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Aiellos v. Zisa

February 2, 2010

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, including the City of Hackensack, 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).

This Court has already had occasion to rule on Tomas Padilla's motion to dismiss. See Doc. No. 3 (motion and opening brief); Doc. No. 26 (supplemental opening brief in light of amended complaint); Doc. No. 47 (opinion granting in part and denying in part Padilla's motion, and dismissing RICO count); Doc. No. 56 (opinion denying reconsideration).*fn2

Presently before the Court is Defendant C. Kenneth Zisa's (the "Defendant") motion to dismiss pursuant to Rule 12(b)(6) (the "Motion"). (Doc. No. 24.) The Motion is fully briefed. See Doc. No. 24-6 (the "Opening Brief"); Doc. No. 31-2 (the "Opposition Brief"); Doc. No. 40-1 (the "Reply Brief").*fn3

Two Counts of the twelve count Amended Complaint, Counts V and VIII, were not brought against Defendant. Defendant C. Kenneth Zisa seeks dismissal of eight of the remaining ten counts, i.e., all but Counts X and XI. Thus, even if Defendant C. Kenneth Zisa were to prevail on this Motion, he will not be dismissed from this action as Counts X and XI will go forward.

For the reasons explained below, the Court will dismiss Counts II, VI, VII, and XII. The Court will not dismiss Count I -- the Section 1983 civil rights claim, nor will the Court dismiss Count III -- alleging a cause of action under the (federal) Racketeer Influenced and Corrupt Organizations Act, nor will the Court dismiss Count IV -- alleging a common law civil conspiracy cause of action, nor will the Court dismiss Count IX -- alleging a cause of action under Conscientious Employee Protection Act.

Having considered the parties' filings, federal and state constitutional law, statutory law, and common law, the federal rules, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will GRANT Defendant C. Kenneth Zisa's motion in part, and will dismiss Counts II, VI, VII, and XII. All other relief is DENIED.

II. FACTUAL BACKGROUND ALLEGED IN THE AMENDED COMPLAINT*fn4

The gravamen of the Amended Complaint is that the Hackensack Chief of Police, Defendant C. Kenneth Zisa and Defendant Captain Padilla, and other defendants, engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, seeking, among other things, political donations to further C. Kenneth 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 C. Kenneth 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, afterwards, Defendant C. Kenneth Zisa brought the instant motion to dismiss. (Doc. No. 24.)

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). Generally, the court may not rely on other parts ...


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