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Richard Tagliamonte v. Wally Wang

February 17, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh




This matter comes before the Court upon motion by Jeff Welz, public safety director of Weehawken, New Jersey, and the Weehawken John Doe Defendants ("Defendants") to dismiss the complaint as to them pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons contained herein, the motion is granted.


This case has a long and interesting procedural history. It began with the indictment of Plaintiff on charges of credit card and mail fraud in October, 2004. On September 22, 2005, prior to any adjudication of Plaintiff's criminal indictment, Plaintiff filed a complaint, asserting that in the course of the investigation leading to his indictment, defendants Wally Wang, a U.S. postal inspector, and other John Doe postal inspectors, as well as a John Doe United States Attorney in New Jersey, unlawfully searched his apartment in violation of the Fourth Amendment to the United States Constitution, and damaged property therein. On March 15, 2006 this Court ordered that Plaintiff's complaint be dismissed based on the Court's belief that Plaintiff's Fourth Amendment claims were premature under Heck v. Humphrey, 512 U.S. 477 (1974). Plaintiff appealed, and the Third Circuit vacated the judgment, and remanded for this Court to reconsider the propriety of allowing Plaintiff's civil claims to proceed. This Court, in an order and opinion issued on January 27, 2010, allowed Plaintiff's suit to proceed.

In the interim, between the filing of Plaintiff's initial complaint, and the instant motion, Plaintiff was convicted after a jury trial, and sentenced by this Court to a period of incarceration. Plaintiff appealed his conviction, and on August 10, 2009 the Third Circuit affirmed the judgment and sentence. In the meanwhile, Plaintiff filed an amended complaint in this civil case on February 24, 2010.*fn1 The amended complaint added new Defendants, based on a new theory which Plaintiff maintains he was not, nor could have been, aware of until the actions of the new Defendants came to his attention during his criminal trial in 2007. The instant motion to dismiss involves only these new defendants, namely Jeff Welz, the public safety director of Weehawken, New Jersey, and the Weehawken John Doe Defendants. None of the other named and unnamed Defendants are implicated in the Court's decision as to the instant motion, and the discrete issue it presents.


A. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state " 'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir.2008) ( quoting Twombly, 550 U.S. at 556). The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1955, 173 L.Ed.2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) ( quoting Iqbal, 129 S.Ct. at 1949). The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' " Id. at 210-11 ( quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir.2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Iqbal, 129 S.Ct. at 1949.

B. Statute of Limitations

The Third Circuit explained in Brown v. Foley 810 F.2d 55, 56 (C.A.3 (N.J.),1987) "that the statute of limitations to be applied in all cases brought under § 1983 is the statute of limitations of the state involved which applies to actions for personal injuries. In New Jersey that statute is N.J.S.A. 2A:14-2, which provides that an action for injury to the person caused by wrongful act, neglect or default must be commenced within two years of the accrual of the cause of action."

C . Fed. R. Civ. P. 15(c)

Fed. R. Civ. P. 15(c) states, in relevant part, that "[A]n amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be ...

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