FOSTER v. SIX FLAGS GREAT ADVENTURE LLC et al

Filing 20

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 1/5/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARK FOSTER,
Plaintiff,
v.
SIX FLAGS GREAT ADVENTURE
LLC, et al.,
Defendants.

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CIVIL ACTION NO. 15-2535 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
INTRODUCTION
Defendants, Six Flags Great Adventure LLC (“SFGA”) and SFGA “security
officers,” named as “John Does 1–10” (“the Doe Defendants”), move to dismiss the
amended complaint filed by Plaintiff, Mark Foster (“Foster”) pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6). (Dkt. 17; see also dkt. 15.)1 Defendants move to
dismiss three causes of action, which are styled as follows: (1) “Violation of State
Constitutional Rights under New Jersey Civil Rights Act N.J.S. A [sic] 10:6-2” (“First
Cause of Action”); (2) “Intentional Infliction of Emotional Distress” (“Second Cause of
Action”); and (3) “False Imprisonment under N.J.S.A. 2C:13-3” (“Third Cause of
Action”). (Dkt. 15 at 4–8.) Foster opposes the motion. (Dkt. 18-1.)

The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by
referring to docket entry numbers by the designation of “dkt.” Pincites reference ECF
pagination.
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The Court will resolve the motion without oral argument. See L.Civ.R.
78.1(b). The Court, for the reasons below, will: (1) grant the motion with respect to the
First Cause of Action and Third Cause of Action; and (2) deny the motion with respect to
the Second Cause of Action.
DISCUSSION
I.

FACTUAL HISTORY
A.

The Parties

SFGA is a “privately owned Limited Liability Company … [located in] Jackson,
New Jersey ….” (Dkt. 17 at 2.) A Delaware corporation, Six Flags Theme Parks, is the
parent company to SFGA. (Dkt. 15 at 1.) Foster resided in Staten Island, New York, at
the time this action was brought. (Id.)
B.

Facts Underlying this Action

Foster visited SFGA on July 19, 2014, with his children, Destinie Foster and
Shamar Foster (collectively, “the Foster Family”). (Id. at 2.)2 The Foster Family waited
to board the “Green Lantern attraction,” and the children exited the line. (Id.) The
children later attempted to reenter the line, and the Foster Family was involved in a
physical altercation with a neighboring “group of Caucasian men and women.” (Id. at 2–

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The parties agree to these facts. (Dkt. 15 at 2–4; dkt. 17 at 2.) The parties disagree, however,
as to, inter alia: (1) the extent of Foster’s involvement in the physical altercation; (2) whether the
Doe Defendants forcibly removed the Foster Family to the security office; and (3) whether the
Doe Defendants ejected the Foster Family from the park on account of race. (Compare dkt. 15 at
2–4, with dkt. 17 at 2.)
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3.) The Doe Defendants intervened, removed the Foster Family to the security office,
and subsequently ejected the Foster Family from the park. (Id. at 2–4.)
II.

PROCEDURAL HISTORY
Foster filed the initial complaint on April 6, 2015. (Dkt. 1.) Defendants moved to

dismiss the initial complaint on June 9, 2015. (Dkt. 3-1.) This Court issued an Order and
Order to Show Cause on June 15, 2015 (“6-15-15 Order”), ordering Foster to show cause
why, inter alia, his federal and state claims were procedurally viable. (Dkt. 5.) The 6-1515 Order also denied SFGA’s motion to dismiss without prejudice, and granted leave to
amend upon a new notice of motion. (Id. at 6.)
Foster filed an amended complaint on August 12, 2015. (Dkt. 15.) Defendants
filed a motion to dismiss the amended complaint on August 26, 2015. (Dkt. 17.) The
Court addresses that motion below.
III.

