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Aiellos v. Zisa

October 20, 2009

THOMAS AIELLOS, JOSEPH INGLIMA, DONALD PIERCE , SCOTT SYBEL, ANTHONY DUARDO, RALPH CAVALLO, AND VINCENT RIOTTO, PLAINTIFFS,
v.
CHIEF C. KENNETH ZISA, JOSEPH ZISA, TOMAS PADILLA, KEVIN TOOMEY, ANTHONY TREZZA, PHILLIP CARROLL, CAPTAIN THOMAS SALCEDO, CITY OF HACKENSACK, AND SERGEANT TIMOTHY LLOYD, DEFENDANTS.



The opinion of the court was delivered by: Hon. William J. Martini

OPINION

MEMORANDUM OPINION*fn1

I. INTRODUCTION

On June 24, 2009, Plaintiffs, current and former officers of the Hackensack Police Department ("HPD"), filed an eleven-count civil rights action against Defendant HPD Chief of Police, C. Kenneth Zisa, and others, alleging that the Defendants violated their constitutional rights. (Doc. No. 1.) On August 3, 2009, Plaintiffs filed a more detailed twelve-count Amended Complaint, (Doc. No. 9), which has since become the operative complaint by order of the Court, (Doc. No. 19).

Presently before the Court is Defendant Tomas Padilla's motion to dismiss (the "Motion"), (Doc. No. 3), which although filed prior to the Amended Complaint, addresses the Amended Complaint through supplemental briefing. Padilla's motion has been fully briefed. See Memorandum of Law in Support of Defendant, Tomas Padilla's, Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) ("Opening Br."), (Doc. No. 3-5); Memorandum of Law in Opposition to Defendant Padilla's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) ("Opp'n Br."), (Doc. No. 10); Tomas Padilla Reply Brief ("Reply Br."), (Doc. No. 18); see also Supplemental Opening Brief ("Supp. Opening Br."), (Doc. No. 26); Supplemental Opposition Brief (Supp. Opp'n Br."), (Doc. No. 29). Of the twelve counts in the Amended Complaint, only four are litigated in the Motion. They include: (A) Count I--the 42 U.S.C. § 1983 (the "Section 1983") claim; (B) Count II--the Racketeer Influenced Corrupt Organizations Act ("RICO") claim; (C) Count IV--the conspiracy claim; and (D) Count XII--the Misappropriation of Funds and Breach of Fiduciary Relationship claim.

Having considered the parties' filings (including supplemental filings addressing the Amended Complaint), federal and state constitutional and statutory law, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will GRANT in part, and DENY in part, Defendant Padilla's motion to dismiss. Specifically, Counts II and XII are dismissed against Padilla; the motion is DENIED in all other respects.

II. FACTUAL BACKGROUND ALLEGED IN THE AMENDED COMPLAINT

The gravamen of the Amended Complaint is that the Hackensack Chief of Police, Defendant Zisa, in conjunction with Defendant Captain Padilla, (the movant of the Motion), and other Defendants engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, seeking, among other things, political donations to further Zisa and Padilla's political career and the political career of those allied with them, including candidates for office within the Policemen's Benevolent Association ("PBA") of Hackensack. It is further alleged that those who were not allied with Zisa and Padilla, including those officers who refused to donate to their political campaigns, were subject to retaliation and threats of retaliation in violation of Plaintiffs' First Amendment free speech and freedom of association rights. Thereafter, Plaintiffs filed a complaint, subsequently superseded by the Amended Complaint, and Defendant Padilla brought the instant motion to dismiss.

III. STANDARD OF REVIEW

The Defendant's motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. at 555).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

IV. ANALYSIS

The motion argues, and Plaintiffs do not contest, that only four of the counts in the Amended Complaint, i.e., (A) Count I--the Section 1983 claim; (B) Count II--the RICO claim;

(C) Count IV--the conspiracy claim; and (D) Count XII--the Misappropriation of Funds and Breach of Fiduciary Relationship claim, apply to Defendant Padilla, and it further argues, on a variety of grounds, that each of these four counts against Defendant Padilla should be dismissed for failure to state a claim. This opinion addresses each of Defendant Padilla's contentions in turn. At the outset, however, the Court notes that Plaintiffs' Supplemental Opposition Brief concedes that Count XII does not apply to ...


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