The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendants' motion to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 39.)
The case is brought under Title 42 of the United States Code, section 1983. Jurisdiction exists under section 1331 of Title 28 of the United States Code ("federal question").
Defendants' motion to dismiss will be granted in part and denied in part. Count I will survive the instant Order with respect to the pre-termination procedural due process claim as outlined in the Court's August 16, 2006 Order. The motion to dismiss with respect to Count II will be granted because Plaintiff has failed to allege that his speech was a "public concern" and that his interest in speech outweighed the interest of the Defendants in delivering their services. The motion to dismiss with respect to Defendant Rinaldi in Count III will be denied because Plaintiff has sufficiently alleged a First Amendment retaliation claim. The motion to dismiss with respect to Defendants' media contact in Count III will be granted because the interest of the public in receiving information from public officials outweighs the privacy interest of the Plaintiff. Finally, the motion to dismiss with respect to Count IV will be denied because Plaintiff has sufficiently alleged the elements of a failure to train cause of action.
The facts as alleged in Plaintiff's Complaint are as follows.
Plaintiff Mike Savokinas served as a Police Officer for Defendant Pittston Township ("Pittston") for nine years before being terminated on January 10, 2006. (Am. Compl. ¶ 1, Doc. 37.) Plaintiff's employment was protected under the provisions of a Collective Bargaining Agreement ("CBA") with Pittston. (Id. ¶ 11.) Plaintiff was terminated from his position as a Police Officer, although "just cause" is the only proper rationale for termination of a police office pursuant to the language of the CBA. (Id. ¶ 13.) He was never informed of the existence or nature of any charges against him, thereby depriving him of any opportunity to respond thereto, and was not provided with pre- or post-termination hearings. (Id. ¶¶ 15-17.) At some time, Plaintiff engaged in speech on police matters, including but not limited to the prosecution of a currently pending crime. (Id. ¶ 21.) After the filing of this lawsuit, on or around February 21, 2007, Defendant Rinaldi contacted and interfered with Plaintiff's employment with the Borough of West Wyoming. (Id. ¶ 26.) Defendants also contacted WBRE news regarding a mediation session between Plaintiff and Defendants. (Id. ¶¶ 27-29.)
On January 17, 2006, Plaintiff filed a Complaint. (Doc. 1.) On February 14, 2006, Defendants filed a motion to dismiss. (Doc. 8.) By Order of the Court of August 16, 2006, Defendants' motion to dismiss was granted insofar as they sought dismissal of Plaintiff's post-termination procedural due process claims and Plaintiff's substantive due process claims, and denied with respect to Plaintiff's pre-termination procedural due process claims. (Doc. 21.) The case was then referred for mediation, but this process did not result in a settlement. (Doc. 25.)
On March 13, 2007, Plaintiff filed an Amended Complaint. (Doc. 37.) On April 2, 2007, Defendants filed the present motion to dismiss the amended complaint. (Doc. 39.) This motion is fully briefed and ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all of the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d. 80 (1957)). As a result of the Twombly holding, Plaintiff must now nudge his claims "across the line from conceivable to plausible" to avoid dismissal thereof. Id. The Supreme Court noted just two weeks later in Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam), that Twombly is not inconsistent with the language of Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Id. (citing Twombly, 127 S.Ct. at 1959 (quoting Conley, 355 U.S. at 47)).
There has been some recent guidance from the Courts of Appeals about the apparently conflicting signals of Twombly and Erickson. The Second Circuit Court of Appeals reasoned that "the [Supreme] Court is not requiring [in Twombly] a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). Similarly, the Seventh Circuit Court of Appeals stated that "[t]aking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, - F.3d -, 2007 WL 2406859, at *4 (7th Cir. Aug. 24, 2007).
Until further guidance, this Court will follow the guidance of the Second and Seventh Circuit Courts of Appeals, and apply a flexible "plausibility" standard, on a case-by-case basis, in those contexts in which it is deemed appropriate that the pleader be obliged to amplify a claim with sufficient factual allegations.
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
In the statement of jurisdiction, Plaintiff's Amended Complaint again alleges violations of the "First, Fourth and Fourteenth Amendments" to the United States Constitution. (Am. Compl. ¶ 9, Doc. 37.) The Fourth Amendment to the United States Constitution, which protects ...