United States District Court, D. New Jersey
SIRRANO KEITH BALDEO, and STACEY BALDEO, husband and wife, Plaintiffs,
CITY OF PATERSON, COUNCILMAN WILLIAM "BILL" MCKOY, COUNCILWOMAN RUBY N. COTTON, COUNCILWOMAN MARITZA DAVILA, COUNCILMAN MICHAEL "MIKE" JACKSON, COUNCILMAN DOMINGO "ALEX" MENDEZ, COUNCILMAN KENNETH M. MORRIS, JR., COUNCILMAN ANDRE SAYEGH, COUNCILMAN LUIS VELEZ, COUNCILMAN SHAHIN KHALIQUE, COUNCILMAN MOHAMMAED AKHTARUZZAMAN, COUNCILMAN JULIO TAVAREZ, ROMINA M. PASQUAL, ESQ. -CITY ATTORNEY, NELLI POU - BUSINESS ADMINISTRATOR, and JOHN DOES A-Z, Defendants.
MCNULTY UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendants' motion to
dismiss the Complaint. Plaintiff Sirrano Keith Baldeo is the
founder of a newspaper, the New Jersey Pulse, which
focuses on local issues in Paterson, New Jersey. Defendant
City of Paterson is a municipality that legislates through a
city council. The remaining defendants are members of the
city council, the city attorney, and the city business
Baldeo, a vocal critic of the elected council members,
publicly opposed their re-election. As a result, he claims,
various council members retaliated against him and engaged in
conduct that resulted in a deprivation of his First Amendment
rights. He further alleges that some of the incidents were
reasons stated below, the Complaint's tort claims are
dismissed in their entirety, with prejudice, because the
plaintiffs have failed to file a notice of tort claim under
the New Jersey Tort Claims Act. The tort claims dismissed on
these grounds are the third count (breach of fiduciary duty);
fifth count (battery); sixth count (assault); seventh count
(civil conspiracy); and eighth count (aiding and abetting).
fourth count, plaintiffs' claim under 42 U.S.C. §
1985(3), is also dismissed. The Complaint does not
sufficiently plead the existence of a conspiracy amongst the
defendants that was motivated by a racial or class-based
discriminatory animus. This dismissal is without prejudice.
plaintiff Stacey Baldeo's claims under 42 U.S.C. §
1983 and the New Jersey Civil Rights Act ("NJCRA"),
the motion to dismiss is granted, without prejudice. Ms.
Baldeo sues based on the constitutional deprivations
allegedly suffered by her husband, plaintiff Sirrano Baldeo.
The Complaint does not allege that she independently suffered
any constitutional deprivation.
plaintiff Sirrano Baldeo's claims under 42 U.S.C. §
1983 and the NJCRA, the defendants' motion to dismiss is
granted in part and denied in part. The motion to dismiss the
first count (§ 1983) and second count (NJCRA) is granted
insofar as those claims are asserted against defendants
Romina M. Pasqual and Nelli Pou. As to all other defendants
(i.e., the City and its council members), the motion
Sirrano Keith Baldeo is the founder of a newspaper called the
New Jersey Pulse  which focuses on issues of local
concern to the City of Paterson, New Jersey. (Compl.
¶l). Plaintiff Stacy Baldeo is the spouse of Mr. Baldeo.
City of Paterson operates under a Mayor-Council form of
government pursuant to the Optional Municipal Charter Law,
N.J. Stat. Ann. §§ 40:69A-1 to -210, known more
familiarly as the Faulkner Act. (Compl. ¶¶2-3);
see also N.J. Stat. Ann. §
40:69A-32. Plaintiffs have sued a number of elected
council members, including defendants William
"Bill" McKoy, Ruby N. Cotton, Maritza Davita,
Michael Jackson, Domingo "Alex" Mendez, Kenneth M.
Morris, Jr., Andre Sageyh, Luis Velez, Shahin Khalique,
Mohammed Akhtgaruzzaman, and Julio Tavarez. (Compl. ¶3).
have also sued the City of Paterson's attorney, Romina M.
Pascual, Esq., and its business administrator, Nelli Pou.
