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Conway v. Davis

United States District Court, D. New Jersey

July 25, 2017

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

          A. MICHAEL BARKER BARKER, GELFAND & JAMES LINWOOD GREENE 210 NEW ROAD SUITE 12 LINWOOD, N.J. 08221 On behalf of Defendant Raymond Davis

          ERIN 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 Laura Pfrommer


          HILLMAN, District Judge

         This 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.

         Plaintiff 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.[1]

         All the defendants have moved to dismiss Plaintiff's claims against them.[2] 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 capacities.

         Plaintiff has opposed Davis's motion to dismiss, but he has not submitted an opposition to the other five defendants' motion.[3]


         A. Subject matter jurisdiction

         Because 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.

         B. Standard for Motion to Dismiss

         When 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).

         A 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 Twombly.”).

         Following 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)).

         A court 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).

         C. Analysis

         Addressing 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 ...

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