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noting that "process" does not include false testimony
Summary of this case from Shann v. Atl. Health Sys.Opinion
CIVIL NO. 99-4147 (JBS).
August 7, 2000
Mario A. Iavicoli, Esq., Haddonfield, N.J., Attorney for Plaintiff.
Carol A. Cannerelli, Esq., Montgomery, McCracken, Walker Rhoads, Cherry Hill, N.J., Attorney for Defendants Delaware River Port Authority and Paul Drayton, Peter L. Frattarelli, Esq., Archer Greiner, Haddonfield, N.J., Attorney for Defendant J.P. Marinari.
OPINION
In the instant lawsuit, plaintiff Edwin Mosley, a toll collector for the Delaware River Port Authority ("DRPA"), sues the DRPA, as well as Paul Drayton, the DRPA's Chief Executive Officer, and J.P. Marinari, the DRPA's Chief Operating Officer, for wrongful discharge, malicious prosecution and abuse of process, intentional infliction of emotional distress, civil rights violations, and negligence, in connection with plaintiff's termination on June 12, 1998. On May 16, 1998, the International Union of Operating Engineers Local 716 ("Local 716"), of which Mosley was a member, and other unions held a rally in Independence Mall Park in Philadelphia as a result of labor disputes with the DRPA, and that rally was followed by a march to and across the Benjamin Franklin Bridge, at which point a number of the participants marched onto the bridge itself. Mosley contends that he attended the rally but never made it onto the bridge, although he engaged in a discussion with Marinari off of the bridge indicating plaintiff's intent to join those on the bridge to pray. After disciplinary hearings, Mosley, along with eleven other Local 716 members, were fired. Ultimately, the underlying labor dispute was settled with a new collective bargaining agreement, and the issues surrounding these terminations were submitted by the DRPA and Local 716 to this Court in connection with pending litigation over which this Court had jurisdiction. The Court, acting as an arbitrator, conducted a final and binding "disposition hearing," one result of which was that Mosley was returned to his job with backpay and seniority. Mosley's instant lawsuit followed.
The disposition hearing was conducted within the jurisdiction of this Court in the case of International Union of Operating Engineers, Local 716 v. Delaware River Port Authority , Civil No. 97-6138 (JBS). In this case, as part of an overall agreement which settled aspects of this and other cases, the parties reached agreement and proposed a Consent Order, filed September 22, 1998, which conferred continuing jurisdiction and enabled the final hearing to go forward, including testimony under oath, cross examination, and a judicial determination.
Currently before the Court are three motions: a motion filed by the DRPA and Drayton to dismiss or for summary judgment on all claims; a motion for partial dismissal by Marinari; and a motion by the plaintiff to amend the complaint. For the reasons that follow, this Court will grant both the motion to dismiss and the motion for partial dismissal, will order plaintiff to show cause why Count Five and the 42 U.S.C. § 1983 claim in Count Four should not be dismissed as against Marinari as well, and will deny plaintiff's motion to amend.
I. Background
A. Facts as Stated in this Court's December 22, 1998 Determination
In the spring of 1998, numerous labor issues arose between the DRPA and Local 716, including the absence of a collective bargaining agreement renewal, the layoffs of some Local 716 members, and the hiring of part-time employees to work toll booths and other positions filled by Local 716. (Determination at 14.) Local 716, as well as an umbrella group of related, supportive unions, arranged for a march to take place at the Benjamin Franklin Bridge, between Pennsylvania and New Jersey, on May 16, 1998. (Id. at 15.) They also sought and obtained a permit to hold a public rally at Independence Mall in Philadelphia for that same day. (Id.) As part of the planning for the rally and the march, union officials requested a closure of two lanes on the bridge plus a police escort to protect the marchers, so that the bridge would not have to be shut down to traffic. (Id. at 16.) Defendants Marinari and the DRPA told them that there could be no march on the roadway of the bridge because of the danger of commingling of people and vehicles (even if two lanes were blocked off for the marchers) or the inconvenience of shutting down the bridge at a busy traffic period for an hour, and he suggested that the union marchers instead use the walkway on the bridge. (Id. at 17-18.) Local 716's President was aware that the members were forbidden from walking on the roadway but never instructed the other marchers to march on the walkways instead. (Id. at 27-28.)
"Determination at" refers to pages in the Slip Opinion of this Court's December 22, 1998 Determination following disposition hearings held by this Court as an arbitrator for various grievances. The Determination can also be found on Westlaw: International Union of Operating Engineers, Local 716 v. Delaware River Port Authority , No. 97-6138, 1998 WL 951503 (D.N.J. Dec. 22, 1998).
On May 16th, the rally took place at noon at Independence Mall. (Id. at 31.) The rally was peaceful; speakers expressed support for Local 716 and the striking SEPTA transit workers. (Id.) The march then began, for the purpose of protesting the layoffs of 18 union toll collectors and the hiring of part-timers, as well as the lack of a collective bargaining agreement. (Id. at 32.) The marchers walked towards the roadway, where traffic was flowing. (Id. at 35.) A group of marchers did not go onto the roadway after hearing the shouted instructions by police officers to use the sidewalk, but others walked onto the road. (Id.) The police then stopped the traffic on the bridge in both directions for about 70 minutes, and the marchers then continued, some on the roadway, some on the walkway. (Id. at 37.) When the marchers turned and returned to the Philadelphia side, they were arrested without undue force. (Id. at 39-40.) Many of the 70 or so arrestees were let go prior to booking, and others were charged with obstructing traffic. (Id. at 40.)
The DRPA, after holding pre-disciplinary hearings on June 8, 1998 by the DRPA's Chief Operating Officer (Marinari), terminated the employment of twelve Local 716 members who the DRPA believed had participated in the march on the bridge, allegedly in violation of DRPA's work rules and policy forbidding pedestrians on the roadway, and allegedly causing a work-stoppage in violation of the terms of employment. One of those twelve was Edwin Mosley. Local 716 filed grievances on behalf of the twelve employees, including Mosley. As a part of negotiation and settlement of all of the claims and in the hopes of reaching a new collective bargaining agreement, the parties submitted the grievances for a final and binding "disposition" before this Court. The undersigned conducted five days of a "disposition hearing," following which this Court issued its final, binding "Determination" by agreement of the parties.
In the Determination, this Court was called upon to decide numerous issues. This Court first had to decide what standard governs the terminations. Next, applying the chosen standard, this Court had to determine the facts, such that this Court could decide if the DRPA could meet its burden of proving that the grievants participated in a "strike or work stoppage." Third, the Court had to address Local 716's argument that even if the marchers had been on the bridge, such marching was expressive conduct protected by the First Amendment. Finally, this Court had to determine whether, if the conduct was not protected by the First Amendment and did warrant discipline, the Court had the power to modify the discipline imposed.
