Town Officials Ask Judge to Dismiss Federal Lawsuit

The attorney who is defending three Lawrence Township officials and the municipality itself in a on Friday (May 25) filed a formal motion, with supporting documentation, asking a federal judge to dismiss the lawsuit for a variety of legal reasons.

A deadline of June 18 was set for U.S. District Court Judge Freda S. Wolfson in Trenton to decide whether to dismiss the lawsuit or allow it to move forward.

“It is clear that after stripping away the unadorned legal conclusions found in the complaint, plaintiffs’ allegations fail to set forth plausible claims for relief,” defense attorney Peter F. Berk of the Newark law firm of Gonova Burns Giantomasi & Webster states in the “Motion to Dismiss” brief he submitted Friday.

Berk is representing the Township of Lawrence, Township Manager Richard Krawczun, Police Chief Daniel Posluszny and Deputy Police Chief Joseph Prettyman, who were named as defendants in the lawsuit filed April 18 by township police Sgt. Joseph Caloiaro and Officers Marc A. Caponi, Andrew F. Lee, Andres Mejia, Hector Nieves, Steven Simon, and Scott W. Stein.

Friday was the deadline set by the court for the defendants to file their formal response to the officers' lawsuit.

The seven officers – who currently hold or, in the past, have held leadership positions in Lawrence Township's police unions – claim that their First Amendment-protected civil rights have been violated and that they have been punished for taking part in union activities.

, the lawsuit alleges the “defendants have consistently and systematically retaliated against the plaintiffs for the exercise of their First Amendment rights, specifically, their union involvement and still more specifically, participation in their union activities. Defendants have acted individually and in concert in their official capacity to quell the exercise of plaintiffs' First Amendment rights by retaliating against plaintiffs for the exercise of said rights.”

The officers’ lawsuit seeks “compensatory damages, including damages for emotional distress, loss of reputation, personal injury, back pay, front pay, consequential damages, punitive damages, pre- and post-judgment interest, reasonable attorneys' fees and the cost of suit and any other damages the court deems equitable and just.”

Claiming that the seven officers, in part, did not provided sufficient evidence for their lawsuit to go forward, the motion filed on Friday by Berk asks Judge Wolfson to dismiss the lawsuit “with prejudice.” Such a condition would prevent the officers from filing another lawsuit in the future based on the same claims.

“Plaintiffs fail to even allege which of their First Amendment rights were supposedly violated,” Berk states in the motion. “The courts have recognized that the First Amendment may protect an individual’s right to free speech, right to freely associate and right to petition. Absent any specific claims or notice, and as the complaint only references plaintiffs’ membership in the two unions and not any specific conduct, defendants shall treat the complaint as one alleging a violation of plaintiffs’ freedom of association. This claim must fail because no plaintiff even pleads that he participated in a protected union activity, nevertheless was retaliated for such participation.”

A phone message left by Lawrenceville Patch for Berk at his office yesterday (Tuesday) was not returned.

A similar call made to Katherine Hartman, the Moorestown-based attorney representing the seven police officers, also went unreturned yesterday.

(A copy of the defendant’s Motion to Dismiss can be found in the media box above, along with a copy of the plaintiffs’ lawsuit.)

Individual allegations made by the seven police officers in their lawsuit are not specifically denied or admitted by the defendants in the motion filed Friday by Berk. Instead, the motion cites more than 50 prior legal cases, federal rules and New Jersey statutes as part of its argument that the lawsuit should be dismissed.       

“Because defendants are filing a Motion to Dismiss for failure to state a claim upon which relief can be granted, they shall rely on the factual allegations contained in plaintiffs’ complaint as required by Federal Rule of Civil Procedure 12(b)(6). Defendants’ reliance on these factual allegations, however, is solely for the purposes of this motion, and is neither intended, nor should be construed as, an admission of fact by defendants for any other purpose in this litigation,” Berk’s motion reads.

The defendants’ Motion to Dismiss is built around five legal arguments.

The first of those arguments is that the seven officers’ lawsuit “should be dismissed because plaintiffs have failed to state a claim upon which relief may be granted.” The motion reads:

Applying the Iqbal-Twombley standard to the matter at hand, it is clear that after stripping away the unadorned legal conclusions found in the complaint, plaintiffs’ allegations fail to set forth plausible claims for relief. In Counts One and Two, plaintiffs fail to state sufficient facts upon which their freedom of association claims could stand, neglecting to plead the alleged protected activity and failing to demonstrate the existence of any “causal connection” between the alleged protected activity and any adverse employment action… Count Three is insufficient because there is no separate cause of action for punitive damages under Federal or State law… As a result, this action should be dismissed, in its entirety, as a matter of law.