LEGAL STANDARD
A court, when reviewing a motion to dismiss, must: (1) accept all of the well-

pleaded factual allegations in the amended complaint as true; and (2) construe the
amended complaint in the light most favorable to the plaintiff. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007); Mann v. Brenner, 375 Fed.Appx. 232, 235 (3d
Cir. 2010). A court may also consider “exhibits attached to the [amended] complaint,
matters of public record, and documents that form the basis of a claim.” Turner v.
Leggett, 421 Fed.Appx. 129, 131 (3d Cir. 2011) (internal quotation and citation omitted).
A plaintiff must state a claim for relief that is plausible on its face in order to
survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facial
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plausibility exists when the factual content related to the claim permits the Court to draw
a reasonable inference that a defendant is liable for the alleged misconduct. Id. Judicial
experience and common sense guide that determination. Id. at 679. Although the Court
must accept all factual allegations as true, the Court need not do the same for legal
conclusions. Id. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements” cannot survive a motion to dismiss. Id.
IV.

LEGAL STANDARD APPLIED HERE
A.

First Cause of Action: “Violation of State Constitutional Rights under
New Jersey Civil Rights Act N.J.S. A [sic] 10:6-2”

Foster brought the First Cause of Action against SFGA and the Doe Defendants
“individually in their official capacity for deprivation of New Jersey State Constitutional
rights within the meaning of the New Jersey Civil Rights Act (N.J.S.A. 10:6-2).” (Dkt.
15 at 4–5.) With respect to SFGA, the First Cause of Action alleges that the amusement
park failed to: (1) train staff regarding “proper investigation procedures”; (2) “establish
and maintain policies that would instruct and educate any misconduct and/or racial
discrimination committed by their employees ….”; and (3) “supervise and/or reprimand
[employees] for violating citizens’ state constitutional rights which reflect a deliberate
indifference on the part of [SFGA].” (Id. at 5.) The allegations against the Doe
Defendants concern, inter alia, a failure to investigate the physical altercation. (Id.)

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1.

Defendants’ Arguments

Defendants argue that the First Cause of Action fails as a matter of law, because
N.J.S.A. 10:6-2 “only authorizes a private cause of action against parties ‘acting under
the color of law.’” (Dkt. 17 at 4.) According to SFGA, Foster does not establish a prima
facie claim under N.J.S.A. 10:6-2, because he “fails to cite a single authority, statutory or
common law, to support his contentions … that the … [Doe Defendants] were, in fact,
acting under color of law.” (Dkt. 19 at 5.)
2.

Foster’s Arguments

Foster concedes that N.J.S.A. 10:6-2 “state[s] that private individuals not acting
under color, who interfere or attempt to interfere with substantive rights, equal protection,
or privileges and immunities under state law are not subject to individual civil action but
action by the Attorney General.” (Dkt. 18-1 at 6.) Foster contends, however, that
“individuals acting under color of law while interfering or attempting to interfere with the
same rights are subject to civil action brought by the injured individual.” (Id.) Foster
argues that here the alleged actions of the Doe Defendants are fairly “attributable to the
state” because the Doe Defendants were state actors under the color of state law. (Id. at
6–7.) Foster, in support of that argument, contends that “the private party conduct of the
security force is attributable to the state because the patrolling of parks is a function
traditionally performed by the police.” (Id. at 7.)

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3.

Analysis

The Court finds that Foster does not adequately plead the First Cause of Action
sufficient to survive a motion to dismiss. N.J.S.A. 10:6-2(c) provides a private cause of
action, and reads, in relevant part, as follows:
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 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(c).
The 6-15-15 Order informed Foster that he could not bring the N.J.S.A. 10:6-2
claim under 42 U.S.C. § 1983 (“Section 1983”) for the following reasons:
THE DOE DEFENDANTS AND SFGA are private actors — and not state
actors — and thus any claims asserting their liability for constitutional
violations would appear to be without merit. See Collura v. City of
Philadelphia, 590 Fed.Appx. 180, 185 (3d Cir. 2014) (affirming dismissal of
Section 1983 claim asserted against private security service); Harbour v.
Super Extra, No. 10-1254, 2010 WL 988723, at *1 (D.N.J. Mar. 15, 2010)
(dismissing Section 1983 claim against store and security guard, where
plaintiff alleged guard confronted and injured him). Section 1983 does not
cover merely private conduct, no matter how discriminatory or wrongful.
St. Croix v. Etenad, 183 Fed.Appx. 230, 231 (3d Cir. 2006); see Boyd v.
Pearson, 346 Fed.Appx. 814, 816 (3d Cir. 2009) (affirming dismissal of
Section 1983 claim where defendant was not state actor).
(Dkt. 5 at 2.)
Foster provides no reason to revisit the Court’s determination in the 6-15-15
Order, and the amended complaint likewise does not plead facts sufficient to support an

