United States District Court, District of New Jersey, D.
December 11, 2000
MARK CLEMENT, PLAINTIFF
PUBLIC SERVICE ELECTRIC AND GAS COMPANY AND EMPLOYEE JOHN DOE ("MARK") BOTH AS AN AGENT AND INDIVIDUALLY, DEFENDANTS.
The opinion of the court was delivered by: Orlofsky, District Judge:
In this case, plaintiff's counsel, Lorraine Harris, Esq. ("Harris"),
has filed a Complaint on behalf of plaintiff, Mark Clement ("Clement"),
which unfortunately requires this Court to conduct an inquiry to
determine whether Harris has violated Rule 11 of the Federal Rules of
Civil Procedure. Indeed, the Complaint which Harris has filed in this
case raises serious questions about her professional competence to
practice law. Defendants, Public Service Electric and Gas Company
("PSE&G") and employee John Doe ("Mark") (sic) ("the Doe Defendant") have
moved to dismiss the Complaint for failure to state a claim upon which
relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) and for sanctions
pursuant to Fed.R.Civ.P. 11. For the reasons set forth below, I shall
grant the motion to dismiss without prejudice to the filing of an amended
Complaint within thirty (30) days of the filing of this Opinion, that
is, on or before January 10, 2001. I shall deny the motion for Rule 11
sanctions at this time, however, I shall issue an Order to Show Cause,
returnable before this Court on January 19, 2001 at 9:30 a.m., requiring
Harris to show cause whether she has violated Fed. R. Civ. P 11(b)(2).
I. ALLEGATIONS OF THE COMPLAINT
The Complaint which Harris has filed on behalf of Clement contains a
confusing array of legal theories which make it difficult to understand
the causes of action which are being asserted. Although Fed.R.Civ.P.
8(a)(1) requires that a Complaint contain "a short and plain statement of
the grounds upon which the court's jurisdiction depends . . .," Harris's
jurisdictional statement, such as it appears in the Complaint, See
Complaint, ¶¶ 1-4, is neither short, nor plain. An attorney
practicing before a federal court should not plead a cause of action in a
manner which requires a judge to guess as to the basis for the court's
jurisdiction. The concept of "notice pleading" embodied in the Federal
Rules of Civil Procedure is not a license to mystify. While pro se
litigants are held to less stringent pleading standards, more is expected
of members of the Bar. See Haines v. Kerner, 404 U.S. 519 (1972).
The facts giving rise to Clement's claim, unlike Harris' legal
theories, are reasonably clear. The Complaint alleges that Clement, a
thirty-six year old black male, a citizen of the United States, was
employed by E.P. Henry. Complaint at ¶ 5. According to the
Complaint, Clement "was acting within the scope of his employment when he
was accosted by the defendant's (sic) agent named herein as a defendant
known only to plaintiff as "Mark," hereinafter called "John Doe" on
November 19, 1997." Complaint at ¶ 5. According to the Complaint,
Doe, an employee of PSE&G, got into a dispute with Clement about a
parking space, and called plaintiff a racial epithet, while spitting in
his face. See Complaint ¶¶ 11-20. As a result of Doe's repeated use
of racial slurs, Clement alleges that he was intimidated, humiliated and
has suffered emotional distress requiring medical treatment.
II. HARRIS'S LEGAL THEORIES
While the facts giving rise to this Complaint are fairly clear, the
legal theories upon which Harris is proceeding are far from clear.
Clement was an employee of E. P. Henry. Doe was an employee of PSE&G.
Count I of the Complaint, captioned "Retaliation in Violation of the
Opposition Clause" alleges that the conduct and actions set forth in
paragraphs one through twenty-five of the Complaint ". . . were violations
of the Opposition Clause of
the Civil Rights Act of 1968 and the Civil Rights Act of 1866."
