is not plausibly pled. See,
e.g., Benjamin v. F. Orange Police Dep’t, 937 F. Supp. 2d 582, 595 (D.N.J. 2013) (dismissing
claim against city because plaintiff failed to plead facts demonstrating the existence of a policy or
custom).
Relatedly, Blanco also argues that Count Seven, a claim for respondeat superior, should
be dismissed because the City’s liability cannot be premised on a theory of supervisory liability.
Blanco MTD at 38. A municipality cannot be held liable under a theory of respondeat superior.
Monetl, 436 U.S. at 691. As a result, Count Seven is also dismissed on these grounds as to Blanco.

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5. Section 1985 Claim

While not clear from the pleadings, the Individual Defendants construe the Amended
Complaint as also asserting a Section 1985(3) conspiracy claim. The Individual Defendants
contend that to the extent Plaintiff pleads a Section 1985(3) conspiracy claim, it also fails because
Plaintiff does not plead that he is a member of a protected class. md. Defs. MTD at 15-16.

A

plaintiff must prove the following to sustain a Section 1985(3) claim:
(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.
United B/id. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983). In addition, Section

1985(3) conspiracy claims are limited to conspiracies predicated on “racial, or perhaps otherwise
class based, invidiously discriminatory animus.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
Section 1985(3), however, “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 ofPatterson, 440 F.3d 131, 143 (3d Cir. 2006). Thus, Plaintiff cannot premise his

conspiracy claim on his political affiliation and he fails to allege that he is a member of any other
protected class.6

Plaintiffs conspiracy claim, therefore, is dismissed as to the Individual

Defendants.

6

Even if Plaintiff did sufficiently allege that he was a member of a protected class, he fails to
provide sufficient details as to the existence of a conspiracy. To survive a motion to dismiss for a
Section 1985 conspiracy, a plaintiff “must provide some factual basis to support the existence of
the elements of a conspiracy, namely, agreement and concerted action.” Voth v. Hoffman, No. 147582, 2016 WL 7535374, at *9 (D.N.J. Apr. 28, 2016). Plaintiffs conclusory allegations fail to
provide sufficient detail by which the Court could infer that a conspiracy existed.
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IV.

CONCLUSION

For the reasons discussed above, the Individual Defendants’ motion is GRANTED and
Blanco’s motion is GRANTED IN PART and DENIED in part. Accordingly, the Amended
Complaint is dismissed without prejudice.

An appropriate Order accompanies this opinion.

Plaintiff may file an amended pleading that is consistent with this Opinion, within thirty (30) days
of the date of the Opinion and the accompanying Order.
Dated: January 28, 2019

LQi2\R

A/

John Michael Vazq)l(TJ.S.D.J.

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