Factual Allegations and Procedural History
Complaint arises from their encounters with various council
members. On March 15, 2016, Mr. Baldeo attended a
council meeting, and addressed "criminal accusations
made by Council members" against Joey Torres, the
City's former mayor. (Compl. ¶5). Mr. Baldeo accused
the council members of having their own "demons."
Subsequently, on his Facebook page, he published that the
council was corrupt, incompetent, and unworthy of reelection.
(Compl. ¶¶5-6). The Complaint does not identify the
particular defendant council members who attended that
meeting, or the particular ones at whom Mr. Baldeo directed
March 22, 2016, Mr. Baldeo again went to Paterson City Hall.
(Compl. ¶¶7-9). There, he claims, Jackson
"harassed" and blocked him from entering his car.
(Compl. ¶7). Jackson and Mr. Baldeo had another
confrontation in the "public area" of the
"Council chamber." (Compl. ¶8). Jackson had
seen Mr. Baldeo's "documents," including one
that stated that Jackson "took $140, 000 from
taxpayers" and "did not pay $38, 000 in business
taxes." (Id.). Jackson proclaimed that when he
walked past Mr. Baldeo, Baldeo had "tried to hit him
with [his] shoulders," and asked that officers remove
Mr. Baldeo. (Compl. ¶9). As a result, Mr. Baldeo was
"prevented from speaking and attending the
meeting." (Id.). Mr. Baldeo claims that Jackson
made that false accusation because he did not "want Mr.
Baldeo [to speak] about Councilman Jackson at the
April 5, 2016, the Complaint alleges, the council prevented
Mr. Baldeo from speaking at a meeting, although other members
of the public were allowed to do so. (Compl. ¶¶
10-14). Those allowed to speak were supporters of William
McKoy, the council president, and Jackson. (Id.).
Mr. Baldeo, in contrast, had posted on social media that
McKoy should not be re-elected. (Compl. ¶10). Other
defendant council members were present at this meeting,
including Jackson, Cotton, Davita, Mendez, Morris, Sageyh,
Akhtgaruzzaman, and Tavarez. (Compl. ¶15). Mr. Baldeo
alleges that Pascual, the City's attorney, and Pou, the
City's business administrator, failed to prevent the
council "from censoring" him. (Id.).
April 7, 2016, Mr. Baldeo attended another council meeting.
Jackson told Mr. Baldeo to remove his newspaper from City
Hall. When he failed to do so, McKoy "dumped all of the
newspapers" in the restricted council area. (Compl.
the meeting, McKoy advised Mr. Baldeo that he would no longer
be permitted to film the meetings by placing his camera on a
"ledge," although in the past he had been permitted
to do so. (Compl. ¶¶ 19-20). McKoy stated that
there was a policy prohibiting recording from that location.
The City clerk, however, told Mr. Baldeo that there was no
ordinance, resolution, or policy that regulated the use of
cameras in the council chamber. (Compl. ¶20).
a break in the meeting, Mr. Baldeo was again advised that he
needed to remove the camera from the "ledge" and
that police would escort him from the building if he failed
to do so. (Compl. ¶¶21-22). The police officer
removed Mr. Baldeo from the meeting. (Compl. ¶22).
attending the next council meeting, Mr. Baldeo reached out to
the Paterson police chief, the police director, and the
Mayor's office to request police protection at the next
council meeting. (Compl. ¶23). He was denied police
protection, he says, because the police director supported
McKoy "and others" for re-election. (Id.).
after April 12, 2016, Mr. Baldeo was stopped by "a
man" outside of City Hall, who told him that Sayegh,
McKoy, and Jackson "were all waiting to set up Mr.
Baldeo by bumping into him, saying that he hit them, and then
have him arrested, with all of these elected officials being
witnesses for each other." (Compl. ¶24). The
Complaint does not contain any further facts relating to this
of these incidents, and because he did not receive police
protection, Mr. Baldeo did not attend the council meetings in
April and May of 2016. He was thus prevented from doing his
job as a journalist. (Compl. ¶25).
1, 2016, Mr. Baldeo went to City Hall and learned that his
newspapers had been removed from the table where local
newspapers were permitted to be placed for the public.
