The opinion of the court was delivered by: Simandle, District Judge
This First Amendment case involves individuals who were prevented from carrying signs and distributing leaflets at a state-sponsored town hall meeting by state officials who allowed another nonprofit group to engage in those activities. The matter is before the Court on a motion to dismiss by Walter Landgraf, a business administrator for the Middle Township Board of Education, who argues that the Complaint's allegations insufficiently plead his involvement in the unconstitutional conduct [Docket Item 69], and former Governor Jon Corzine's motion to dismiss for similar reasons, as well as qualified immunity [Docket Item 79]. Mr. Landgraf joins in Mr. Corzine's motion, also invoking qualified immunity. For the reasons explained below, the motions will be denied.
This dispute arises out of events at a town hall meeting convened by then New Jersey Governor Jon Corzine at the Middle Township High School Performing Arts Center on January 19, 2008. (Second Am. Compl. ¶ 42.) According to Plaintiffs' allegations, Governor Corzine scheduled the town hall meeting to present a financial restructuring and debt reduction plan to the citizens of Middle Township, and to solicit the citizens' feedback regarding the plan. (Id. ¶ 39.) Plaintiffs, various individuals who opposed the financial restructuring plan, all of whom are members of Liberty and Prosperity 1776, Inc., allege that Mr. Landgraf and Middle Township police advised them that they could not display signs or distribute literature in the auditorium, and forced them to stop displaying signs and distributing literature on the grounds of the facility generally. (Id. ¶ 71, 74, 83.) When Plaintiffs Steve Lonegan and Seth Grossman refused to leave or stop displaying signs on the facility grounds, they were arrested. (Id. ¶ 72, 75.)
Members of a nonprofit organization, Save Our State NJ, Inc., were permitted to set up registration tables inside the Performing Arts Center, distribute literature, display signs, place a banner over the stage, and interact with members of the public, as they had done at previous town hall meetings. (Id. ¶¶ 45-46.) Plaintiffs allege facts to show that Save Our State was a private organization indistinguishable from Liberty and Prosperity 1776 except in its viewpoint. They allege that the State of New Jersey provided no financial support to Save Our State (Id. ¶ 48); Save Our State was registered as a 501(c)(4) advocacy organization with the IRS (Id. ¶ 50); the registered agent and director of Save Our State was Jennifer Godoski, who previously served as an employee in the Commissioner's Office of the New Jersey Department of Transportation, but who severed "all official ties" with the state (Id. ¶¶ 51-52); Save Our State was privately formed for the sole purpose of engaging in political advocacy in furtherance of its individual donor's political and economic interests and not on behalf of the State of New Jersey, and the activities it undertook were for that sole purpose (Id. ¶¶ 55-57, 60); and that the State Of New Jersey exercised no direct control over the activities of Save Our State, and there was no understanding between the State of New Jersey and Save Our State under which Save Our State agreed to aid or assist the State in expressing government speech (Id. ¶¶ 61-62).
Plaintiffs claim that Defendants violated their First Amendment rights by restricting their use of signs and distribution of leaflets while permitting Save Our State's similar speech approving the Governor's plan. Defendants respond that the restrictions were reasonable, content-neutral restrictions based on the security needs of an event featuring the Governor, which were applied in a viewpoint-neutral manner because Save Our State's speech was in fact government speech. Defendants also justify the restrictions based on the prerogative of the temporary user of public forum to control his message and prevent disruption.
Plaintiffs filed the first version of the Complaint on May 28, 2008 naming numerous state officials and state entities as defendants. Plaintiffs initially alleged that Defendants violated their right to the freedom of speech, assembly, and to petition the government in violation of the United States Constitution and the New Jersey Constitution; that Defendants violated Plaintiff Grossman's right to be free from unreasonable searches and seizures in violation of the United States Constitution and the New Jersey Constitution; and asserted claims of civil rights conspiracy pursuant to 42 U.S.C. § 1985 and refusal to prevent a civil rights conspiracy pursuant to 42 U.S.C. § 1986.
By an Order and Opinion of March 3, 2009, this Court dismissed with prejudice Plaintiffs' claims against the state entities and the individual state officials in their official capacities because of Eleventh Amendment immunity, as well as the claims other than the free speech claims.
The Court also examined Plaintiffs' free speech claims. Defendants had moved to dismiss these claims, arguing that they failed to state a claim because of the First Amendment's allowance for content-neutral time, place, and manner restrictions. In particular, they pointed to security interests and the prevention of disruption as sufficient justifications for a content-neutral restriction on signs and distribution of literature. In their opposition to the motion, Plaintiffs had submitted a certification of Plaintiff Seth Grossman containing allegations of facts related to Save Our State which were not mentioned in the Complaint, and which Plaintiffs believed supported a claim of viewpoint discrimination. (Grossman Cert. ¶¶ 53-54.) In response to the certification, Defendants argued that the speech of Save Our State was government speech, and therefore could lawfully be treated differently from Plaintiffs' speech.
