MURRAY et al v. COUNTY OF HUDSON et al
Filing
17
OPINION. Signed by Judge John Michael Vazquez on 06/14/2018. (sms)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL MURRAY, et al.,
Plaintiffs,
Civil Action No. 17-2875 (JMV) (MF)
V.
OPINION
COUNTY OF HUDSON, et al.,
Defendants.
John Michael Vazguez, U.S.D.J.
This case concerns allegations of wrongdoing related to the Hudson County Department
of Corrections.
Plaintiffs Daniel Murphy, Patricia Aiken, Omar Ortiz, and EdPDLAW, Ltd.
(collectively, “Plaintiffs”) bring a number of claims against Defendants County of Hudson
(“County”), Hudson County Department of Corrections (“HCDOC”), Thomas A. DeGise, Oscar
Aviles, Kirk Eady, Howard Moore, Tish Nalls-Castillo, and JohnlJane Does 1-25 (collectively,
“Defendants”).
Currently pending before the Court is Defendant Aviles’ motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
D.E. 13.
The Court reviewed the
submissions in support and in opposition,t and considered the motion without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 72.1(b). For the reasons stated below, Defendant
Aviles’ motion to dismiss is GRANTED.
‘Plaintiffs’ Amended Complaint will be referred to hereinafter as “Am. Compl.” (D.E. 5);
Defendant Aviles’ brief in support of his motion to dismiss the Amended Complaint will be
referred to hereinafter as “Aviles Br.” (D.E. 13); Plaintiffs’ brief in opposition will be referred to
hereinafter as “Opp. Br.” (D.E. 14). Defendant Aviles did not submit a brief in reply.
I.
FACTUAL BACKGROUND2
At the outset, the Court notes that Plaintiffs’ allegations are at times unclear. With the
exception of Defendant Eady, Plaintiffs often fail to include specific allegations against particular
Defendants. Instead, Plaintiffs make many of their allegations against “Defendants” as a whole.
Plaintiffs also fail to include many relevant dates. The Court nevertheless attempts to summarize
Plaintiffs’ factual allegations below.
The Parties
Plaintiff Murray was a corrections officer employed by the County until April 1, 2016.
Am. Compl. at ¶ 1. While employed, Murray served in various capacities for the Police Benevolent
Association (“PBA”) Local No. 109. Id. Plaintiff Ortiz was a Lieutenant in the HCDOC until
October 14, 2015. Id. at ¶3. While working for HCDOC, Ortiz served in various union positions,
including president of PBA Local No. 109 and president of the PBA Superior Officers Association
(“SOA”). Id. Plaintiff Aiken is the owner of Plaintiff EdPDLAW, LTD (“EdPDLAW”), a New
Jersey business that provided services to law enforcement unions. Id. at
¶ 2,
19. Beginning in
August 2010, EdPDLAW entered into an agreement with the PBA to provide services for two
years. Id. at 20. The agreement was renewed for an additional two years in August 2012. Id.
Defendant DeGise is the County Executive and is responsible for the administration of
County policy and decision-making. Id. at ¶6. Defendant Aviles was the Director of the HCDOC.
Id. at
¶
7. Defendant Eady was the Deputy Director of the HCDOC. Id. at
¶
8. Eady was
responsible for overseeing the operations of the HCDOC and reported to Aviles. Id. at
¶ 25.
Defendant Moore was the County’s Assistant Director of Personnel in the Department of finance
2
The factual background is taken from Plaintiffs’ Amended Complaint, D.E. 5. When reviewing
a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. fowler v.
UPliCShadyside, 578 F.3d 203, 210 (3d Cir. 2009).
2
and Administration. Id. at
¶ 9. Defendant Nalls-Castillo was a captain in the HCDOC, Deputy
Director of the HCDOC, and the provisional Director of the HCDOC. Id. at
¶ 10.