After choosing the applicable standards, this Court determined the facts. In doing so, this Court discussed eleven of the twelve grievants together, for those eleven admitted that they were on the bridge. Edwin Mosley, however, alleged in that case (and alleges here today, see Complaint at Count I, ¶ 9) that he never marched on to the bridge, and thus this Court discussed facts relevant to his conduct separately. As this Court described, Mr. Mosley was both a toll collector with the DRPA and an ordained minister. (Determination at 45.) He testified that, as chaplain of Local 716, he was in attendance to "pray for unity," but he arrived late because he could not find a place to park. (Id.) Mosley and Marinari agreed that the two had a conversation in the early stages of the march near the western end of the bridge, wherein Marinari told Mosley that "`Today's not a good day for anyone to be on the bridge,' and `Anyone on the bridge would be fired,' and Mosley told him he was just there to pray, and he left the area after seeing Mr. Marinari." (Id. at 45-46.) The men disagreed, however, on where this encounter took place; according to Marinari, the discussion took place well onto the deck of the bridge as Mosley was moving quickly to catch up with the marchers, and according to Mosley, the encounter took place off of the bridge, on the Fifth Street approach to the bridge. (Id. at 45.)
This Court discussed the lack of substantial evidence supporting either man's recollection. Mosley's recollection was supported by the fact that a newspaper article quoted Marinari as telling the reporter that he spoke with Mosley on the approach to the bridge. (Id.) However, the evidence which Mosley supplied as a supposed "alibi" as to why he could not have been on the bridge, this Court determined, was not helpful one way or the other (id. at 46-47), and it was logical that Mosley would have sought to join the marchers if he was really there to "pray for unity." (Id. at 47.) Neither was the DRPA's argument strong, this Court found, as other witnesses for the DRPA could not recall seeing Mosley on the bridge. (Id.)
On balance, this Court found that the DRPA had not met its burden of proving that Mosley actually entered the bridge. (Id. at 48.) Therefore, this Court ordered that Mosley be returned to his job with backpay and with his seniority restored.
This Court did not find that Mosley was not on the bridge. Had this Court believed that the evidence showed that Mosley was not on the bridge, the Court would have said so, instead of explaining that the facts as to Mosley were in equipoise. Where the facts are in equipoise, the party having the burden of proof, namely the DRPA, does not meet its burden.
The Court then went on to discuss the issues that remained as to the other eleven grievants. The Court found that their conduct did not amount to a "work stoppage," but that the eleven employees did violate other rules. (Id. at 48-60.) The Court also decided that disciplining the eleven grievants would not violate their First Amendment rights. This was so for two reasons: first, the DRPA did not (and does not) "seek to impose discipline for anything said or done" in Independence Park, the site of the rally; and second, no one has a First Amendment right to march on the roadway of the bridge, in a manner significantly interfering with the very purpose of this public space that is not a public forum — the safe flow of traffic. (Id. at 60-75.)
Finally, this Court modified the discipline imposed on the remaining eleven grievants, vacating their discharges and instead ordering that they be suspended for one month without pay (from June 13, 1998 to July 12, 1998), and that their employment, backpay, and seniority be restored, retroactively, as of July 13, 1998. (Id. at 81.)
B. Facts as Alleged in the Complaint
In his Complaint, filed in the New Jersey Superior Court, Law Division, Camden County, on July 7, 1999, and removed to this Court by defendant Marinari on September 1, 1999, plaintiff alleges five causes of action. Mosley first sets forth the factual allegations supporting his claims, namely that:
1) as a member of Local 716 and as a religious person, he attended the rally to pray for unity,
2) he did not march onto the bridge and Marinari knew it,
3) in his discussion with Marinari off the bridge, plaintiff told Marinari that he was there to pray for unity,
4) Marinari "provided false information to the DRPA indicating that Mr. Mosley did in fact walk onto the Benjamin Franklin Bridge deck for approximately 100 yards" and "[t]he false information provided to the DRPA by Mr. Marinari was for the purpose of having Mr. Mosley fired," which occurred on June 12th (Complaint, Count One, ¶¶ 13-15), and
5) "Mr. Drayton knew of the false and manufactured information and with such knowledge participated in having Mr. Mosley fired" (Id. at Count One, ¶ 16.)
Based on these factual allegations, plaintiff alleges five causes of action. Count One, wrongful discharge, as stated in the complaint, alleges that plaintiff was fired in violation of public policy for attending the rally, in specific violation of his First Amendment rights and rights to be a union member. Count Two asserts claims for malicious prosecution and abuse of process, based on facts alleged in the First Count and based on Mosley's allegation that Marinari provided "false testimony under oath" during the Disposition Hearings before this Court "in order to cause Mr. Mosley to remain terminated," but that Mr. Mosley nevertheless prevailed because this Court reinstated Mr. Mosley to his DRPA position. In Count Three, plaintiff alleged a claim for Intentional Infliction of Emotional Distress. Count Four of the Complaint alleges violations of 42 U.S.C. § 1981, 1982, and 1983, for abridging his due process and equal protection rights. Finally, in Count Five of the Complaint, the plaintiff alleges that the defendants' actions and omissions constitute careless and negligence.
As plaintiff explains Count One in his brief opposing the motions to dismiss, Count One alleges that plaintiff was "wrongfully discharged for, (a) for exercising his rights of assembly in attending the rally ; (b) for exercising his right of free speech in attending the rally to assert his support and union views; (c) for exercising his right of religious freedom in attending the rally to pray for unity and harmony between [Local 716] and the DRPA; and (d) for exercising his right as a union member in that he was a member of the IUOE and was there at the rally as such a member." (Pl.'s Br. at 6-7.)
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 both because the plaintiff has pled violations of federal law and because resolution of wrongful discharge claims in this case will involve interpretation of employment provisions of the DRPA Compact, a congressionally-approved agreement between New Jersey and Pennsylvania establishing the bi-state agency.
The motions to dismiss, as well as the motion to amend, are now before this Court. The Court conducted oral argument on these motions on March 21, 2000, at which time the parties elaborated upon their positions. The Court also accepted a supplemental letter brief filed by the DRPA and Drayton on May 5, 2000, discussing the recent New Jersey Appellate Division decision, Ruggiero v. DRPA, No. A-02690-98T3 (N.J.Super.Ct. App. Div. May 2, 2000), which is directly on point to several issues relevant to these motions. The Court is now prepared to issue its decision on the motions.
