United States District Court, D. New Jersey
BOROUGH OF WESTVILLE, NEW JERSEY and TRI-COUNTY MUNICIPAL JOINT INSURANCE FUNDS, Plaintiffs,
CITY OF PHILADELPHIA, Defendant
For Plaintiffs: M. James Maley, Jr., Esq., MALEY & ASSOCIATES, Collingswood, New Jersey.
For Defendant: Stephen M. Calder, Esq., PALMER BIEZUP & HENDERSON LLP, Camden, New Jersey.
JOSEPH E. IRENAS, SENIOR UNITED STATES DISTRICT JUDGE.
Fire Boat #7, owned by Plaintiff, the Borough of Westville, New Jersey, was damaged allegedly by a large wake caused by the fire boat Independence operated by Defendant, the City of Philadelphia, Pennsylvania, during the course of responding to a fire. The Borough of Westville, and Plaintiff Tri-County Municipal Joint Insurance Fund, seek $140,600 in damages.
Plaintiffs assert claims for negligence, as well as constitutional violations pursuant to 42 U.S.C. § 1983. Philadelphia presently moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, the motion will be granted as to the § 1983 claim and denied as to the negligence claims.
The Amended Complaint alleges the following facts.
On September 16, 2010, a fire broke out at the BP Petroleum Plant in Paulsboro, New Jersey. The fire spread to the " 4th Dock" at the plant. Gloucester County Emergency Response (GCER) dispatched Westville's Fire Boat #7 to the scene.
Sometime thereafter, GCER also dispatched Philadelphia's Independence to the scene. However, prior to Independence 's arrival, the fire was contained, and GCER notified Independence to " hold off." " Independence made an abrupt turn at excessive speed to return to its dock in Philadelphia. As a result of this abrupt turn, two large wakes pushed [Westville's Fire Boat #7] against industrial equipment docked beside the operational zone and the bulkhead causing severe damage." (Amend. Compl. ¶ 23-24)
The damage to Fire Boat #7 was declared a total loss by a claims adjuster.
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint
" for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 8(a)(2). While a court must accept as true all factual allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The Court first addresses the § 1983 claim before turning ...