Plaintiffs’ Allegations
Plaintiffs bring the most specific allegations against Eady. Plaintiffs allege that Eady
undertook numerous retaliatory actions against Plaintiffs after Plaintiffs hired EdPDLAW and
“undertook an investigation into the proper titles of Defendant Aviles, Defendant Eady
Thaddeus Caldwell, and Internal Affairs Sergeant Ricardo Aviles, Defendant Aviles’ cousin.” Id.
at
¶ 32. According to Plaintiffs, “[a]s a result of that investigation it was determined that
Defendants Aviles and Eady, as well as Caldwell held civilian titles while remaining in the Police
and Fire Retirement System.” Id. This information was then published on the EdPDLAW website.
Id. Aiken also published information on the website regarding the promotion of Aviles’ cousin.
Id. at
¶ 34. Aiken alleged that the promotion was done without anyone’s knowledge and in
violation of the New Jersey Civil Service regulations. Id. Later, the website also published
information about Nalls-Castillo. Id. at ¶ 50.
At this point, Plaintiffs claim that “Defendant Eady made it known to people that he was
going to retaliate against PBA/SOA representatives including Plaintiffs Murray and Ortiz, and that
he would get Plaintiff Aiken fired from working with the PBA.” Id. at ¶ 36. Plaintiffs claim that
Eady issued a memorandum that banned all liquid substances from the correctional facility to
“creat[e] discontent with the PBA/SOA membership and at the PBA/SOA representatives.” Id. at
¶ 37. Eady also organized an event that involved maximum security inmates which created a safety
risk. Id. Plaintiffs allege that when asked about his orders, Eady “responded in front of several
witnesses that his orders were in retaliation for the Plaintiffs bringing up issues about him to the
County Freeholders.” Id. at ¶ 38. Plaintiffs further claim that Eady submitted Plaintiffs’ names to
3
the Ku Klux Klan (“KKK”) in order to hurt their reputations, including submitting Murray’s name
twice. Id. at
¶
55-60. Critically, Plaintiffs allege that Eady was secretly recording Plaintiffs’
telephone conversations. Id. at ¶J 67-74. Eady used a computer application that made “the phone
numbers on the Caller ID show up as another person
.
.
.
and record the conversation,” while
“disguis[ingJ his voice as a female voice.” Id. at ¶J 70-71.
On January 14, 2012, Ortiz wrote to Aviles, with a copy to DeGise, alleging that Eady and
Nalls-Castillo brought false discipline charges against him in retaliation for his union activities.
Id. at ¶ 39. On February 2$, 2012, PBA/SOA representatives had a meeting with Aviles regarding
Eady’s “strange and erratic” behavior. Id. at ¶ 40. Aviles took no action. Id. On March 1, 2012,
the PBA filed a grievance with Aviles regarding Eady’s behavior. Id. at ¶ 41. Aviles again took
no action. Id. Because Aviles took no action, a letter was sent on March 7, 2012 to Aviles, DeGise,
County Counsel, and to the County Freeholders demanding intervention as to Eady. Id. at
¶ 42.
Around the same time as the letter, information was published to the EdPDLAW website
“regarding a newly created position that was given to Aviles’ cousin, Ricardo Aviles.” Id. at ¶ 43.
Later, on May 15, 2012, an email was sent to the Hudson County freeholders, DeGise, and
PBA members stating that Eady had been overheard making threats against Murray and Ortiz. Id.
at ¶ 62. The Hudson County Prosecutors Office and Aviles took no action after the email was sent.
Id. at
¶
64. Plaintiffs claim that Aviles instead gave Eady additional power
—
allowing Eady to
to place and record
Plaintiffs state that Eady used “a website called. ‘Evil Operator’
2012” and that “[t]he initiation of
telephone calls from July 26, 2010 through at least August of
Defendant Eady’s use of ‘Evil Operator’ coincides with Plaintiff Murray becoming the
Grievance Committee Chairman for the PBA, EdPDLAW beginning its relationship with the
PBA, and Plaintiff Ortiz being the President of the SOA.” Am. Cornpl. at ¶ 90.
.
.
.
.
.