II. Discussion
A. Standard of Review on a Motion to Dismiss, Res Judicata, and Collateral Estoppel
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A court may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The question before the court is not whether the plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50 n. 3 (1984) (quoting Conley, 355 U.S. at 47).
A complaint also incorporates, however, any documents which are attached to it or upon which it relies, even if the plaintiff has not chosen those documents. See, e.g., In re Tutu Wells Contamination Litigation, 846 F. Supp. 1243, 1273 (D.V.I. 1993). Here, plaintiff did not attach this Court's December 22, 1998 Determination to the Complaint, but the Complaint relies upon that Determination, referencing it numerous times for various rulings made by this Court. Therefore, this Court may consider that Determination incorporated by reference without converting the motions to dismiss to ones for summary judgment.
Additionally, this Court can consider matters of which it can take judicial notice, such as the Determination, in considering the motion to dismiss. Township of South Fayette v. Allegheny County Housing , 27 F. Supp.2d 582, 594 (W.D.Pa. 1998) (in considering motion to dismiss, Court may consider "matters of which they may take judicial notice," including "publicly available records and transcripts from judicial proceedings `in related or underlying cases which have a direct relation to the matters at issue'"), aff'd , 185 F.3d 863 (3d Cir. 1999).
Facts found in the Determination may collaterally estop the parties from arguing that the facts are otherwise in this case. Collateral estoppel, or issue preclusion, bars "relitigation of a particular fact or legal issue that was litigated in the earlier action." Seborowski v. Pittsburgh Press Co., 188 F.3d 163, 169 (3d Cir. 1999) (citing Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979)). It applies when the factual or legal issue in the second case is identical to that in the first case, there is a final judgment on the merits, and "the party against whom the doctrine is asserted [was] a party or in privity with a party to the prior adjudication and [had] had a full and fair opportunity to litigate the issue in question in the prior action." Seborowski, 188 F.3d at 169 (citing Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 548 (3d Cir. 1996)).
The doctrine of res judicata does not apply in this case, contrary to the DRPA's argument. The Court looks to the standards of federal res judicata law because the earlier decision which the DRPA argues bars the instant suit was issued in federal court. See Paramount Aviation Corporation v. Augusta , 178 F.3d 132, 135-36 (3d Cir. 1997). Under federal law, res judicata prohibits a party from reopening and relitigating issues that were or could have been decided in a previous case involving the same parties, or those in privity with them, arising out of the same transaction. There are three elements to claim preclusion: "(1) a final judgment on the merits in a prior suit involving (2) the same claim and (3) the same parties or their privies." EEOC v. United States Steel Corp . , 921 F.2d 489, 493 (3d Cir. 1990). See also Federated Dep't Stores v. Moitie , 452 U.S. 394, 398 (1981). Res judicata precludes claims that were determined in the earlier action as well as ones that could have been determined. Angel v. Bullington , 330 U.S. 183, 192-93 (1947). Several elements necessary to claim preclusion have been met here: there was a final judgment on the merits (the final, binding, non-appealable arbitration Determination), the claim is the same (both the disposition hearings and this lawsuit concern the legal ramifications of firing Mosley for allegedly marching on the Benjamin Franklin Bridge on May 16, 1998), and the parties of this lawsuit are in privity with the parties involved in the disposition hearings (the DRPA is a party to both, Drayton and Marinari are in privity with the DRPA, and Mosley is in privity with Local 716, a party to the previous dispute). However, while Local 716, which represented Mosley's interests in the disposition hearings before this Court, was empowered to bring wrongful discharge grievances (seeking reinstatement, backpay, and restoration of seniority) against the DRPA, it could not have brought claims for damages arising from wrongful discharge, malicious prosecution, or intentional infliction of emotional distress on Mosley's behalf. Therefore, res judicata could not bar the instant action.
In this case, this Court's Determination was a final, binding judgment, by the parties' agreement, and it was not appealed. Moreover, all parties to this litigation are either identical to, or were in privity with, the parties to the previous action. The DRPA was a party. The DRPA represented both Drayton's and Marinari's interests. Local 716 was Mosley's legal representative for the previous action, and his claims were individually heard and adjudicated during the disposition hearings. There was a full and fair opportunity for all parties to the instant dispute to litigate the facts surrounding plaintiff's discharge during the course of the five-day hearing. Therefore, to the extent that any particular issues or facts were decided and disposed of in the Determination, the Determination collaterally estops the parties from arguing that the facts are otherwise.
Additionally, by asserting a claim for malicious prosecution arising out of the earlier action, Mosley implicitly admits that he was a party to that proceeding.
B. Determining Which State's Law Applies
A bi-state entity like the DRPA may be held liable for a violation of a state law only if the laws of the two states which created the entity are parallel and both states have agreed that the entity should be so bound. N.J.S.A. 32:3-1 to 32:3-4 (New Jersey authorization to create DRPA); 36 Pa. Stat. Ann. §§ 3501-3505 (Pennsylvania authorization to create DRPA). The New Jersey Supreme Court has clarified the circumstances under which the DRPA, as a lawfully created bi-state agency, may be sued. The court has provided that neither state may unilaterally impose on it state law unless "[1] the agency's compact expressly provides for unilateral action, [2] both states have adopted complementary or parallel legislation, or [3] the agency has impliedly consented to the exercise of single state jurisdiction." International Union of Operating Engineers, Local 68, AFL-CIO v. D.R.B.A.("Local 68"), 147 N.J. 433, 446, cert. denied, 522 U.S. 861 (1997). It is important to note, however, that the New Jersey Superior Court has elaborated upon the second prong of theLocal 68 approach, and has provided that, in addition to claims based on similar legislation, a New Jersey plaintiff also may pursue common law claims against the DRPA if he or she establishes that the applicable common law of New Jersey "is substantially similar in nature" to that of Pennsylvania. Ballinger v. D.R.P.A., 311 N.J. Super. 317, 332 (1998); See also Moore v. D.R.P.A., 80 F. Supp.2d 264, 268 (D.N.J. 1999) (JBS). See also Ruggiero v. Delaware River Port Authority, Paul Drayton, et. al., No. A-02690-98T3 (N.J.Super.Ct. App. Div. May 2, 2000).
Thus, if the two states' laws on a particular issue conflict, the DRPA may not be subject to either's state's law on that issue. Likewise, if two state's laws are identical, except that one state adds an additional element which the plaintiff must prove in order to hold the DRPA liable under that claim, the law of the state with the additional element would apply, for if the law of the tougher state is satisfied, the law of the state without the additionally element would obviously have been satisfied as well.