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allegation that Defendants acted under the color of law. (See dkt. 15.) The amended
complaint, rather, contains conclusory statements that the Doe Defendants acted “under
[their] official capacity as security officers for” SFGA. (Dkt. 15 at 5.) To support his
claim that the private officers acted under the color of state law, Foster argues that “the
patrolling of parks is a function traditionally performed by the police” who also wear
uniforms and wield authority over private citizens. (Dkt. 18-1 at 7.) Notably, however,
Foster cites to a single decision of the U.S. Court of Appeals for the First Circuit in
support of that argument. (Id. (citing Barrios-Velazquez v. Asociacion de Empleados del
Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 494 (1st Cir. 1996)).) That case
analyzed the scope of state action under Section 1983. Barrios-Velazquez, 84 F.3d at
490–95. This Court, for the reasons discussed supra, previously determined that Section
1983 liability does not apply here, and therefore finds no indication – other than the
threadbare recitals and conclusory statements in Foster’s pleadings – that Defendants
acted under the color of state law. (Dkt. 5; see also dkt. 18-1.) Accordingly, the Court
will grant Defendants’ motion to dismiss with respect to the First Cause of Action.
N.J.S.A. 10:6-2(c) (recognizing a private cause of action where defendants act “under
color of law.”); Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”).
B.

Second Cause of Action: “Intentional Infliction of Emotional Distress”

The Second Cause of Action alleges that Defendants “intentionally and recklessly
failed to even attempt to aid and/or investigate the [Foster] [F]amily in their time of need
as patrons in an act of racial discrimination.” (Dkt. 15 at 6.) Foster also claims that the
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Doe Defendants “proceeded to criminalize and discriminate the [Foster] [F]amily by
serving a notice of trespass which caused severe emotional distress.” (Id.) According to
Foster, the Doe Defendants’ conduct was: (1) the direct cause of his emotional distress;
and (2) “so extreme and outrageous that it would shock the conscious [sic] of any
reasonable person.” (Id. at 7.) Thus, Foster claims damages related to, inter alia,
emotional and mental distress, pain and suffering, and medical expenses. (Id.)
1.

Defendants’ Arguments

Defendants argue, with respect to the Second Cause of Action, that Foster fails to
plead facts that give rise to the requisite inference that Defendants acted “with an intent
to cause emotional distress.” (Dkt. 17 at 6.) Defendants also contend that the allegations
related to the Second Cause of Action: (1) lack requisite factual support; and (2) do not
rise to the level of “outrageous” or “extreme” behavior to support a viable intentional
infliction of emotional distress claim. (Id.)
2.

Foster’s Arguments

Foster argues that the allegations in the amended complaint draw from “plentiful
facts to establish the extreme and outrageous conduct of the [Doe Defendants].” (Dkt.
18-1 at 7.) Foster reiterates the allegations that the Doe Defendants: (1) demanded that
the Foster Family visit the security office “against their will”; (2) refused to conduct an
investigation regarding the physical altercation or provide medical care to the Foster
Family; and (3) ejected the Foster Family from the park. (Id. at 7–8; see also dkt. 15 at
3–4.)

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3.