On January 14, 2014, Defendant Eady was arrested and charged with one count of illegal
wiretapping. Id. at ¶ 89. Eady was later found guilty at trial and sentenced to 21 months in
prison. Id. at 102.
4
discipline Ortiz in retaliation for union activities. Id. at ¶ 65. In sum, Plaintiffs claim that “Aviles
would have to approve of all of the actions that Defendant Eady took in his official capacity” and
that “Defendant Aviles was openly antagonistic to the PBA and would use any information
available to him, including information that Defendant Eady provided to him.” Id. at ¶ 109-10.
Plaintiffs largely bring the remainder of their factual allegations against “Defendants” as a
whole
—
without delineating the acts of each particular defendant. For example, once the articles
were published, Plaintiffs claim that “Murray, Ortiz and Aiken began receiving harassing phone
calls” from numbers that were later disconnected. Id. at ¶ 35, 43. The calls had a female voice,
and “[t]he calls indicated on the caller ID that they were from phone numbers that were familiar
to [P]laintiffs, including the PBA office at the correctional facility. Id. at
specifically placed to Ortiz’s home and to Aiken’s son. Id.
¶J 44-45. Calls were
¶J 45-46.
Plaintiffs also generally claim that the “Defendants had discussions and communications
amongst themselves with the intent on damaging and weakening the PBA/$OA in its ability to
represent its membership in all aspects including, but not limited to, depleting union funds,
representation in negotiations, disciplinary matters, [and] grievance issues.” Id. at ¶ 2$. Plaintiffs
contend that Plaintiff Ortiz was also “regularly targeted for discipline by the Defendants” including
attempting to hold a disciplinary hearing while Ortiz was receiving treatment in the hospital. Id.
at ¶ 5 1-52. As to Murray, Plaintiffs claim that “[a]s a direct result of the Defendants[’] behavior,
actions, and inactions, Plaintiff Murray sustained psychological and physical injuries that resulted
in him being unable to perform his duties as a corrections officer.” Id. at
¶ 11$. These actions
included “purposefully and knowingly dissemin[ating] information and depict[ing] Plaintiff
Murray as being racist against African Americans and all minorities.” Id. at ¶ 127. Plaintiffs also
continued to put Murray on the work schedule even after he had submitted his retirement
5
application, resulting in Murray using his accumulated vacation time and changing his retirement
date. Id. at
¶ 119-21. Plaintiffs claim this was done in retaliation for Murray’s PBA advocacy
and because he was responsible for the criminal charges against Eady. Id. at ¶ 122. Plaintiffs also
describe a specific incident in April 2015, in which “the Defendants permitted flyers to be posted
around the correctional facility, in violation of departmental regulations, which falsely accused
Defendant Murray for actions for which he was not responsible in order to turn the PBA
membership against him.” Id. at
¶ 99. Defendants took no action to determine who put up the
postings. Id.
II. PROCEDURAL HISTORY
On September 12, 2016, Plaintiffs filed a Complaint. D.E. 1. On July 7, 2017, Judge Falk
signed a consent order allowing Plaintiffs to file an Amended Complaint. D.E. 4. Plaintiffs then
filed their Amended Complaint on July 13, 2017. D.E. 5. The Amended Complaint brings thirteen
counts. Count One brings an action pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) for violations
of the fourth Amendment against “Defendant Eady with the knowledge and approval of some or
all of the other Defendants” and against “Defendants.” Am. Compl. at
brings an action pursuant to Section 1983 for violations of 18 U.S.C.
¶ 133-136. Count Two
§ 2511(l)(c) and 18 U.S.C.
§251 1(1)(d) against “Defendant Eady with the knowledge of at least some of the Defendants.” Id.
at
¶J 137-139. Count Three alleges a violation of N.J.S.A. 2A:156-l,
etseq. against “Defendant
Eady with the knowledge of at least some of the Defendants.” Id. at ¶ 140-42. Count F our brings
an action for tortious interference with a business relationship against “[t]he Defendants.” Id. at
¶J 143-48. Count Five brings an action for intentional infliction of emotional distress against
“[t]he Defendants.” Id. at
¶ 149-51. Count Six brings an action for negligent infliction of
Id. at
emotional distress against “[t]he Defendants.”