C. Counts One and Five: Wrongful Discharge and Negligence
In Count One, plaintiff alleges that he was wrongfully discharged in violation of public policy. In Count Five, plaintiff alleges that, at the very least, he was negligently discharged. Neither Count survives a motion to dismiss, however, because the laws of New Jersey and Pennsylvania on wrongful discharge regarding employees subject to a collective bargaining agreement ("CBA") conflict, and thus the DRPA cannot be held liable to an individual employee for wrongful discharge; it can only be held liable for remedies gained for the individual by the union in the grievance procedure established by the CBA.
Plaintiff brings his claims for wrongful and negligent discharge, arguing that New Jersey and Pennsylvania have the same exact common law right of wrongful discharge in violation of public policy, as set forth in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980) and Cisco v. UPS, Inc., 328 Pa. Super. 300 (1984), and sets forth that there is no question that this law applies to the DRPA. Plaintiff's argument, has no force in light of the Appellate Division's recent decision in Ruggiero v. Delaware River Port Authority, No. A-2690-98T3 (N.J.Super.Ct. App. Div. May 2, 2000).
In Ruggiero, the Appellate Division held that Mr. Ruggiero, an employee of the DRPA, could not assert a claim against the DRPA for retaliatory discharge in violation of public policy for protesting unsafe working conditions and for engaging in union activities. Mr. Ruggiero had been fired from his employment as a toll collector after an incident in which he and others shut down their toll booths for approximately nine minutes in order to address their concerns about asbestos in the tunnel which the toll collectors had to use in order to reach their toll booths. Id., Slip Op. at 3. Ruggiero filed a five count complaint against the DRPA in 1995 alleging that: 1) the DRPA is responsible for wrongful discharge in violation of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq.; 2) individual DRPA employees violated CEPA; 3) he was wrongfully discharged for his union activities; 4) he was wrongfully discharged in violation of public policy; and 5) DRPA violated its CBA with Local 716 (of which Mr. Ruggiero was a member). Id.
Mr. Ruggiero was represented by the same counsel who represents Mr. Mosley here.
In Ballinger v. Delaware River Port Authority, 311 N.J. Super. 317, 319 (App.Div. 1998), the Appellate Division upheld dismissal of the CEPA claims because Pennsylvania lacked complementary or parallel legislation to CEPA; the Appellate Division also reversed the trial court's dismissal of plaintiff's common law claims against the DRPA based on wrongful discharge, noting that before such claims were dismissed, it would be necessary to painstakingly compare New Jersey and Pennsylvania law. The matter was remanded to the trial court.
The trial court also heard a second suit which Ruggiero brought while the appeal on the first lawsuit was pending. Ruggiero brought an action against the DRPA, Drayton, and other management employees, arguing that various defendants had made false statements against him and wrongfully discharged him for protesting unsafe working conditions, in retaliation for reporting a DRPA employee to authorities, and because of his union activities or affiliations. Ruggiero, No. A-2690-98T3, Slip Op. at 3-4. On remand, the trial court consolidated the two actions, heard argument on Ruggiero's common law claims, and dismissed the complaints in both matters. Id. at 4. The trial court found that the common law of New Jersey and Pennsylvania conflicted: "New Jersey law gave employees covered by a collective bargaining agreement a cause of action for wrongful discharge in violation of a public policy, even when their agreement nominally provided an exclusive remedy for all claims arising out of their employment, whereas Pennsylvania allowed the cause of action only for at-will employees." Id. The lack of substantial similarity between the two states' common laws, the trial court found, rendered the DRPA (and its employees) immune to such claims. Id.
On appeal, the Appellate Division affirmed, rejecting Ruggiero's contention that the common law of Pennsylvania and New Jersey both provide a cause of action for wrongful discharge in violation of public policy for employees covered by a collective bargaining agreement. Id. at 4-5. The Court engaged in a detailed comparison of the two states common laws. Id. at 5-10. In New Jersey, the Appellate Division explained, employees subject to a collective bargaining agreement may still bring wrongful discharge claims, even if the CBA provided an exclusive non-judicial remedy for wrongful discharge. Ruggiero, No. A-2690-98T3, Slip Op. at 7 (citing Lepore v. National Tool Mfg. Co., 224 N.J. Super. 463, 468-74 (App.Div. 1998) (employees covered by a collective bargaining agreement can also bring common law wrongful discharge claim, even if CBA says nonjudicial remedy is exclusive),aff'd, 115 N.J. 226, cert. denied, 493 U.S. 954 (1989); Pierce, 84 N.J. at 72-73 (at-will employees have a common law cause of action for wrongful discharge in violation of public policy)). Pennsylvania, too, provides a common law tort for wrongful discharge in violation of public policy, the Appellate Division explained, Ruggiero, No. A-2690-98T3, Slip Op. at 7 (citing Geary v. United States Steel Corp., 319 A.2d 174, 180 (Pa. 1974); Cisco v. United Parcel Servs., Inc., 476 A.2d 1340, 1343-44 (Pa.Super.Ct. 1984)), but "Pennsylvania has not extended the common law cause of action for wrongful discharge to employees covered by a collective-bargaining agreement, or indicated any inclination to do so," because Pennsylvania draws a distinction between at-will employees and employees governed by a collective bargaining agreement. Ruggiero, No. A-2690-98T3, Slip Op. at 9-10 (explaining that no Pennsylvania court has questioned Phillips v. Babcock Wilcox, 503 A.2d 36 (Pa.Super.Ct. 1986), appeal denied, 521 A.2d 933 (Pa. 1987), in which the court held that a tort claim of wrongful discharge is generally unavailable to employees protected by a collective bargaining agreement).
Therefore, the Appellate Division held that the DRPA could not be held liable for wrongful discharge (and Ruggiero's complaints had to be dismissed) because of the conflict between Pennsylvania and New Jersey common law. Ruggiero, No. A-2690-98T3, Slip Op. at 10. The Appellate Division further noted that the immunity extended to DRPA officers acting in their official capacities; despite the fact that Ruggiero made allegations that individuals had made false statements, he had not alleged that the individual defendants' conduct exceeded the scope of their authority, and thus it was appropriate to dismiss claims against the individuals as well. Id. at 11.
The Appellate Division's reasoning is persuasive and instructive here. Mr. Mosley's cause of action for wrongful discharge in violation of public policy (whether based in statute, the Constitution, or New Jersey common law) clearly cannot stand against the DRPA because New Jersey and Pennsylvania common law on wrongful discharge conflict. The individual defendants, Drayton and Marinari, who are not alleged to have acted outside of the scope of their employment, are also immune from suit.
