United States District Court, D. New Jersey
MICHAEL CONWAY, Proprietor EHT Tavern, LLC. doing business as REF'S TAPHOUSE & GRILL, Plaintiff,
RAYMOND DAVIS, CHIEF OF POLICE EGG HARBOR TOWNSHIP POLICE DEPARTMENT In His Official and Individual Capacities, JAMES "SONNY" J. MCCULLOUGH Mayor, ROBERT J. MILLER Township Administrator, EILEEN M. TEDESCO Town Clerk/Registrar, JOE CAFERO Council Member, FRANK FINNERTY, and LAURA PFROMMER Council Member In their individual and official capacities, Defendants.
MICHAEL CONWAY 230 MALLARD LANE PLEASANTVILLE, N.J. 08232
Appearing pro se
MICHAEL BARKER BARKER, GELFAND & JAMES LINWOOD GREENE 210
NEW ROAD SUITE 12 LINWOOD, N.J. 08221 On behalf of Defendant
R. THOMPSON BIRCHMEIER & POWELL, ESQS. 1891 STATE HIGHWAY
50 PO BOX 582 TUCKAHOE, N.J. 08250-0582 On behalf of
Defendants James "Sonny" J. McCullough, Robert J.
Miller, Eileen M. Tedesco, Joe Cafero, Frank Finnerty, and
HILLMAN, District Judge
matter concerns claims by Plaintiff, Michael Conway,
Proprietor of EHT Tavern, LLC, which does business as
Ref's Taphouse & Grill in Egg Harbor Township, New
Jersey. Plaintiff says his application to extend temporarily
his liquor license to the outside area of his restaurant for
one night on June 12, 2016 was denied because he would not
pay a $400 fee to Egg Harbor Township as demanded by the
Township's police chief, defendant Raymond Davis.
Plaintiff claims that the $400 fee was arbitrarily imposed
and amounted to extortion. Because Plaintiff refused to pay
the fee, Davis voided Plaintiff's Division of Alcoholic
Beverage Control (“ABC”) temporary application.
claims that the decision to extend liquor licenses rests
solely with the ABC, and Davis was without legal authority to
unilaterally deny his application, which constitutes a
violation of his due process rights. Plaintiff also claims
that the township clerk, who physically stamped
“void” on his application, the mayor, a township
administrator, and three town council members also violated
his due process rights because they failed to properly
supervise Davis and prevent him from illegally demanding a
$400 fee. Plaintiff claims that he suffered a loss of
business revenue by defendants' actions, and is seeking
$750, 000 in damages.
defendants have moved to dismiss Plaintiff's claims
against them. Davis argues that Plaintiff has not
alleged any due process injury because he did not pay the
$400 fee. Davis also argues that Plaintiff has failed to
exhaust his administrative remedies with the ABC as required
by New Jersey regulations. The other defendants argue that
Plaintiff's conclusory allegations that they were
responsible for Davis's actions are insufficient to state
claims against them, and that Plaintiff has failed to allege
any conduct or action by the mayor, other than simply naming
him in the caption of his complaint. The town administrator
and clerk defendants further argue that they are entitled to
qualified immunity, and the three town council member
defendants argue that they are entitled to absolute immunity
for any alleged actions they undertook in their individual
has opposed Davis's motion to dismiss, but he has not
submitted an opposition to the other five defendants'
Subject matter jurisdiction
Plaintiff has brought claims pursuant to 42 U.S.C. §
1983 for alleged violations of his constitutional rights,
this Court has jurisdiction of this matter pursuant to 28
U.S.C. §§ 1331 and 1343.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 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 Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
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, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“Iqbal . . . provides the
final nail-in-the-coffin for the ‘no set of facts'
standard that applied to federal complaints before
the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6). First, the factual and legal elements of a
claim should be separated; a district court must accept all
of the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Fowler, 578 F.3d at
210 (citing Iqbal, 129 S.Ct. at 1950). 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. (quoting Iqbal, 129 S.Ct. at 1950). A
complaint must do more than allege the plaintiff's
entitlement to relief. Id.; see also Phillips v.
Cnty. 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 Coat Factory Sec. Litig.,
114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears
the burden of showing that no claim has been presented.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.2d 1406, 1409 (3d Cir. 1991)).
in reviewing a Rule 12(b)(6) motion must only consider the
facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of judicial notice. S.
Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may
consider, however, “an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). If any other matters outside the pleadings are
presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56. Fed.R.Civ.P. 12(b).
first the motion to dismiss of the township administrator,
clerk, and three council members, the Court finds that
Plaintiff's complaint does not meet the Rule 8 and
Twombly/Iqbal pleading standards. Plaintiff has not
alleged any conduct by the mayor, and for the other four
defendants, Plaintiff states, without any factual support,
that they are responsible ...