6
¶J 152-54. Count Seven alleges that
“Defendants violated the policies and procedures which apply to all employees of the Defendant
County and HCDOC.” Id. at
¶ 155-59. Count Eight brings an action for respondeat superior
liability against Defendant County and Defendant HCDOC. Id. at ¶ 160-62. Count Nine alleges
violations of N.J.S.A. 34:19-1, et seq. by “Defendants.” Id. at
¶J 163-65. Count Ten brings a
“Common Law Fierce claim for retaliation” against “Defendants.” Id. at ¶J 166-68. Count Eleven
alleges violations of N.J.S.A. 2C:41-1, et seq. against “Defendant County, Defendant HCDOC,
[and] Defendants.” Id. at ¶J 169-175. Count Twelve alleges violations of Title VII and N.J.S.A.
10:5-1, etseq. against “Defendant Eady and other Defendants.” Id. atfflJ 176-80. Count Thirteen
alleges violations of the New Jersey Constitution and N.J.S.A. 10:6-2, et seq. against
“Defendants.” Id. atfJ 181-83.
On September 18, 2017, Defendant Oscar Aviles filed the motion to dismiss presently
before the Court. D.E. 13. On October 6, 2017, Plaintiffs filed a brief in opposition, D.E. 14, to
which Aviles did not reply. Defendants have also filed Answers. D.E. 12 (Defendant Eady); D.E.
15 (all other Defendants).
III. LEGAL STANDARD4
Rule 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief
can be granted[.]” For a complaint to survive dismissal under the nile, it must contain sufficient
factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Ad. Corp. v. 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
The Court notes that Plaintiffs provide the incorrect standard of review for motions to dismiss.
See Opp. Br. at 2. Twombly and Iqbal provide the Supreme Court’s most recent rulings on the
standard for motions pursuant to Rule 12(b)(6). Plaintiffs instead cites cases before Twombly
and Iqbal, which concern a different standard.
7
inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir.
2016).
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. fowler v. UFMCShadyside, 578 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. Mutberg factors, Inc., 662 f.3d 212, 224 (3d Cir. 2011). A 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.” Titrner v. JP. Morgan Chase & Co., No. 14-7 148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
IV. ANALYSIS
Defendant Aviles moves to dismiss Counts Four and Nine, as well as all “official capacity”
claims against him. Additionally, Aviles moves to dismiss Plaintiffs entire Amended Complaint
as an impermissible “group pleading.”
a. Impermissible Group Pleadings
Aviles argues that Plaintiffs’ allegations constitute imperrnissible “group pleadings” and
should therefore be dismissed. Plaintiffs respond that “[t]he separate Counts state who they are
against” and that “[t]he mere fact that a cause of action is against all of the defendants because
they participated in the illegal activity or condoned it as the employer does not make the pleadings
vague.”
Opp. Br. at 8.
8
Courts within this district have not permitted complaints with group pleadings to go
forward. Sheeran v. Blyth Shzpholding LA., No. 14-5482, 2015 WL 9048979, at *3 (D.NJ. Dec.
16, 2015) (dismissing the complaint because the “Plaintiffs’ Complaint fails to separate out the
liability for each defendant”); Ingris v. Borough of Caidwell, No. 14-855, 2015 WL 3613499, at
*5 (D.N.J. June 9, 2015) (“[Tb
the extent Plaintiff seeks to lump several defendants together
without setting forth what each particular defendant is alleged to have done, he has engaged in
impermissibly vague group pleading.”). Group pleadings are generally improper because they do
not satisfy the requirements of Federal Rule of Civil Procedure 8. See Shaw e. Housing Auth. of
Camden, No. 11-4291, 2012 WL 3283402, at *2 (D.N.J. Aug. 10, 2012) (finding that “[e]ven under
the most liberal notice pleading requirements of Rule 8(a), a plaintiff must differentiate between
defendants.” (citation omitted)). This is necessary to “allow{] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 67$. In other
words, when defendants are grouped together, a court cannot determine whether a complaint has
set forth plausible allegations as to each particular defendant.