Likewise, plaintiff's cause of action for negligence must be dismissed. Plaintiff claims that, in the alternative, the DRPA and Drayton acted carelessly and negligently in discharging him, and that the DRPA is responsible for the negligent actions of its agents; even if a jury found that Marinari and Drayton did not act intentionally, plaintiff contends, it could find that they acted negligently, and are therefore responsible for personal injuries, bankruptcy, and a divorce which plaintiff allegedly suffered as a result of his termination. Again, there is no allegation in the Complaint that these individuals were acting in their individual capacity, but rather the Complaint discusses actions taken within their official duties; the Determination, incorporated by reference in the Complaint, makes that even more clear: Marinari conducted pre-disciplinary hearings, as his job required, and that hearing resulted in Drayton sending a letter terminating Mosley's job. The question, then, is whether there could be an action against the DRPA (and by extension, Drayton and Marinari in their official capacities) for negligent wrongful termination.
There cannot. Even if New Jersey law allowed a claim for mere negligent wrongful discharge (as opposed to wrongful discharge in violation of some specific public policy), Pennsylvania's common law clearly holds that as to wrongful discharge claims, the collective bargaining agreement controls. As a result of the conflict between New Jersey and Pennsylvania common law described in Ruggiero, DRPA employees subject to a collective bargaining agreement cannot pursue wrongful discharge claims against the DRPA, outside of the nonjudicial procedures set forth in the CBA with Local 716, even where public policy violations have occurred. It would certainly be anomalous to allow those employees to state claims for damages arising from merely negligently wrongful discharge.
Therefore, this Court will grant the motion by the DRPA and Drayton insofar as it seeks dismissal of Counts One and Five of the Complaint. The Court will also grant defendant Marinari's motion to dismiss Count One. Marinari has not sought dismissal of Count Five, but the Court sees no reason why Marinari should be treated any differently than Drayton; both are alleged to have acted only in their official capacity. This Court will therefore order plaintiff to show cause, within fourteen days of today's date, why Count Five should not be dismissed as to Marinari as well.
There is an additional reason why Counts One and Five cannot stand. As plaintiff has alleged those Counts in the Complaint and has elaborated upon them in his brief opposing the motions, see supra , plaintiff claims that he was not marching on the bridge, that he was at the rally in the park, and that he was fired as a result of his union participation, free speech, assembly, and free exercise of religion at the rally. Plaintiff is, however, collaterally estopped from making such an argument. In the Determination, this Court found that no one was fired as a result of their participation in the rally, but rather that terminations had only to do with the march on the bridge. (Determination at 61.) Because the Determination is incorporated by reference into the Complaint (and may therefore be considered without converting to summary judgment), and because the Determination specifically decided the fact of whether any of the employees were fired as a result of activities at the rally, the Court's findings in that regard act as a bar to the allegations plaintiff makes in the Complaint as to why he was discharged. Count One and, by extension, Count Five (which is based on the facts alleged in Count One, under a negligence theory instead of intentionality) would therefore be dismissed as a result of collateral estoppel as well. Plaintiff should also show cause why Count Five should not be dismissed as against Marinari for this reasoning as well.
D. Count Two: Malicious Prosecution and Abuse of Process
Plaintiff next seeks to hold the defendants liable for malicious prosecution and abuse of process. The law of abuse of process is the same in both states, and therefore the DRPA is bound by it. As both parties agree, New Jersey law of malicious prosecution applies as well, for while the two states' laws of malicious prosecution differ, New Jersey merely adds an additional element which the plaintiff must prove before a defendant may be held liable. The conflict between the two state's laws is resolved so long as the plaintiff meets its burden of proving all four of New Jersey's elements; if New Jersey's four elements are satisfied, so are Pennsylvania's three elements.
1. Abuse of Process
In order to state a claim for abuse of process, a plaintiff must show "1) an ulterior motive and 2) some further act after an issuance off process representing the perversion of the legitimate use of process." SBK Catalogue Partnership v. Orion Pictures, 723 F. Supp. 1053, 1067 (D.N.J. 1989). The touchstone of this tort is that, subsequent to the issuance of process, a party has perverted that process. Galbraith v. Lenape Regional High School Dist., 964 F. Supp. 889, 897 (D.N.J. 1997) (citing Tedards v. Auty, 232 N.J. Super. 541, 549 (App.Div. 1989)). It is the fact that the alleged wrongdoing occurs after a suit has been initiated that differentiates it from a malicious prosecution claim. SBK Catalogue, 723 F. Supp. at 1068. "Process is not abused unless `after its issuance the defendant reveals an ulterior purpose he had in securing it by committing `further acts' whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff.'" Ruberton v. Gabage, 280 N.J. Super. 125, 130 (App.Div. 1995) (quoting Tedards v. Auty, 232 N.J. Super. 541, 550 (App.Div. 1989)). "In the absence of some `coercive or illegitimate use of the judicial process there can be no claim for its abuse.'" Ruberton, 232 N.J. Super. at 130-31 (quoting Penwag Property Co. v. Landau, 148 N.J. Super. 493, 499 (App.Div. 1977), aff'd, 76 N.J. 595 (1978)).
The only conduct alleged to have occurred here after process began is Marinari's alleged perjury during the disposition hearings in this Court. In the first place, the Court notes that it never found in the Determination that Marinari was lying. Secondly, however, even if Marinari was lying, his alleged perjury during the disposition hearings does not constitute an abuse of process under New Jersey law. As the Appellate Division explained it in Ruberton, the "process" in abuse of process" "refers to the abuse of procedural methods used by a person to `acquire or exercise its jurisdiction over a person or over specific property,'" 280 N.J. Super. at 131 (quoting Black's Law Dictionary 1084 (5th ed. 1979)), such as a "`summons, mandate, or writ used by a court to compel the appearance of the defendant in a legal action or compliance with its orders[.]'" 280 N.J. Super. at 131 (quoting Webster's Ninth new Collegiate Dictionary 937 (1986)). Process, for the purposes of "abuse of process," is narrower than the general use of the term, which generally means "`the whole course of proceedings in a legal action.'" Id. For the purposes of an abuse of process claim, "process" does not include false testimony.
Moreover, abuse of process claims are generally reserved for cases in which a person uses the process to coerce the plaintiff into doing something or to extort something from the plaintiff; in short, for a collateral purpose that is not properly obtainable and is totally extraneous to the legitimate use of the process. The tort of abuse of process does not arise where a person simply makes comments that may have themselves been defamatory or unethical within a process legitimately conceived in the hopes of succeeding in obtaining the very thing for which the person brought the process in the first place. In Ruberton, for example, defendant's counsel appeared at a settlement conference by order of the judge and then allegedly threatened to prosecute plaintiff.Ruberton, 280 N.J. Super. 125. The Appellate Division found that even if defendant's attorney's "conduct or statements during the conference [were . . .] otherwise tortious or violated ethical standards, [that] does not mean that he misused `process' for a corrupt purpose"). See id. at 132.