Complaint at ¶ 30. Count II of the Complaint, captioned
"Racial Discrimination under Section 1983 of the United States
Code," simply alleges that Section 1983 was violated, without alleging
any of the elements of a Section 1983 cause of action.
The legal standard by which a District Court must evaluate a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is well settled in this
Circuit. As the Court of Appeals has noted:
"[A] motion to dismiss pursuant to Rule 12(b)(6) may
be granted only if, accepting all well-pleaded
allegations in the complaint as true, and viewing them
in the light most favorable to plaintiff, plaintiff is
not entitled to relief(citation omitted)." However,
while our standard of review requires us to accept as
true all factual allegations in the complaint, "we
need not accept as true `unsupported conclusions and
unwarranted inferences" (citation omitted). "[C]ourts
have an obligation in matters before them to view the
complaint as a whole and to base rulings not upon the
presence of mere words but, rather, upon the presence
of a factual situation which is or is not
justiciable. We do draw on the allegations of the
complaint, but in a realistic, rather than a slavish
manner (citation omitted)."
Doug Grant, Inc. v. Greate Bay Casino Corporation, 2000 WL 1670296
at *7 (3d Cir. 2000)
With this legal standard in mind, I shall examine each count of
III. COUNT I — RETALIATION IN VIOLATION OF THE OPPOSITION
The so-called Opposition Clause is found in Section 2000e-3(a) of Title
VII. It provides in relevant part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice
made an unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
42 U.S.C. § 2000e-3(a) (1994).
The Opposition Clause ". . . prohibits an employer from retaliating
against an employee who has `opposed' any practice by the employer made
unlawful under Title VII; and prohibits an employer from retaliating
against an employee who has `participated' in any manner in an
investigation under Title VII (citations omitted)." Johnson v.
University of Cincinnati, 215 F.3d 561, 577(6th Cir. 2000). See also
Robinson v. Southeastern Pennsylvania Transportation Authority,
982 F.2d 892, 896 n. 4 (3d Cir. 1993); Booker v. Brown & Williamson
Tobacco Co., Inc., 879 F.2d 1304 (6th Cir. 1989); Holden v.
Owens-Illinois, Inc., 793 F.2d 745 (6th Cir. 1986).
It is clear from the literal language of the Opposition Clause that a
plaintiff who asserts a claim based upon it must be an employee of an
employer who has retaliated against that employee because the employee
has opposed any practice by the employer which is unlawful under Title
VII. Clement, according to the Complaint, was not an employee of PSE&G.
Thus, the Opposition Clause can have no application to the facts and
circumstances alleged in the Complaint. Obviously, Clement cannot state
a claim under the Opposition Clause against PSE&G and Doe, assuming of
course that Clement is proceeding under Title VII. Moreover, there is
nothing contained in the Complaint which indicates that prior to filing
this action Clement filed a timely charge of employment discrimination
with the Equal Employment Opportunity Commission ("EEOC") and received a
"right to sue" letter from the EEOC. See 42 U.S.C. § 2000e-5(b),
(e), and (f); Alexander v. Gardner-Denver Company, 415 U.S. 36,
94 S.Ct. 1011,
39 L.Ed.2d 147 (1974). Federal courts lack jurisdiction to hear Title
VII claims unless a claim has previously been filed with the EEOC.
Trevino-Barton v. Pittsburgh National Bank, 919 F.2d 874
(3d Cir. 1990). Not only has Clement failed to allege that he filed
a claim with the EEOC, he could not have filed such a claim against
PSE&G under Title VII because PSE&G is not his employer. Thus,
Count I of the plaintiff's Complaint clearly fails to state a cause
of action against PSE&G and Doe.
IV. COUNT II — RACIAL DISCRIMINATION UNDER SECTION 1983 OF THE
UNITED STATES CODE
The starting point in analyzing Clement's Section 1983 claim begins
with the statutory language itself, which provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects . . . 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 . . .