Here, the Court finds that Plaintiffs’ Amended Complaint fails to put Aviles on adequate
notice of the specific claims against him. Plaintiff does include some factual allegations specific
to Aviles. See Am. Cornpl. at ¶J 29, 30, 39, 40, 41, 42. However, it is unclear how these factual
allegations relate to the counts brought by Plaintiffs against “Defendants” as a whole. Plaintiffs’
clearest allegations concern Eady, particularly Eady’ s illegal wiretapping of Plaintiffs. However,
it is not clear from the Amended Complaint precisely what Plaintiffs are alleging vis-à-vis Aviles
and wrongdoing. As best as the Court can determine, Aviles is alleged to have shown some
animosity towards the unions, legitimately worked with the other Defendants (but not necessarily
conspired or agreed to act have acted unlawfully in conjunction with other Defendants), and did
9
not respond to certain complaints by Plaintiffs. The Court did not see any particular allegations as
to Aviles concerning illegal wiretapping, the KKK, or improper phone calls.
Counts One, Two, and Three state that Eady engaged in wrongful conduct “with the
knowledge and approval ofsome or all of the other Defendants.” Id. at ¶ 134-136, 138-139, 141142 (emphasis added). The Court does not know if Aviles is even subject to these counts as they
appear to be based on pure speculation by Plaintiffs. Counts F our, five, Six, Seven, Nine, Ten,
Eleven, Twelve, and Thirteen again bring general allegations against “Defendants” without
clarifying what conduct each Defendant engaged in. Id. at ¶J 143-154, 163-183. Plaintiffs need
to specify the factual allegations that are brought against Aviles and plausibly plead Aviles’ alleged
wrongdoing. Based on Plaintiffs’ Amended Complaint, the Court cannot detennine what claims
are brought against Aviles and what factual allegations support these claims.
Accordingly,
Plaintiffs’ Amended Complaint, as brought against Aviles, is dismissed without prejudice.
Plaintiffs will be permitted the opportunity to amend their pleadings in a Second Amended
Complaint. Because the Court grants Plaintiffs the opportunity to amend their pleadings, the Court
will analyze Aviles’ other grounds for dismissal.
b. Failure to File a Tort Claims Notice
Aviles argues that all claims by EdPDLAW are barred because the entity failed to file a
tort claim notice.
More specifically, Aviles argues that the New Jersey Tort Claims Act
(“NJTCA”) requires a party bringing suit against a public entity or employee to file a tort claim
notice within 90 days of the accrual of the party’s cause of action. Def Br. at 3. Plaintiffs contend
that Aikens is the sole owner of EdPDLAW and that her personal notice applies to EdPDLAW.
P1. Opp. at 3. Alternatively, Plaintiff contends that this issue is not appropriate at the motion to
dismiss stage. Id.
10
Under the NJTCA, a party must, with some exceptions, file a tort claim notice against a
public entity “within 90 days of accrual of the claim.” N.J.S.A. 59:8-8. Both parties seem to
assume that EdPDLAW did not file a tort claim notice, but that Aikens did file such a notice in her
personal capacity. However, neither party provides any legal analysis or caselaw that considers
the issue of whether the filing of a tort claim notice by a sole owner of a business entity is sufficient
to fulfill the requirements of N.J.S.A. 59:8-8. Because neither party provides any legal analysis
on this issue, and because the Court grants Aviles’ motion on alternate grounds, the Court denies
relief on this ground without prejudice.
c. Count Four (Tortious Interference with a Business Relationship)
Aviles next argues that Plaintiffs’ claim for tortious interference with a business
relationship fails because Aiken does not allege the existence of any contract. Def. Br. at 4.