Likewise here, even if Marinari did lie, he committed perjury only in the more general "course of proceedings in a legal action," rather than with respect to some "process" in the more narrow sense, and he did so in the hopes of succeeding in defeating Mosley's grievancethe very point of the DRPA stance in the disposition hearing in the first place. The Complaint does not even allege that Marinari committed perjury in hopes of coercing the plaintiff to take or not take some other unrelated action. Therefore, plaintiff's abuse of process claims against the DRPA, Drayton, and Marinari will be dismissed.
2. Malicious Prosecution
In order to state a claim for malicious prosecution, also known as malicious use of process, the plaintiff must allege that (1) the action was filed before a judicial or other adjudicatory body without probable cause, (2) with malice, (3) the proceeding below terminated in favor of the defendant, and (4) as a direct result of that prior action, the plaintiff suffered a special grievance consisting of interference with liberty or property beyond ordinary expense of defending the action. SBK Catalogue Partnership, 723 F. Supp. at 1068. Here, it is clear, both by the allegations in the Complaint and by the attached Determination, that the disposition hearings before this Court terminated in plaintiff's favor. Plaintiff has also alleged malice.
He has not alleged, however, that he suffered a special grievance. Putting aside that issue, as well as the issue of whether the DRPA's termination of plaintiff after pre-disciplinary hearings actually constituted institution of the adjudicatory proceedings that resulted in this Court's Determination, plaintiff's malicious prosecution claims should still be dismissed because plaintiff has not alleged that the DRPA lacked probable cause to terminate him.
The Court notes that if all of the other elements of malicious prosecution were met and Drayton and Marinari were responsible causing the adjudicatory proceedings to be instituted, they could be held liable despite the fact that only the DRPA, and not Marinari or Drayton, was actually a party to the action resulting in this Court's Determination. See Robinson v. Winslow Township , 973 F. Supp. 461 (D.N.J. 1997) (a person may be held liable for malicious prosecution if he or she instituted the prosecution or caused the prosecution to be instituted or continued). The Court does not reach this issue.
Indeed, this Court's findings in the Determination collaterally estop plaintiff from making such an allegation. As this Court's Determination indicates, this Court found that the issue of whether plaintiff was actually on the bridge was a close call. The DRPA adduced substantial evidence to support a finding that Mosley was actually on the bridge, including his own admission that he was attempting to reach those on the bridge to "pray for unity and harmony" with them, that both parties agree that there was a discussion between Marinari and Mosley as Mosley attempted to join the bridge marchers, and that Mosley attempted to introduce "alibi" evidence that was not probative. Mosley, by his own statements, testified that he intended to catch up with the bridge marchers, who were far onto the bridge deck by the time that he encountered Marinari, and he would have joined them if Marinari had not first intercepted him. The evidence further showed that Marinari himself was on the bridge deck at all times after the marchers passed over the approach and onto the bridge. These facts lent further support to the notion that the Marinari-Mosley encounter occurred on the bridge deck as Marinari claimed. The Court found that the weight of the evidence was equal, and thus the DRPA had not proven that fact by a preponderance of the evidence.
The standard for a showing of probable cause for the institution of a civil proceeding, however, does not require proof by a preponderance of the evidence, but rather, as plaintiff himself states in his brief, "the presence of reasonable ground for belief that the cause of action exists supported by circumstances sufficient to warrant an ordinarily prudent man in the belief that it exists." (Pl.'s Br. at 15, n. 4 (citingMayflower v. Thor, 15 N.J. Super. 139, 151-53 (Ch.Div. 1951).) If this Court clearly had a tough time deciding whether or not plaintiff was actually on the bridge, because the proofs were largely in equipoise and the call was a close one, it can not be said that the DRPA lacked probable cause for putting the process of discharging him into motion. This Court's factual determination, namely, that the facts equally supported the notion that Mosley had entered onto the bridge deck and that he had not done so, established the existence of probable cause to institute the disciplinary charge against him. This Court's determination of the issue of Mosley's presence or lack of presence on the bridge during the march (Determination at 46-47), incorporated by reference in the Complaint, acts as a bar to any attempt Mosley could have made to argue that there was a lack of probable cause here. In the present case, of course, it is Mosley's burden to prove lack of probable cause; it is not the DRPA's burden to prove that it did have probable cause. Where facts were found to be in equipoise, it cannot be shown that the party instituting the underlying proceeding lacked a reasonable ground for belief that the cause of action exists supported by circumstances sufficient to warrant reasonably prudent belief in its existence.
The Court holds that the prior adjudication established that there was not a lack of probable cause for the DRPA to initiate disciplinary charges against Mosley and that Mosley is collaterally estopped from relitigating that issue in this case. It follows that the essential element of lack of probable cause cannot be demonstrated, and Count Two will be dismissed against the DRPA, Drayton, and Marinari.
E. Count Three: Intentional Infliction of Emotional Distress
In Count Three of the Complaint, plaintiff alleges that "[t]he defendants' actions and omissions constitute intentional infliction of emotional distress." Plaintiff's brief opposing the motion to dismiss sheds little more light on his claim, noting only that "defendants created false information in an effort to fire the plaintiff for cause" and that plaintiff allegedly collapsed and was rushed to the hospital because of a suspected heart attack as a result of being fired, and stating the elements of an action for intentional infliction of emotional distress, without any explanation of how the alleged facts support the elements. The Court notes, once again, that it never found that defendants created false information in firing plaintiff, but rather that it was a close call and that the DRPA had not met its burden of proof. Even if Marinari had lied about encountering Mosley on the bridge and Drayton knew that at the time that he discharged Mosley, however, that action and this Complaint could not sustain a cause of action for intentional infliction of emotional distress under applicable New Jersey law.
Plaintiff and defendants agree that New Jersey and Pennsylvania are similar with respect to the elements of the tort of intentional infliction of emotional distress. Under New Jersey law, claims of intentional infliction of emotional distress have been held to the standards of the Restatement (Second) of Torts § 46, which provides that "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." See Taylor v. Metzger, 152 N.J. 490 509-510 (1998) (applying § 46 to claims made in employment context);Buckley v. Trenton Sav. Fund. Soc'y, 111 N.J. 355, 365-67 (1988). In addition, the New Jersey Supreme Court has incorporated the illustrations present in § 46 comment d. into the laws of the state. Taylor, 152 N.J. 509; Buckley, 111 N.J. at 366. Under New Jersey law, then, the definitions set forth in § 46 cmt. d. describe the current state of the law governing claims of intentional infliction of emotional distress in New Jersey.