The essence of a Section 1983 action is a deprivation of a federal or
constitutional right by a party acting under color of State law. In
other words, to violate Section 1983, PSE&G must be a "State Actor."
Whether a public utility is a "State Actor" within the meaning of Section
1983 depends upon ". . . whether there is a sufficiently close nexus
between the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the State
itself (citation omitted). The true nature of the State's involvement
may not be immediately obvious, and detailed inquiry may be required in
order to determine whether the test is met (citation omitted)." Jackson
v. Metropolitan Edison Company, 419 U.S. 345, 351 (1974).
As one Court in this Circuit has noted in interpreting the Supreme
Court's decision in Jackson:
Jackson suggests that when a utility company exercises a
power "traditionally associated with sovereignty," such as
eminent domain, state action may well be present (citation
omitted). However, mere business activities like "the
furnishing of utility services" are not state functions
The PECO actions of which plaintiffs complain
involve soliciting bids on a contract, negotiating a
contract, and breaching a contract. These business
endeavors do not evince any significant connection
with the Commonwealth of Pennsylvania or any of its
Dunlap v. PECO Energy Co., 1996 WL 61777 at *2 (E.D.Pa. 1996).
While it is doubtful in this case that PSE&G was engaging in any acts
traditionally associated with sovereignty based on the facts and
circumstances set forth in the Complaint, Harris has not even bothered to
allege that PSE&G was acting under color of State law in Count II of her
Complaint. Once again, it is clear that Harris has failed to allege a
cause of action upon which relief can be granted.
Under these circumstances, I shall grant Defendants' motion to dismiss
for failure to state a claim upon which relief can be granted without
prejudice. I shall, however, grant Plaintiff leave to amend within thirty
(30) days. If Plaintiff fails to amend within thirty (30) days, or if
the Amended Complaint is deficient, Defendants may renew their motion to
dismiss. See Shane v. Fauver, 213 F.3d 113 (3d Cir. 2000).
V. RULE 11 SANCTIONS
Defendants have moved for sanctions under Rule 11, however, they have
failed to comply with that portion of Rule 11 which requires that: "[a]
motion for sanctions under this rule shall be made separately from other
motions." See Fed.R.Civ.P. 11. Rule 11(c)(1)(A) "provides
that requests for sanctions must be made as a separate motion, i.e.,
not simply included as an additional prayer for relief contained
in another motion. Fed.R.Civ.P. 11, Advisory Committee's Notes to
1993 Amendment. See Slater v. Skyhawk Transportation, Inc.,
187 F.R.D. 185, 201 (D.N.J. 1999).
Rule 11, however, also permits the Court "on its own initiative, [to]
enter an order describing the specific conduct that appears to violate
subsection (b) and directing an attorney, law firm, or party to show
cause why it has not violated subdivision (b) with respect thereto."
Fed.R.Civ.P. 11(c)(1)(B). In deciding Defendants' motion to dismiss, I
have determined that Ms. Harris may have violated Rule 11(b)(2),
however, I must deny Defendants' motion for sanctions because they have
failed to comply with the requirement of Rule 11(c)(1)(A). Accordingly, I
shall issue an Order to Show Cause with this Opinion, which directs Ms.
Harris to show cause whether she has violated Rule 11(b)(2)*fn1 and what
sanctions, if any, should be imposed. In her response to the Order to
Show Cause, Ms. Harris will have the opportunity to demonstrate that she
conducted a "reasonable inquiry," see Fed.R.Civ.P. 11(b)(2), prior to
signing and filing the Complaint in this case.
The Order to Show Cause will be returnable before this Court on January
19, 2001 at 9:30 a.m. Ms. Harris shall file and serve her brief in
response to the Order to Show Cause on or before December 29, 2000.
Defendants shall file their responsive papers on or before January 5,
2001, and Ms. Harris shall file and serve her reply brief, if any, on or
before January 12, 2001. The Order to Show Cause will be decided on the
papers without oral argument. The Court will enter an appropriate form of