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Baldeo v. City of Paterson

United States District Court, D. New Jersey

January 18, 2019

SIRRANO KEITH BALDEO, and STACEY BALDEO, husband and wife, Plaintiffs,
v.
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.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         This 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 administrator.

         Mr. 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 tortious.

         For the 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).

         The 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.

         As to 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.

         As to 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 is denied.

         I. Background [1]

         A. Parties

         Plaintiff Sirrano Keith Baldeo is the founder of a newspaper called the New Jersey Pulse [2] 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. [Id., ).

         Defendant 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.[3] 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).

         Plaintiffs have also sued the City of Paterson's attorney, Romina M. Pascual, Esq., and its business administrator, Nelli Pou. (Id.).

         B. Factual Allegations and Procedural History

         Plaintiffs' Complaint arises from their encounters with various council members.[4] 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 his comments.

         On 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 meeting." (Id.).

         On 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.).

         On 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. ¶¶16-18).

         During 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).

         During 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).

         Before 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.).

         Sometime 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 allegation.

         Because 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).

         On July 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. (Id.).

         Almost 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." (Id.).

         At some 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. ¶33).

         Finally, 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).

         On 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. § 10:6-2(c);
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.

         On June 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).

         II. Legal Standard

         Federal 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.

         Rule 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).

         Courts 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).

         When 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).

         Reliance 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).

         III. Discussion

         A. Tort Claims

         Defendants 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.

         The New 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).

         The TCA 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);[5] 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)).

         Pursuant 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 ...


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