This comment provides, in relevant part:
d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts , 47 Harvard Law Review 1033, 1053 (1936). It is only where there is a special relation between the parties, as stated in § 48, that there may be recovery for insults not amounting to extreme outrage.Restatement (Second) of Torts § 46 cmt. d.
In Pennsylvania, while the state Supreme Court never has explicitly adopted the formulation of Restatement (Second) § 46 as controlling,see Katzatsky v. King David Memorial Park, 515 Pa. 183, 185 (1987) ("we leave for another day the question of the viability of section 46 in this Commonwealth"), it has implied that it will eventually adopt it, albeit with additional proof of injury requirements. Id. at 197-98 ("if section 46 . . . is to be accepted in the Commonwealth . . . the existence of the alleged emotional distress must be supported by competent medical evidence"). Therefore, the Pennsylvania Supreme Court has demonstrated that it is receptive to adopting § 46. Moreover, the Pennsylvania Superior Court has repeatedly relied upon Restatement (Second) § 46 cmt. d. to define the tort of intentional infliction of emotional distress. See Field v. Philadelphia Electric Co., 388 Pa. Super. 400 (1989). In light of this and other unrefuted decisions of the Superior Court, this Court finds that Restatement § 46 cmt. d. is the law of Pennsylvania governing intentional infliction of emotional distress claims despite the Pennsylvania Supreme Court's reluctance finally to adopt the definition provided by § 46.
Based on the foregoing, this Court finds that courts of New Jersey and Pennsylvania subscribe to substantially similar definitions of intentional infliction of emotional distress as set forth in Restatement (Second) of Torts § 46 cmt. d. Because the states' common law regarding intentional infliction of emotional distress has developed along practically identical lines, plaintiff's common law tort claims are excepted from the DRPA's sovereign immunity under the rule provided inBallinger, supra.
Applying those elements (extreme and outrageous conduct; intended to produce emotional distress or acted in reckless disregard of fact that probable that emotional distress would result; proximate cause of injury; and distress so severe that no reasonable person could be expected to endure it, see Hodgkins v. Kontes Chemical Life Sciences Product, No. 98-2783, 2000 WL 246422 *21 (D.N.J. March 16, 2000)), plaintiff's claim fails as a matter of law.
The Court assumes for purposes of this Rule 12(b)(6) motion that the allegations of the Complaint regarding Mr. Mosley's injuries are true. The Court instead analyzes whether the Complaint, given the factual circumstances of the Court's previous Determination which this Complaint incorporates by reference, states a cognizable basis for "extreme and outrageous conduct" on the part of the defendants.
This tort "tolerates many kinds of unjust, unfair and unkind conduct,"Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940, 956 (D.N.J. 1991), and it is "extremely rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery." Id. Compare Behrens v. Rutgers Univ., No. 94-358, 1996 WL 570989, *11-12 (D.N.J. March 29, 1996) (dismissing intentional infliction of emotional distress cause of action for failure to state a claim even though the Caucasian plaintiff alleged that he was fired on the basis of his race and that, as a result of discharge, plaintiff's "life was completely disrupted, his family broke up for eight months, and he experienced anxiety and depression"). Based upon the facts surrounding Mosley's conduct as found in the Determination, no reasonable juror could find that the lodging of disciplinary action by DRPA against Mosley constitutes behavior that is so atrocious and so beyond the bounds of all decency to be labeled outrageous. This is especially so when viewed in light of the facts found in the Determination, which plaintiff is collaterally estopped from challenging: while the DRPA may not have proven by a preponderance of the evidence that Mosley was on the bridge, the evidence was essentially in equipoise as to whether plaintiff was on the bridge. If there was enough evidence to make this Court think very hard before deciding which way to come down on the issue, no reasonable finder of fact could find that it was outrageous for Marinari and Drayton to assert that the plaintiff was on the bridge and for DRPA to fire him based on that evidence. Therefore, Count Three of the Complaint fails as a matter of state law, and it will be dismissed.
F. Count Four: 42 U.S.C. § 1981, 1982, 1983
In Count Four of the Complaint, plaintiff alleges that the defendants committed three different civil rights violations against him, arising under 42 U.S.C. § 1981, 1982, and 1983. The DRPA and Drayton seek to have all three bases of Count Four dismissed; Marinari seeks to have the § 1981 and § 1982 bases of Count Four dismissed. Plaintiff's entire response to this aspect of the defendants' motions consists of one paragraph:
The plaintiff has asserted that he was wrongfully discharged for engaging in constitutionally protected activities, that is, he attended a rally exercising his rights of free speech, assembly, and religion. If the facts asserted by the plaintiff are accepted as true, i.e., that he was fired for exercising those rights, then those asserted causes of action in the Complaint must not be dismissed for failure to state a claim.
(Pl.'s Br. at 25.)
1. 42 U.S.C. § 1981 and 1982
It is apparent at first glance that the § 1981 and § 1982 claims must be dismissed for failure to state a claim. 42 U.S.C. § 1981 protects against discrimination concerning certain specified activities on the basis of race. 42 U.S.C. § 1982 protects against racial discrimination with respect to rights in real or personal property. Plaintiff has not alleged that he was discriminated against with respect to real or personal property or on the basis of his race, in the Complaint, in his brief, or at oral argument. Therefore, defendants' motions to dismiss the § 1981 and § 1982 bases of Count Four will be granted.
2. 42 U.S.C. § 1983 42 U.S.C. § 1983, is a powerful legislative "sword" providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government. Since its enactment, § 1983 has become Congress's primary means of protecting United States citizens from illegal state action. Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 1.1 (4th ed. 1997).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. Thus, to properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law.West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff does allege that the defendants have acted under color of law. Plaintiff's Complaint and his brief opposing the motions to dismiss contain different theories of constitutional rights allegedly violated. The Complaint alleges violations of due process and equal protection of the law; the brief alleges violations of his First Amendment rights. The facts as alleged in both the Complaint and the Determination, however, do not support either the Complaint's or the brief's versions of the cause of action.