(Compl. ¶26). He learned from the Clerk that McKoy had
ordered that the newspapers be removed. (Id.). Mr.
Baldeo alleges that on July 12, 2016, the council voted to
ban Mr. Baldeo from "the list of newspapers" that
received information from the council. (Compl. ¶27). As
a result, Mr. Baldeo would not receive advance notice of
meetings or agendas. [Id.). Present at that July 12,
2016 meeting were defendant council members McKoy, Jackson,
Cotton, Davita, Mendez, Morris, Sageyh, Velez, and Khalique.
(Compl. ¶28). Mr. Baldeo asserts that Pascual and Pou
failed to stop the council from censoring him.
one year later, Mr. Baldeo sent a letter to the council and
city clerk, requesting that his newspaper be returned to
"the list." (Compl. ¶29). During the July 1,
2017 council meeting, the council allegedly discussed how to
keep Mr. Baldeo off the list, but "could not come up
with any legal reason." Ultimately, they kept him off
the list because they did not like the newspaper's
content. (Compl. ¶30). Present at that July 1, 2017
meeting were defendant-council members McKoy, Cotton, Davita,
Mendez, Morris, Velez, and Khalique. (Compl. ¶28). Mr.
Baldeo claims that Pascual and Pou failed to stop the council
from censoring him and "encouraged the Council's
illegal retaliatory animus towards Mr. Baldeo."
unspecified time, Mr. Baldeo filed criminal charges against
unspecified members of the council. (Compl. ¶32). On
August 9, 2017, after a hearing on the criminal charges,
McKoy allegedly "slammed his body into Mr. Baldeo, which
caused the already disabled Mr. Baldeo to go through at least
four or five months of physical therapy." (Compl.
Mr. Baldeo alleges that the council hired a private
investigator to follow him and Ms. Baldeo. Ms. Baldeo
"twice caught" the investigator "trying to get
close to her." (Compl. ¶34). Mr. Baldeo claims that
the former police director told him that Sayegh was one of
the individuals "who was involved in going after Ms.
Baldeo." (Compl. ¶35).
April 3, 2018, Mr. and Ms. Baldeo filed an eight-count
Complaint asserting the following causes of action:
First Count: 42 U.S.C. § 1983;
Second Count: New Jersey Civil Rights Act, N.J. Stat. Ann.
Third Count: breach of fiduciary duty;
Fourth Count: 42 U.S.C. § 1985(3) conspiracy;
Fifth Count: battery against McKoy;
Sixth Count: assault against McKoy;
Seventh Count: civil conspiracy; and
Eighth Count: aiding and abetting.
19, 2018, defendants filed a motion to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE
9-2). Plaintiffs oppose the motion. (DE 13).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
232 (3d Cir. 2008) (Rule 8 "requires a 'showing'
rather than a blanket assertion of an entitlement to
relief." (citation omitted)). Thus, the complaint's
factual allegations must be sufficient to raise a plaintiffs
right to relief above a speculative level, so that a claim is
"plausible on its face." Twombly, 550 U.S.
at 570; see also West Run Student Hous. Assocs., LLC v.
Huntington Nat. Bank, 111 F.3d 165, 169 (3d Cir. 2013).
That facial-plausibility standard is met "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). While "[t]he plausibility standard is not akin
to a 'probability requirement'... it asks for more
than a sheer possibility." Id.
12(b)(6) provides for the dismissal of a complaint if it
fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products,
Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d
Cir. 2011). For the purposes of a motion to dismiss, the
facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff.
New Jersey Carpenters & the Trustees Thereof v.
Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302
(3d Cir. 2014).
in this district have dismissed complaints when the contain
improper "group pleading." This type of pleading
fails to satisfy Rule 8 "because it does not place
Defendants on notice of the claims against each of
them." Sheeran v. Blyth Shipholding S.A., 2015
U.S. Dist. LEXIS 168019, at *8 (D.N.J. Dec. 16, 2015) (citing
Ingris v. Borough of Caldwell, 2015 WL 3613499, at
*5 (D.N.J. June 9, 2015) ("(T]o the extent Plaintiff
seeks to lump several defendants together without setting
forth what each particular defendant is alleged to have done,
he has engaged in impermissibly vague group pleading.");
Shaw v. Hous. Auth. of Camden, 2012 WL 3283402, at
*2 (D.N.J. Aug. 10, 2012) (dismissing complaint because it
failed to contain allegations showing how each defendant was
liable and noting that "[e]ven under the most liberal
notice pleading requirements of Rule 8(a), a plaintiff must
differentiate between defendants.")). "Alleging
that 'Defendants' undertook certain illegal acts -
without more - injects an inherently speculative nature into
the pleadings, forcing both the Defendants and the Court to
guess who did what to whom when. Such speculation is anathema
to contemporary pleading standards." Japhet v.
Francis E. Parker Mem'l Home, Inc., 2014 U.S. Dist.
LEXIS 105134, at *7 (D.N.J. July 31, 2014).
deciding a motion to dismiss, a court typically does not
consider matters outside the pleadings. However, a court may
consider documents that are "integral to or explicitly
relied upon in the complaint" or any "undisputedly
authentic document that a defendant attaches as an exhibit to
a motion to dismiss if the plaintiffs claims are based on the
document[.]" In re Rockefeller Ctr. Props., Inc.
Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis
and citations omitted); see In re Asbestos Prods. Liab.
Litig. (No. VI), 822 F.3d 125, 133 n.7 (3d Cir. 2016);
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
on these types of documents does not convert a motion to
dismiss into a motion for summary judgment. "When a
complaint relies on a document . . . the plaintiff obviously
is on notice of the contents the document, and the need for a
chance to refute evidence is greatly diminished,"
Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993).
move to dismiss all of the Complaint's state law tort
claims because the plaintiffs have not Filed a notice of tort
claim pursuant to the New Jersey Tort Claims Act.
Jersey Tort Claims Act ("TCA"), N.J. Stat. Ann.
§ 59:1-1 to 12-3, is the statutory mechanism through
which the New Jersey Legislature effected a limited waiver of
sovereign immunity. "That waiver is not unlimited, but
is bound by the Legislature's declaration of purpose,
see [N.J. Stat. Ann. §] 59:1-2, and enforced
through the application of numerous express limitations
embodied in the statute's provisions." D.D. v.
Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133
(2013) (alteration added). The New Jersey Supreme Court has
stressed that "[f]aithful adherence to the
Legislature's intent requires us to be mindful of this
essential purpose of the statute[.]" Id. at
134. The requirements of the TCA apply when state-law tort
claims are brought in federal court. See Bethea v.
Roizman, No. 11-254 (JBS/JS), 2012 U.S. Dist. LEXIS
89093, at *40 (D.N.J. June 27, 2012) (holding that plaintiffs
"were required to abide by the requirements of state law
when filing [common law torts under state law]" against
public entity and employees).
grants public entities and municipalities immunity from
liability, subject to certain specific exceptions enumerated
in the Act. N.J. Stat. Ann. § 59:2-l(a); Polzo v.
Cnty. of Essex, 209 N.J. 51, 65 (2012). In other words,
a public entity is "'immune from tort liability
unless there is a specific statutory provision' that
makes it answerable for a negligent act or omission."
Id. (quoting Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2002)).
to the TCA, a litigant is required to file a notice of tort
claim within ninety (90) days of the accrual of the alleged
cause of action before he or she can file a complaint against
a municipality. N.J. Stat. Ann. § 59:8-8. This notice
requirement is "a jurisdictional precondition to filing
suit." Ptaszynski v. Uwaneme, 371 N.J.Super.
333, 343 (App. Div. 2004) (quotation and citation omitted);
Pilonero v. Twp. of Old Bridge,236 N.J.Super. 529,
534 (App. Div. 1989) ("[T]rial court lacks jurisdiction
in light of the failure to file a timely notice of
claim."); see also Thomasian v. N.J. Inst. of
Tech., 2009 U.S. Dist. LEXIS 7900, at *2-9 n.3 (D.N.J.
Feb. 3, 2009) (recognizing requirement ...