United States District Court, D. New Jersey
H. RODRIGUEZ U.S.D.J.
matter is before the Court on Motions to Dismiss the Second
Amended Complaint. Oral argument on the motions was heard on
November 8, 2017 and the record of that proceeding is
incorporated here. For the reasons expressed on the record
that date, and those below, the motions to dismiss will be
first Complaint was filed in State court and was replaced by
a federal court Complaint filed on January 24, 2017.
Thereafter, Plaintiff filed a First Amended Complaint [Doc.
No. 8] and Second Amended Complaint [Doc. No. 30]. In lieu of
Answers, all Defendants filed Motions to Dismiss which are
presently before the Court. [Doc. Nos. 44-47, 49]. All
Defendants assert that no federal jurisdiction exists and, if
any part of Plaintiff's Complaint is viable, jurisdiction
is appropriate in State court.
lawsuit arises out of a press conference held by Mayor Randy
Brown (“Brown”) of Evesham Township
(“Evesham”) on or about January 12, 2017. (Second
Am. Compl. ¶ 9.) At that press conference, Brown
allegedly stated “words to the effect that sexual
harassment complaints had been filed against Plaintiff”
and that “Plaintiff's conduct ‘without
question' ‘crossed the line.'” (Second
Am. Compl. ¶¶ 9, 11.) He further alleged that
“the administration was hiding and covering up the
sexual harassment complaints.” (Second Am. Compl.
originally sued Randy Brown and then later named Sandy
Student, Nichole Stone, William McGoey, and Evesham Township.
Student, Stone, and McGoey are members of the Evesham
Township Board of Education. (Second Am. Compl. ¶ 6.)
Plaintiff alleges he was defamed, his privacy was invaded, he
was denied due process, and his liberty interests were
deprived. (See generally Second Am. Compl.)
Specifically, Plaintiff alleges that his offer of employment
with the Gloucester Township Board of Education was withdrawn
due to “Brown's conduct . . . outside the
scope of [his] employment as Mayor.” (Second Am. Compl.
¶ 28-29, emphasis in original.) Plaintiff's Second
Amended Complaint has alleged an alternative theory that
Brown “was acting within the course and scope of his
duties as Mayor.” (Second Am. Compl. ¶¶
motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) must be granted if the court
lacks subject matter jurisdiction to hear a claim. In re
Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012). When a
defendant files a motion under Rule 12(b)(1), the plaintiff
bears the burden of establishing subject matter jurisdiction
for the sake of remaining in federal court. Gould Elec.,
Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
The Court applies this standard to the issue of immunity.
See Young v. United States, 152 F.Supp.3d 337, 344
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) may involve either a facial challenge to subject
matter jurisdiction or a factual challenge to the
jurisdictional allegations. Gould Elec., 220 F.3d at
176. If the defendant's attack is facial-i.e.,
“asserting that the complaint, on its face, does not
allege sufficient grounds to establish subject matter
jurisdiction”-a court must accept all allegations in
the complaint as true. Taliaferro v. Darby Twp. Zoning
Bd., 458 F.3d 181, 188 (3d Cir. 2006). Alternatively, a
defendant may “challenge a federal court's
jurisdiction by factually attacking the plaintiff's
jurisdictional allegations as set forth in the
complaint.” Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A factual
challenge attacks the existence of a court's subject
matter jurisdiction apart from any of the pleadings and, when
considering such a challenge, a presumption of truthfulness
does not attach to a plaintiff's allegations.”
Id.; see also Martinez v. U.S. Post Office,
875 F.Supp. 1067, 1070 (D.N.J. 1995).
Federal Rule of Civil Procedure 12(b)(6) allows a party to
move for dismissal of a claim based on “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A complaint should be dismissed
pursuant to Rule 12(b)(6) if the alleged facts, taken as
true, fail to state a claim. Fed.R.Civ.P. 12(b)(6). When
deciding a motion to dismiss pursuant to Rule 12(b)(6),
ordinarily only the allegations in the complaint, matters of
public record, orders, and exhibits attached to the
complaint, are taken into consideration. See Chester
County Intermediate Unit v. Pa. Blue Shield,
896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the
plaintiff to plead evidence. Bogosian v. Gulf Oil
Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question
before the Court is not whether the plaintiff will ultimately
prevail. Watson v. Abington Twp., 478 F.3d 144, 150
(2007). Instead, the Court simply asks whether the plaintiff
has articulated “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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
(2009) (citing Twombly, 550 U.S. at 556).
“Where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Court need not accept “‘unsupported conclusions
and unwarranted inferences, '” Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation
omitted), however, and “[l]egal conclusions made in the
guise of factual allegations . . . are given no presumption
of truthfulness.” Wyeth v. Ranbaxy Labs.,
Ltd., 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986));
see also Kanter v. Barella, 489 F.3d 170, 177 (3d
Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347,
351 (3d Cir. 2005) (“[A] court need not credit either
‘bald assertions' or ‘legal conclusions'
in a complaint when deciding a motion to dismiss.”)).
Accord Iqbal, 556 U.S. at 678-80 (finding that
pleadings that are no more than conclusions are not entitled
to the assumption of truth). Further, although
“detailed factual allegations” are not necessary,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not
do.” Twombly, 550 U.S. at 555 (internal
citations omitted). See also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
motion to dismiss should be granted unless the
plaintiff's factual allegations are “enough to
raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are
true (even if doubtful in fact).” Twombly, 550
U.S. at 556. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has ...