The Court notes that a § 1983 claim cannot be pursued against the DRPA unless plaintiff alleges that the DRPA itself denied plaintiff his constitutional rights or that a DRPA agent acted pursuant to a policy or custom of the DRPA in violating his constitutional rights. See Monell v. New York City Dept. of Social Servs . 436 U.S. 658 (1978). Neither Marinari or Drayton are policymakers for the DRPA, see Holt Cargo Systems, Inc. v. Delaware River Port Authority , 20 F. Supp.2d 803, 840 (E.D.Pa. 1998), and the Complaint does not allege that either acted pursuant to DRPA custom or policy in violating plaintiff's rights. And therefore any claim against the DRPA under § 1983 for violation of those rights must be dismissed. To the extent to which plaintiff alleges that his due process and equal protection rights were violated with regard to his termination, the DRPA could be held liable (if the plaintiff could otherwise make out a § 1983 claim) because plaintiff's discharge was an official proceeding and action of the DRPA itself. These distinctions are unimportant here because neither plaintiff's claims for due process and equal protection violations nor First Amendment violations survive in any event.
As stated earlier, plaintiff is collaterally estopped from arguing that he was discharged because of his participation in the rally; this Court found in the Determination, incorporated by reference in the Complaint, that no one was fired because of their participation in the rally. Therefore, the version of plaintiff's § 1983 claim expressed in his brief fails.
Plaintiff's claims that his due process and equal protection rights were violated likewise fail. The Equal Protection Clause of the Fourteenth Amendment creates no substantive rights, Vacco v. Quile, 521 U.S. 793, 799 (1997), but rather protects against intentional discrimination because of plaintiff's membership in a particular class,Holt Cargo Systems, 20 F. Supp.2d at 825. Plaintiff has alleged that he was treated unfairly as an individual; he has not argued in his Complaint, his brief, or at oral argument that he was discriminated against on the basis of his membership in a class. Therefore, equal protection cannot be a basis of his § 1983 claims.
Plaintiff has not specified whether his alleged deprivation of due process is procedural or substantive. To the extent to which plaintiff alleges a procedural due process violation, that allegation does not state a claim, because it is clear from the Complaint and from this Court's December 22, 1998 Determination that plaintiff received all procedural process which was due to him. Plaintiff received contractual pre-disciplinary hearings before the DRPA discharged him, and he had the opportunity to challenge his termination after the fact through the DRPA-Local 716 grievance process, which resulted in five days of hearings in this Court. Plaintiff won during those hearings, and he accordingly was awarded his job, his seniority status, and backpay. He cannot be heard to argue that his procedural rights were violated.
To the extent to which plaintiff alleges a substantive due process violation, that too fails. The question is whether defendants deliberately deprived plaintiff of life, liberty, or property in a manner that was arbitrary and capricious, lacking a reasonable, rational relation to a legitimate end. See State of New Jersey Dep't of Environ. Protection and Energy v. Gloucester Environ. Mgmt. Servs., Inc., 866 F. Supp. 826, 834 (D.N.J. 1994) ("Substantive due process requires that a law not be unreasonable, arbitrary or capricious, and that the means selected bear a rational relation to the legitimate aim sought to be achieved."). When claims concern specific acts by, as opposed to adopted rules or legislation, only the most egregious official conduct can be said to be `arbitrary in the constitutional sense,'" such that substantive due process is violated. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 126, 128 (1992). As this Court has already explained earlier in this Opinion, the Court's findings in the Determination collaterally estop plaintiff from contending now that the DRPA, Marinari, and Drayton lacked probable cause for terminating him. Given that that is so, it cannot be said that defendants acted in a way that "shocks the conscience" when they discharged him. The substantive due process claim cannot stand.
Plaintiff has not stated a claim under 42 U.S.C. § 1983. This Court will thus grant the motion by the DRPA and Drayton to dismiss the § 1983 basis of Count Four as well. In the accompanying Order, plaintiff shall be directed to show cause within fourteen days why this Court should not similarly dismiss the § 1983 basis of Count Four as against Marinari as well.
G. Motion to Amend
Plaintiff has filed a motion seeking ten days to amend his Complaint to cure any notice pleading deficiencies, as would be provided under Fed.R.Civ.P. 12(e) if this Court granted a defendant's motion for more definite statement. No motion before this Court, however, sought a more definite statement of the facts of the case. Indeed, the facts of this case were well fleshed out because the plaintiff's Complaint incorporated by reference the December 22, 1998 Determination finding the facts of the dispute. The Court has simply found that, based on the facts as alleged in the Complaint and as found in the Determination, plaintiff's claims fail as a matter of law. The Court will not grant plaintiff's motion for ten days in which to amend the Complaint.
The Court is cognizant of the fact that courts often permit at least one amended complaint to be filed after a complaint is dismissed pursuant to Fed.R.Civ.P. 12(b)(6), subject of course to challenges by a defendant that a particular amendment would be futile or prejudicial to the defendant. Here, plaintiff has failed to submit a proposed Amended Complaint with his motion, as required by Local Civil Rule 7.1(e)(2), and this Court is left to guess the nature of the plaintiff's intended amendments. The Court cannot rule on the futility of any particular amendment which plaintiff might offer in the abstract. Plaintiff's motion will be denied.
III. Conclusion
For the foregoing reasons, this Court will grant the motion to dismiss filed by the DRPA and Paul Drayton and J.P. Marinari's motion for partial dismissal. This Court will order plaintiff to show cause within fourteen (14) days of today's date, why Count Five and the § 1983 basis of Count Four should not be dismissed as against Marinari as well. Finally, this Court will deny plaintiff's motion to amend the Complaint. The accompanying Order is entered.
ORDER
This matter having come before the Court upon a motion by defendants Delaware River Port Authority ("DRPA") and Paul Drayton to dismiss, a motion by defendant J.P. Marinari for partial dismissal, and a motion by plaintiff Edwin Mosley to amend the Complaint; and the Court having considered the parties' submissions as well as oral argument on March 21, 2000; and for the reasons expressed in an Opinion of today's date;
IT IS this day of August 2000 hereby
ORDERED that the motion by the DRPA and Drayton to dismiss the Complaint be, and hereby is, GRANTED, and the Complaint is DISMISSED against the DRPA and Drayton; and it is
ORDERED that the motion by Marinari for partial dismissal of the Complaint be, and hereby is, GRANTED, and Counts I, II, III, and the 42 U.S.C. § 1981 and 1982 bases of Count Four of the Complaint areDISMISSED against Marinari; and it is
ORDERED that plaintiff's motion to amend the Complaint be, and hereby is, DENIED; and it is
ORDERED that plaintiff show cause within fourteen (14) days of today's date why this Court should not dismiss Count Five and the 42 U.S.C. § 1983 basis of Count Four against defendant Marinari as well by submitting an appropriate brief as to which defendant Marinari shall then have ten (10) days to respond; if plaintiff agrees that this Opinion's analysis of Count Five and the Section 1983 basis of Count Four would have equal applicability to the claims against defendant Marinari, then plaintiff may so indicate without the necessity of further briefing.