Plaintiffs respond that a contractual relationship is not necessary for such a claim. Opp. Br. at 4.
Plaintiffs’ Amended Complaint alleges, in part, that
Defendants purposefully and knowingly either took deliberate
action or permitted deliberate actions to occur against the Plaintiffs
for the purpose of causing Plaintiffs Murray and Ortiz harm at work
and causing Plaintiff Aiken harm to her business relationship with
the PBA and other potential clients.
Am. Compl. atJ 144.
“The tort of interference with a business relation or contract contains four elements: (1) a
protected interest; (2) malice—that is, defendant’s intentional interference without justification;
(3) a reasonable likelihood that the interference caused the loss of the prospective gain; and (4)
resulting damages.” Vosough v. Kierce, 437 N.J. Super. 218, 234 (App. Div. 2014) (quotation
omitted). Courts have described the “protectable right” as “a prospective economic or contractual
relationship.” BH329NBLLCv. CBRE, Inc., No. 16-8141, 2017 WL 3641566, at *5 (D.N.J. Aug.
11
24, 2017) (emphasis added) (quoting MacDougall v. Weichert, 144 N.J. 380, 404 (1996)).
Plaintiffs are correct that a contract is a not necessary element of the claim. Therefore, the Court
denies Defendant Aviles’ relief on this ground.
d. Count Nine (Conscientious Employee Protection Act)
Aviles’ argues that Count Nine should be dismissed because Plaintiffs failed to file their
claim within the one-year statute of limitations period under the Conscientious Employee
Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq. Def. Br. at 5-6. Plaintiffs respond that (1)
Defendants waived their right to challenge the CEPA statute of limitations and that (2) Defendants
point to the wrong date for the initiation of the limitations period. Opp. Br. at 5-6.
CEPA provides, in relevant part, that: “Upon a violation of any provisions of this act, an
aggrieved employee or former employee may, within one year, institute a civil action in a court of
competent jurisdiction.” N.J.S.A. 34:19-5 (emphasis added). “A cause of action under the statute
arises upon the commission of a violation by the employer.” Daniels v. lint. Lfe Ins. Co., 340
N.J. Super. 11, 16 (App. Div. 2001).
Aviles argues that because Plaintiffs filed their suit on July 13, 2017, the statute of
limitations had already run for Murray and Ortiz. Def. Br. at 5. This argument is misleading.
Plaintiffs filed their Amended Complaint on July 13, 2017, D.E. 5, but filed their initial Complaint
on April 26, 2017. D.E. 1. The operative date is the filing of the initial Complaint. Because
Aviles has not addressed this date in his arguments, the Court denies his request for relief without
prejudice.
The Court briefly notes that that it also has concerns with Plaintiffs’ arguments. Plaintiffs
first argue that “[i]t was agreed by all of the parties and memorialized in a Consent Order signed
by the Court, that the Defendants waived their right to challenge the claims based upon timeliness.”
12
Opp. Br. at 5.
However, the Consent Order does not address this issue. See D.E. 4. Plaintiffs also
seem to argue that while Plaintiff Murray retired on April 1, 2016, the relevant date for the statute
of limitations should be January 10, 2017, the date on which the Pension board made his disability
determination. Opp. Br. at 5. It is not clear to the Court that this is a viable argument in light of
the Appellate Division’s decision in Daniels, 340 N.J. Super. at 17—18. Yet, the Court does not
reach the merits of this argument because it is denying Aviles’ request for relief.
e. “Official Capacity” Claims
Aviles also argues that to the extent Plaintiffs bring their claims against Aviles in his
official capacity as the Director of HCDOC, these claims should be dismissed because they are
identical to those claims that are brought against HCDOC and the County. Def. Br. at 7-8. Aviles
states that “courts have held that an officer sued in an official capacity cannot be named a party in
an action asserting identical claims against the municipality. Id. at 7. Aviles cites three cases in
support of this argument. First, Aviles cites Duran v. Warner, No. 07-5994, 2013 WL 4483518
(D.N.J. Aug. 20, 2013). In Duran, the court granted summary judgment to a defendant who was
sued in his official capacity as chief of police when identical federal claims were brought against
the municipality. Id. at 7. The court reasoned that because “[m]unicipal departments are not
separate legal entities from the municipality they serve, and therefore cannot be named parties in
conjunction with the municipality.
