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Vandegrift v. Bowen

June 30, 2009


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


Presently before the Court are three separate motions filed by the parties. First, Defendant the City of Margate ("Margate") [32] moves to dismiss two counts in the complaint pursuant to Fed.R.Civ.P. 12(c). Second, Third Party Defendant The Atlantic County Joint Insurance Fund ("JIF") [39] moves to dismiss the third party complaint pursuant to both Rules 12(b)(6) and (c). In the alternative, JIF seeks to compel arbitration. Finally, Plaintiff Jennifer Vandegrift seeks to intervene [48] in the third party complaint as a matter of right, pursuant to Fed.R.Civ.P. 24(a). The Court has reviewed the written submissions of the parties and heard oral argument on the motions on May 18, 2009.

However, on June 11, 2009, the parties participated in a telephone conference with the magistrate judge. The upshot was that JIF and Vandegrift consented to having their respective pending motions dismissed without prejudice and the parties agreed to resolve the coverage issues through participation in alternative dispute resolution.*fn1

Margate agreed to participate in mediation following resolution of its pending motion to dismiss, which is now the only motion before this Court. For the reasons expressed on the record during oral argument and for the reasons that follow, Margate's motion to dismiss is granted in part and denied in part.


As they pertain to this motion, the relevant underlying facts of this case are relatively straightforward and can be summarized as follows. Plaintiff Jennifer Vandegrift ("Vandegrift") was the driver of a motor vehicle that was subject to a motor vehicle stop by Defendant William Bowen ("Bowen"), a police officer employed by Margate. (Compl. ¶ 7). During the course of the motor vehicle stop Bowen asked Vandegrift for her telephone number and also requested that she remove her undergarments and give them to him. (Id. at ¶8 ). Vandegrift gave Bowen her phone number and explained that she was not wearing any undergarments. (Id. at ¶¶ 8-9). After this exchange, Bowen permitted Vandegrift to leave the scene without issuing any traffic offense tickets even though she was visibly intoxicated. (Id. at ¶ 9).

Later that evening, Vandegrift was again stopped by a police patrol car in the neighboring town of Ocean City, New Jersey and was arrested for driving under the influence. (Id.) Shortly after her release, Vandegrift received a phone call from a caller who eventually identified himself as Bowen. (Id. at ¶ 10). Bowen called again the following morning. (Id. at ¶ 11.) During these phone calls Bowen made sexually explicit overtures towards Vandegrift and propositioned her for sex. (Id. at ¶ 10). She filed a Notice of Tort Claim alleging a violation of her civil rights and emotional distress. (Id. at ¶ 12). The Cape May County Prosecutor and the City of Margate conducted an investigation which resulted in the filing of administrative charges against Bowen. (Id. at ¶ 13). The administrative hearing resulted in the recommended termination of Bowen; Bowen appealed and the parties agreed to give Bowen the option to resign and he did so. (Id. at ¶ 14). This lawsuit followed.

There are several counts in the original complaint that seek to impose liability upon Margate. However, Margate moves for dismissal only as to Count VI and Count X in part.


A. Standard on a Motion to Dismiss Under Rules 12(b)(6) and 12(c)

A motion for judgment on the pleadings under Rule 12(c) is considered using the same standards as when considering a motion to dismiss under Rule 12(b)(6). Shelly v. Johns-Manville Corp., 798 F.2d 93, 97 n.4 (3d Cir. 1986). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6); see In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are "enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact)." Id. at 1965 (internal citations omitted).

When deciding a motion to dismiss pursuant to Rule 12(b)(6), only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration. Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). A district court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). Moreover, these allegations and inferences must be viewed in the light most favorable to the plaintiff. Id. However, a court need not accept "'unsupported conclusions and unwarranted inferences,'" Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), and "[l]egal conclusions made in the guise of factual allegations . . . are given no presumption of truthfulness," Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005)) ("[A] court need not credit either 'bald assertions' or 'legal conclusions' in a complaint when deciding a motion to dismiss.")

It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007). Instead, the court simply asks whether the plaintiff has articulated "enough ...

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