Analysis

The Court finds that the allegations in the Second Cause of Action support a
plausible claim for relief sufficient to survive Defendants’ motion to dismiss. A plaintiff,
in order to state a viable claim for intentional infliction of emotional distress, must
establish that a defendant “acted intentionally or recklessly” by engaging in “extreme and
outrageous” conduct that was “the proximate cause of the plaintiff’s emotional distress.”
Buckley v. Trenton Sav. Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988) (internal citation and
quotation omitted). With respect to damages, a plaintiff must demonstrate that the
emotional harm suffered was “so severe that no reasonable man could be expected to
endure it.” Id. (internal quotation and citation omitted).
Foster, as described supra, states the requisite allegations for an intentional
infliction of emotional distress claim in the amended complaint. The Court, accepting
those statements as true, finds that the factual underpinnings of the allegations are
sufficiently plausible to survive a motion to dismiss. Iqbal, 556 U.S. at 679 (“While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.”)
Accordingly, the Court will deny Defendants’ motion to dismiss with regard to the
Second Cause of Action.
C.

Third Cause of Action: “False Imprisonment under N.J.S.A. 2C:13-3”

Foster brings the Third Cause of Action against SFGA and the Doe Defendants.
(Dkt. 15 at 7–8.) Foster, in support of the Third Cause of Action, alleges that Defendants
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falsely imprisoned him “under New Jersey criminal law” by knowingly restraining the
Foster Family “in substantial deprivation of their liberty … in their security office
without a competent investigation and/or reasonable basis.” (Id. at 8.) Foster cites to
N.J.S.A. 2C:13-3, the section of the New Jersey Code of Criminal Justice entitled “False
Imprisonment,” as the basis for the Third Cause of Action. (Id. at 7.)
1.

Defendants’ Arguments

Defendants argue that the Third Cause of Action fails as a matter of law because
N.J.S.A. 2C:13-3 does not give rise to a private right of action. (Dkt. 17 at 7.)
Defendants, in support of that argument, contend that “[t]he text of the statute does not
provide for private party enforcement or civil remedies.” (Id.) Defendants also submit
that “[t]he New Jersey Judiciary does not construe penal statutes to create private rights
of action without express instruction from the legislature.” (Id.)
2.

Foster’s Arguments

Foster acknowledges that N.J.S.A. 2C:13-3 “does not give rise to a cause of action
in tort,” yet claims that “the correct action of false imprisonment was previously and
originally asserted … thereby preserving the right of claim.” (Dkt. 18-1 at 8.) Foster
identifies the “correct action” as the “NJTCA,” yet fails to identify where he previously
asserted that cause of action. (Id.) Foster, from a factual standpoint, recites the following
facts to support the Third Cause of Action: (1) the Foster Family was “forced against
their will from the amusement ride where they were attacked to the security office” and
thereafter held for an unreasonable period of time; and (2) the Doe Defendants refused to

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investigate other patrons involved in the physical altercation and ejected the Foster
Family from SFGA. (Id.)
3.

Analysis

The Court finds that the Third Cause of Action does not state a plausible claim
sufficient to survive Defendants’ motion to dismiss. Foster concedes that N.J.S.A.
2C:13-3 does not give rise to a cause of action. (Dkt. 18-1 at 8.)3 Foster fails to identify,
however, the asserted viable cause of action in the amended complaint or any other
filings before this Court. Indeed, Foster does not explain how the purported viable cause
of action – the “NJTCA” – supports the Third Cause of Action. The Court therefore
finds no plausible basis to support the Third Cause of Action. See Iqbal, 556 U.S. at 678;
Fed.R.Civ.P. 8(a) (“A pleading that states a claim for relief must contain … a short and
plain statement of the claim showing that the pleader is entitled to relief …”).
Accordingly, the Court will grant Defendants’ motion to dismiss with respect to the Third
Cause of Action.

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The Court, for that reason, need not analyze the applicability of N.J.S.A. 2C:13-3.
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CONCLUSION
The Court, for the reasons stated above, will: (1) grant Defendants’ motion to
dismiss with respect to the First Cause of Action and Third Cause of Action; and (2) deny
Defendants’ motion to dismiss with respect to the Second Cause of Action. The Court
will issue an appropriate order.

s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Dated: January 5, 2016

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