.
.
.
a claim against a police chief in his official capacity is in
essence a claim against the municipality.” Id. at 6. Next, Aviles cites to Owens v, City ofAti. City,
2008 U.S. Dist. Lexis 47584 (D.N.J. 2008). In Owens, the court granted summary judgment for
the director of public safety for Atlantic City because “if plaintiff is asserting his [federal] claim
against [the director] in his official capacity, that claim is barred because a claim against a state or
local official is actually a claim against the governmental entity.” Id. at 33. Aviles lastly cites to
13
Whaztmbttsh v. City of Philadelphia. 747 F. Supp. 2d 505 (E.D. Pa. 2010), in which a court
dismissed federal claims against certain Philadelphia officials in their official capacities because
the claims were duplicative of the plaintiffs’ claims against the city. Id. at 510, n.2.
As to federal claims, suits against persons in their official capacities are simply another
way of pleading claims against the governmental entity of which the person is an agent. See e.g.,
Kentttcky. v. Graham, 473 U.S. 159, 165—66 (1985) (suits against government officials in his or
her “official-capacity” is actually a suit against the entity itself). “As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity. It is not a suit against the official personally, for
the real party in interest is the entity.” Id. at 166 (internal citations omitted). For this reason, all
federal claims that are brought against Aviles in his official capacity are dismissed with prejudice
as duplicative of Plaintiffs’ claims against the County. However, Aviles provides no argument
regarding Plaintiffs’ state law claims against him in his official capacity. As a result, the Court
does not reach this issue.
f.
New Jersey Civil RICO Claims
The Court also notes that Plaintiffs fail to fulfill the heightened pleading requirements for
claims under New Jersey RICO. Like its federal counterpart, N.J.S.A. 2C:41-2(c) (“New Jersey
RICO”) makes it 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.S.A. 2C:41—2(c). A NJRICO claim is comprised of the following elements:
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
14
the defendant participated through a pattern of racketeering activity;
and (6) that the plaintiff was injured as a result of the conspiracy.
Southwardv. Elizabeth 3d. ofEduc., No. 15-3699, 2017 WL 4392038, at *12 (D.N.J. Oct. 2, 2017)
(quotation omitted). Claims under New Jersey RICO are subject to the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b).
Galicki v. New Jersey, No. 14-169, 2016
WL 4950995, at *22 (D.N.J. Sept. 15, 2016) (“A claim brought pursuant to NJ RICO is subject to
the heightened pleading requirements of Fed. R. Civ. P. 9(b).”), reconsideration denied, 2016 WL
7494257 (D.N.J. Dec. 1, 2016).
The Court finds that, in addition to being impermissible group pleadings, Plaintiffs’ New
Jersey RICO allegations do not fulfill the heightened pleading requirements of Rule 9(b). Aviles
also correctly notes that Plaintiffs’ pleadings do not include any allegations that Defendants’
alleged racketeering activity affected trade or commerce
—
a required element under the statute.
See id.
V. CONCLUSION
Defendant Aviles’ motion to dismiss (D.E. 13) Plaintiffs’ Amended Complaint is
GRANTED.
Plaintiffs’ federal claims against Aviles in his official capacity as Director of
HCDOC are dismissed with prejudice. The remainder of Plaintiffs’ claims against Aviles are
dismissed without prejudice. Plaintiffs may file a Second Amended Complaint within thirty (30)
days, if they so choose, consistent with this Opinion. If Plaintiffs fail to file a Second Amended
Complaint, the Court’s dismissal will be with prejudice. An appropriate Order accompanies this
Opinion.
Dated: June 14, 2018
Z\kQQV
John iichaei Vazque!S)J.
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