United States District Court, D. New Jersey
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.
and Procedural Background.
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).
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
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.
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.
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). Specifically, the Court will evaluate
whether Plaintiffs have cured the deficiencies addressed in
the Court's March 2017 Opinion.
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
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
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.”
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).
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
I: First Amendment Claim.
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; (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).
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.
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). 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)
“plead 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 ...