The Court found that if Plaintiffs desired to pursue a claim based upon a theory of viewpoint discrimination, they needed to file an amended complaint clarifying the nature of their claims, and with factual allegations supportive of each such theory. The Court also required that in their amended complaint, Plaintiffs had to specify which Defendants were alleged to have engaged in which conduct because the Complaint simply referred to Defendants collectively.
The Amended Complaint failed to remedy the problem of collective pleading, and stated many claims using legal boilerplate, such as that a defendant "personally participated in" unconstitutional conduct without specifying the nature of the participation. The Court dismissed the Amended Complaint without prejudice to further amendment, ordering that to prevent the recurring ambiguity, any paragraph of the Second Amended Complaint that contained collective reference to Defendants would be taken to apply to all Defendants, and such allegations needed to comply with Rule 11, Fed. R. Civ. P. Similarly, the Court warned that any paragraph of the Second Amended Complaint that claimed that one or more individuals was involved in unconstitutional conduct and then referred to a list of allegedly unconstitutional actions, (e.g. Am. Compl. ¶¶ 65-74), would be construed as an allegation that each of the individuals was personally involved in every action listed.
The Court also found that the Amended Complaint still did not provide adequate factual allegations with respect to the relationship between Save Our State and Defendants needed for this Court to assess whether Save Our State had engaged in private or government speech. Plaintiffs were asked to clarify their factual allegations with regard to whether and to what extent Defendants controlled the content of the expressive activity of Save Our State, and clarify the purpose for the creation of the organization.
The Second Amended Complaint was filed on November 2, 2009. It deletes a number of parties, retaining claims against former Governor Jon Corzine, three members of the Middle Township Police Department (Paul Fritsch, James D'Alonzo, and Richard Smedberg) and Secretary of the Middle Township Board of Education, Walter Landgraf, as well as a number of unnamed defendants. It also adds a fourth Middle Township policeman, Ronald Miller Jr.
The Second Amended Complaint offers more specific allegations with respect to the involvement of each Defendant, and it clarifies Plaintiffs' allegations regarding the relationship between the State of New Jersey and the nonprofit organization Save Our State.
Governor Corzine's renewed motion to dismiss argues that the Governor is entitled to qualified immunity because Save Our State was, or he could have reasonably believed it was, expressing government speech, and that therefore the restrictions on signs and leaflets were permissible. He also argues that the Complaint fails to allege his personal participation in the speech restrictions, and that it therefore must be dismissed on that independent basis. Mr. Landgraf joins these arguments, and argues that his carrying out the orders of the Governor's security team is an insufficient factual basis for his personal liability.
The sufficiency of pleadings in federal court is governed by Rule 8, Fed. R. Civ. P., among others, a rule that is designed to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).*fn1 A Complaint may fail to state a claim either because what it asserts is not unlawful, or because the facts alleged do not give the defendants sufficient notice of the factual basis for the claim. As the Third Circuit Court of Appeals has affirmed, "the Federal Rules do not require a claimant to set out in detail the facts upon which he bases his claim. Rather, the complaint must only give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Thomas v. Independence Tp., 463 F.3d 285, 295 (3d Cir. 2006) (internal quotations and citations omitted).
Some facts, however, are necessary. In order to give a defendant fair notice, and to permit early dismissal if the complained-of conduct is not unlawful, a complaint must allege, in more than legal boilerplate, those facts about the conduct of each defendant giving rise to liability. Twombly, 550 U.S. at 555; Fed. R. Civ. P. 11(b)(3). These factual allegations must present a plausible basis for relief (i.e. something more than the mere possibility of legal misconduct). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009). Additionally, the Complaint may be required to add more factual specificity when qualified immunity is raised as a defense. Thomas v. Independence Tp., 463 F.3d 285, 289 (3d Cir. 2006) (holding that when a lack of factual specificity in a complaint prevents the defendant from framing a fact-specific qualified immunity defense, the appropriate remedy is the granting of a defense motion for a more definite statement).
The distinction between a plausible claim and "mere possibility" is illuminated by Iqbal. Relying on "judicial experience and common sense," and excluding conclusory allegations, the Supreme Court found the defendants' lawful explanation for the alleged conduct to be the "more likely" explanation, and therefore that the allegations of unlawful behavior were not sufficient to plausibly state a claim. Id. at 1950-51.
In its review of Defendants' motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). ...