The defendants’ second argument in favor of dismissal is that the officers’ “failed to allege facts sufficient to sustain a cause of action” under either federal or New Jersey state civil rights laws. The motion reads, in part:

Plaintiffs name the township as a defendant without providing any factual basis for doing so. The only explanation for plaintiffs’ glaring failure to provide any basis for the township’s liability is that plaintiffs erroneously seek to hold the township liable for one of its employees’ alleged improprieties on a respondent superior theory. Such theory of liability is impermissible under Section 1983. Plaintiffs have not provided any factual basis for imputing Monell liability against the township, as there is not allegation of a department policy or custom that results in an alleged constitutional harm. While plaintiffs allege a handful of instances of improper investigations and disciplinary actions allegedly based on their union membership, this does not rise to the level of a custom that is so permanent and well settled “as to virtually constitute law.”

Plaintiffs’ allegations against the individually named defendants are conclusory and insufficient as a matter of law. Plaintiffs provide no specific facts as to how defendants allegedly violated their constitutional rights, expressly directed the deprivation of their constitutional rights, or created policies wherein subordinates had no discretion in applying them in a fashion other than the one which actually produced the alleged deprivation. The complaint lacks any specific factual allegation sufficient to sustain a Section 1983 cause of action against the individual defendants.

The defendants’ third argument is that the lawsuit should be dismissed, in part, because the “plaintiffs have failed to allege any union activity that would give rise to protection under the First Amendment” and that “plaintiffs have not alleged that defendants committed any acts which rise to the level of an adverse employment action.” The motion reads, in part:

Plaintiffs failed to even allege any union activity in which they participated and for which they were allegedly retaliated… As there is no allegation that any retaliatory act was taken because of plaintiffs’ participation in union activities, the complaint should be dismissed as a matter of law. Merely being a member of a union does not mean that every action a person takes is protected by his right to free association.

It is noted that plaintiff Lee alleges he was retaliated against for sending an email, supposedly in his capacity as FOP president, in which he suggested that the position of deputy chief be eliminated. Similarly, plaintiff Caloiaro allegedly sent an email about a newspaper article that was already published, though it is unclear to whom the email was sent, how the email could possibly be a protected activity, or the relevance it has to this lawsuit. These allegations, however, are not sufficient for plaintiffs Lee and Caloiaro’s claims to survive this Motion to Dismiss, because sending the emails is not a protected activity. The emails were not a part of negotiations, union elections, or any other protected conduct. Further, the remaining plaintiffs cannot rely on the statements of plaintiffs Lee and Caloiaro to form the basis of their First Amendment claim. As such, all claims should be dismissed for failure to satisfy the first requirement of a First Amendment claim.

Furthermore, if any of the few incidents of alleged retaliation were deemed “not trivial,” it is clear that they are, in actuality, reasonable responses to improper conduct by plaintiffs. First Amendment claims do not create “immunity” to valid and warranted discipline.

The defendants’ fourth argument is that the federal court  “should abstain from considering all counts in the complaint as to plaintiffs Lee, Mejia and Nieves, because plaintiffs’ claims are currently before state administrative agencies.” The motion reads, in part:

Court should abstain from considering the applications of Plaintiffs Lee, Mejia and Nieves because the New Jersey Legislature has created a statutory and regulatory scheme to address the specific issues raised in this matter… Indeed, the New Jersey Public Employment Relations Commission is the regulatory body vested with the power and authority to govern labor-management relations in the public employment setting. Presently, the aforementioned plaintiffs have charges pending before PERC addressing the same alleged protected activity that is now before this court.

Plaintiff Lee filed an Unfair Labor Practice charge and a grievance through the FOP, both of which are still unresolved. Plaintiff Mejia has grievances pending, as well as outstanding disciplinary matters, which are connected to the alleged retaliatory actions taken against him. Further, plaintiff Nieves has “numerous outstanding grievances” and is awaiting hearing dates for two disciplinary charges pending against him. As PERC is addressing these three plaintiffs’ claims, the court should abstain from considering the complaint in relation to plaintiffs Lee, Mejia and Nieves.

Based upon these state statutes and State agencies, it is clear that the pending administrative proceedings implicate important state interests. Should the court decline to abstain and permit the parties to litigate the claims and defenses at this time, it will no doubt disrupt the functioning of these state laws and agencies. The court should recognize the important State interests that are implicated and abstain from judicial proceedings.

The defendants’ fifth argument is that Count Three of the seven officers’ lawsuit – seeking punitive damages – “should be dismissed because punitive damages are a remedy for an alleged wrong, not a separate claim to be brought by a plaintiff.”