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Threaston Warren, Jr., et al v. Albert Fisher

September 12, 2011


The opinion of the court was delivered by: Simandle, District Judge:



This matter arises out of a complex dispute between Plaintiffs Threaston Warren, Jr.; Marjorie Warren; and Continental Aggregate Corp., LLC and Defendants Township of Quinton, New Jersey; Albert Fisher, III; Robert Howell; Joseph Hannagan, Jr.; Michael Gibson; and Sharon Fox. Plaintiffs claim that the defendants colluded to injure Plaintiffs Threaston and Marjorie Warren and Continental Aggregate Corp. by attempting to drive Continental out of business or out of Quinton Township. Plaintiffs' First Amended Complaint alleges fifteen counts, including the New Jersey Racketeer Influenced and Corrupt Organization Act (RICO) (Counts 1 and 2), civil conspiracy (Count 3), violations of 42 U.S.C. §§ 1983 and 1985 (Counts 4-8), tortious and intentional interference with prospective economic advantage (Counts 9 and 10), trade libel/commercial disparagement (Count 11), assault and battery (Count 12), trespass to land (Count 13), and negligence (Count 14).*fn1

Presently before the Court are two motions to dismiss. Defendant Michael Gibson moves to dismiss as to himself the §§ 1983 and 1985 claims (Counts 4-6 and 8)*fn2 , and also to dismiss the negligence claim as to himself (Count 14), for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Item 28.] Defendant Sharon Fox joins in Defendant Gibson's motion with regard to Counts 4-6 and 8, and additionally moves to dismiss as to herself, Counts 1 through 11 and 13 for failure to state a claim. [Docket Item 31.] Because the Court finds that Plaintiffs' Amended Complaint does not show an entitlement to relief from these Moving Defendants on the identified causes of action, the Court will grant Defendants' motions.


The facts set forth here are those alleged in the Amended Complaint which the Court must accept as true for purposes of a Rule 12(b)(6) motion. Plaintiffs Threaston (Ed) Warren and Marjorie Warren lease land to Plaintiff Continental Aggregate Corp. in Quinton Township on which Continental operates a mining operation. Am. Compl. ¶¶ 14-15. Beginning in July, 2007, Plaintiffs began experiencing difficulties with various permit and site plan approvals in Quinton Township, which first materialized with the denial of Plaintiff Continental's proposed land use application and subsequently devolved from there. Am. Compl. ¶¶ 19-31. Plaintiffs allege that over the course of the next two and one half years, Defendants, allegedly acting in concert with one another, engaged in a sustained and far-ranging conspiracy with the aim of driving Plaintiff Continental out of Quinton Township.

To this end, various combinations of Defendants took several courses of action, including the following: negligently or intentionally publishing false allegations that Plaintiffs violated the law (Am. Compl. ¶¶ 44-48); targeting Plaintiffs for an inordinate number of site inspections (Am. Compl. ¶¶ 49-52, 71-75); creating a sham position within the Quinton township government for the sole purpose of harassing Plaintiffs (Am. Compl. ¶¶ 53-62); attempting to change Quinton Township ordinances to further restrict Plaintiffs' business (Am. Compl. ¶¶ 63-70); physically attacking Plaintiff Ed Warren after a Quinton Township Planning Board meeting (Am. Compl. ¶¶ 76-81); attempting to "pack" the Quinton Planning Board with members hostile to Plaintiffs' interests (Am. Compl. ¶¶ 82-86); and trespassing on Plaintiffs' land to steal soil samples in an effort to create evidence of illegal mining operations (Am. Compl. ¶¶ 87-92). Plaintiffs allege that this conspiracy led, ultimately, to the loss of business of approximately $30 million. Am. Compl. ¶ 96.

Defendant Quinton Township is a municipality of the State New Jersey, and several of the Defendants, including Defendants Fisher, Howell, and Hannagan, were public officials of Quinton at the time of the events alleged (hereafter, "the Township Defendants"). Am. Compl. ¶¶ 8-11. The Moving Defendants, Defendants Gibson and Fox, however, are not alleged to have been public officials in any capacity, but merely private individuals who, Plaintiffs claim, have conspired with the Township Defendants. Am. Compl. ¶¶ 12-13.

Specifically, Plaintiffs allege the following facts about Defendant Gibson. First, he sent approximately five letters of complaint*fn3 to Quinton Township and two letters to the Salem County Department of Health over an unknown period of time that contained false statements claiming Plaintiff Continental was engaging in illegal or unsafe activities on the Warrens' property. Am. Compl. ¶¶ 45-48. The Township Defendants allegedly used Gibson's letters to justify their scheme of exposing Plaintiffs to harassment and an inordinate number of inspections. Id. ¶ 50. Plaintiffs allege that "a number of these inspections were directed as a result of and in conjunction with defendant Gibson's false allegations. . . ." Id. ¶ 75.

Secondly, both Defendant Gibson and Defendant Fox physically attacked Plaintiff Ed Warren on April 14, 2009, after a Quinton Township Planning Board meeting that all three attended. Id. ¶¶ 77-78. Plaintiffs allege that this attack was part of the conspiracy. Id. ¶ 81.

Plaintiffs initiated this action on September 14, 2010 in the Superior Court of New Jersey, Salem County. On October 15, 2010, Defendant Township of Quinton removed the action to this Court, pursuant to 28 U.S.C. § 1446, as the Complaint alleged violations of federal law. [Docket Item 1.] Thereafter, Defendant Sharon Fox filed a motion to dismiss on November 10, 2010. [Docket Item 10.] Plaintiffs then filed their Amended Complaint [Docket Item 14], whereupon Defendant Fox withdrew her original motion to dismiss. [Docket Item 30.] Both Defendant Gibson and Defendant Fox eventually filed motions to dismiss portions of the Amended Complaint. Defendant Gibson moves to dismiss, as to himself, Counts 4, 5, 6, 8, and 14 of the Amended Complaint. Defendant Fox moves to dismiss, as to herself, all counts except Counts 12 and 14.


A. Standard of Review

In order to give defendant fair notice, and to permit early dismissal if the complained-of conduct does not provide adequate grounds for the cause of action alleged, a complaint must allege, in more than legal boilerplate, those facts about the conduct of each defendant giving rise to liability. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a) and 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). The Rule 12(b)(6) standard applies to complaints that were originally filed in state court and thereafter removed to federal court, see Fagin v. Gilmartin, 432 F.3d 276 (3d Cir. 2005), especially where, as in the present case, the plaintiff has had an opportunity, after removal, to amend the complaint to better conform to the federal standards post-Twombly and Iqbal.

In its review of a 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)). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949.

The Third Circuit Court of Appeals instructs district courts to conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim upon which relief may be granted. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (citations omitted). The analysis should be conducted as follows:

(1) the Court should separate the factual and legal elements of a claim, and the Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions; and (2) the Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief, so the complaint must contain allegations beyond ...

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