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CLEMENT v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY

December 11, 2000

MARK CLEMENT, PLAINTIFF
V.
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:

OPINION

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 plaintiff's Complaint.

III. COUNT I — RETALIATION IN VIOLATION OF THE OPPOSITION CLAUSE
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 ...

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