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Chepilko v. City of Atlantic City

March 29, 2010


The opinion of the court was delivered by: Hon. Noel L. Hillman, U.S.D.J.


HILLMAN, District Judge

This matter comes before the Court on the motion of Defendant City of Atlantic City and Defendant David Davidson, for Judgment on the Pleadings. For the reasons expressed below, Defendants' Motion will be granted and Plaintiff's Complaint will be dismissed.


Plaintiff is a resident of the Borough of Brooklyn in New York City, New York.*fn1 On April 29, 2006 at approximately 5:00 p.m., Plaintiff alleges that he was lawfully present on the Atlantic City Boardwalk in Atlantic City, New Jersey advertising his photography services for hire with a folder containing samples of instant photographs. At some point during the evening Plaintiff was allegedly approached by Defendant, Police Officer David Davidson ("Davidson"), who demanded to see a mercantile license. After Plaintiff produced his Certificate of Authority, Davidson asked him to cease advertising on the boardwalk. When Plaintiff inquired as to the basis for this, Davison ordered him to turn around and put his hands behind his head, searched his body including his groin area, forcefully removed his wallet, removed his identification from his wallet, and proceeded to question him about his identification. Davidson then instructed Plaintiff to leave the Boardwalk under the threat of arrest.

After leaving the Boardwalk, Plaintiff called 911 and complained about Davidson's conduct. In response, Sergeant Brody arrived and allowed Plaintiff to remain on the Boardwalk, but prohibited him from selling instant photographs. Subsequently, on October 22, 2006 and November 11, 2006, Plaintiff returned to the Atlantic City Boardwalk. Plaintiff asserts that on both trips back to the boardwalk he was issued a summons for violating Atlantic City's municipal ordinances which prohibit the sale of merchandise on its boardwalk without a license.

On April 28, 2009, Plaintiff, who is representing himself pro se, filed a Complaint in the United States District Court for the Eastern District of New York against the moving Defendants and Sergeant Brody.*fn2 The court found, sua sponte, that pursuant to 28 U.S.C. § 1391, venue was not proper "[s]ince defendants are deemed to reside in New Jersey, and the events or omissions giving rise to plaintiff's claim occurred in New Jersey." Accordingly, on May 4, 2009, the court entered an Order transferring the case to this Court pursuant to 28 U.S.C. § 1406(a). On July 6, 2009, Defendants filed their Answer, asserting the statute of limitations as an affirmative defense. Defendants now move for judgment on the pleadings.


A. Jurisdiction

This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.

B. Standard for Motion for Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), any party may file for a judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial." Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991); Fed. R. Civ. P. 12(c). Rule 12(h)(2)(B) "provides that a defense of failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings." Id.; Fed. R. Civ. P. 12(h)(2)(B). Therefore, in a Rule 12(c) motion for a judgment on the pleadings, this Court applies the same legal standards pursuant to Rule 12(b)(6). Id.

When considering a motion to dismiss a complaint under Rule 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the Plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a Plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 550 U.S. 544, 562 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington ...

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