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Turano v. Port Authority of New York and New Jersey

United States District Court, D. New Jersey

February 7, 2018

JESSE TURANO, et al., Plaintiffs,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Defendants.

          MEMORANDUM

          Esther Salas, U.S.D.J.

         This matter comes before the Court on Defendants' motion to dismiss Plaintiffs' Amended Complaint (D.E. No. 24 (“AC”)). (D.E. No. 29). The Court has considered the parties' submissions in support of and in opposition to the instant motion and decides the matter without oral argument under Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the Court DENIES Defendants' motion to dismiss.

         Factual and Procedural Background.[1]

         Plaintiffs initiated this action on May 6, 2016. (D.E. No. 1). In their original Complaint, Plaintiffs alleged (i) violations of 42 U.S.C § 1983 by depriving Plaintiffs of their “right to hold employment without infringement of their First Amendment right to freedom of speech and association” (id. ¶¶ 383-90); (ii) violations of the “provision of the promotional announcement[]” such that Plaintiffs invoke an action in lieu of a prerogative writ under New Jersey Court Rule 4:69 (id. ¶¶ 391-97); (iii) violations of the New Jersey Civil Rights Act and the New Jersey Constitution (id. ¶¶ 398-407); (iv) violations of the New York Constitution (id. ¶ 407-15); (v) fraud by knowingly misrepresenting that “the promotional process would be consistent with the provisions set forth in the promotional announcement[]” (see Id. ¶¶ 416-20); and (vi) estoppel based on Defendants' misrepresentation that they would follow the provisions of the promotional announcement (see Id. ¶¶ 421-25).

         Defendants moved to dismiss the original Complaint on July 28, 2016. (D.E. No. 10). Plaintiffs opposed Defendants' motion on September 6, 2016. (D.E. No. 16). Defendants replied on September 30, 2016. (D.E. No. 17). On March 31, 2017, this Court granted Defendants' motion and dismissed Plaintiffs' claims without prejudice to Plaintiffs' right to file an amended complaint. (D.E. No. 21 (“March 2017 Opinion”); D.E. No. 22 (“March 2017 Order”)).

         On April 27, 2017, Plaintiffs filed an Amended Complaint alleging (i) violations of 42 U.S.C § 1983 by depriving Plaintiffs of their “right to hold employment without infringement of his First Amendment right to freedom of speech and association” (Count I) (AC ¶¶ 393-401); (ii) violations of the New Jersey Civil Rights Act (“NJCRA”) and the New Jersey Constitution (Count II) (see Id. ¶¶ 402-10); (iii) violations of the New York Constitution (Count III) (see id. ¶¶ 411-19); and (iv) fraud by knowingly misrepresenting that “the promotional process would be consistent with the provisions set forth in the promotional announcements” (Count IV) (see Id. ¶¶ 420-25).

         Defendants moved to dismiss the Amended Complaint on June 19, 2017. (D.E. No. 29-4 (“Defs. Mov. Br.”)). Plaintiffs opposed Defendants' motion on July 21, 2017. (D.E. No. 31-1 (“Pls. Opp. Br.”)). And Defendants submitted a reply in further support of their motion on July 31, 2017. (D.E. No. 32 (“Defs. Reply Br.”)). The matter is now ripe for resolution.

         In its March 2017 Opinion, the Court provided a detailed overview of the factual background and procedural history of this matter. (See March 2017 Opinion at 1-5). Therefore, the Court writes primarily for the parties and assumes familiarity with the underlying factual and procedural history. See Schindler Elevator Corp. v. Otis Elevator Co., No. 09-0560, 2010 WL 4687746, at *1 (D.N.J. Nov. 10, 2010).[2] Specifically, the Court will evaluate whether Plaintiffs have cured the deficiencies addressed in the Court's March 2017 Opinion.

         Legal Standard.

         Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth “a short and plain statement of the claim showing that a pleader is entitled to relief.” That statement must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although the pleading standard announced by Rule 8 does not require detailed factual allegations, it demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To withstand a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         “When reviewing a motion to dismiss, [a]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required to accept as true “legal conclusions, ” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Additionally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

         Finally, Federal Rule of Civil Procedure 9(b) “imposes a heightened pleading requirement concerning allegations of fraud or mistake.” Giercyk v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. 13-6272, 2015 WL 7871165, at *2 (D.N.J. Dec. 4, 2015). “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). A plaintiff may satisfy Rule 9(b) by pleading the “date, place or time” of the fraud, or through “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004). “Plaintiffs also must allege who made a misrepresentation to whom and the general content of the misrepresentation.” Id.

         Count I: First Amendment Claim.

         To establish a claim under 42 U.S.C. § 1983, a plaintiff must establish that a person acting under color of state law deprived him or her of a federal right. 42 U.S.C. § 1983; Berg v. Cty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). Generally, the First Amendment prohibits public employers from taking adverse action against an employee because of an employee's actual or perceived engagement in constitutionally protected political activity. See Heffernan, 136 S.Ct. at 1419 (“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983.”). To sustain a First Amendment retaliation claim, a plaintiff must establish that “(i) [the plaintiff] engaged in activity protected by the First Amendment;[3] (ii) [the] defendants retaliated in response; and (iii) [the] defendants could not rebut the claim by demonstrating that they would have taken the same action even in the absence of the protected speech.” Ober v. Brown, 105 F. App'x 345, 346-47 (3d Cir. 2004) (citing Baldassare, 250 F.3d at 194-95).

         Relevant here, courts have also developed a three-part test for a plaintiff to establish a prima facie claim of discrimination based on political patronage in violation of the First Amendment: a plaintiff must show that “(i) [the plaintiff] was employed at a public agency in a position that does not require political affiliation; (ii) [the plaintiff] engaged in constitutionally protected conduct; and (iii) this conduct was a substantial or motivating factor in the [public employer's] employment decision.” Galli v. N.J. Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir. 2007). If a plaintiff establishes this prima facie claim, the public employer may “avoid a finding of liability by proving by a preponderance of the evidence that the same employment action would have been taken even in the absence of the protected activity.” Id.

         In the March 2017 Opinion, this Court concluded that Plaintiffs failed to establish that Defendants violated their First Amendment rights because they failed to sufficiently plead a prima facie claim of political patronage. (March 2017 Opinion at 15-16).[4] The Court reasoned that Plaintiffs failed to sufficiently (i) allege the nature of their political non-affiliation as needed to establish that they engaged in constitutionally protected conduct because “Plaintiffs' Complaint lacks any allegations that they were unaffiliated with any of the preferred political candidates, organizations, or associations, or that they were generally apolitical” (id. at 12-13); (ii) ‚Äúplead both knowledge and causation. Plaintiffs have neither specifically alleged that Defendants knew of their political inactivity or non-support of any of the alleged preferred groups, nor alleged facts that allow for an inference of ...


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