Italian Am. one Voice Coal. v. Twp. of W. Orange

1

ITALIAN AMERICAN ONE VOICE COALITION, INC., Plaintiff, v. TOWNSHIP OF WEST ORANGE, and ROBERT D. PARISI, in his official capacity as Mayor of the Township of West Orange, Defendants.

Civil Action No. 2:20-cv-12650

United States District Court, D. New Jersey

March 31, 2023

OPINION

CLAIRE C. CECCHI, U.S.D.J.

I. INTRODUCTION

This matter comes before the Court by way of Defendants Robert Parisi, in his official capacity as Mayor of West Orange, New Jersey,^[1]and Township of West Orange's (“West Orange”) (collectively “Defendants”) motion to dismiss Plaintiff Italian American One Voice Coalition Inc.'s (“Plaintiff” or “IAOVC”) Second Amended Complaint (ECF No. 29, “SAC”) pursuant to Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). ECF No. 32. Plaintiff opposed Defendants' motion (ECF No. 35 (“Opp.”)), and Defendants replied. ECF No. 39. With the Court's leave, Plaintiff and Defendants filed supplemental briefs (ECF Nos. 42 and 43), and Defendant furnished a response. ECF No. 44.^[2] The Court has considered the submissions made in support of and in opposition to the motion and decides the motion without oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motion is granted and the Court dismisses the SAC.

II. BACKGROUND

Plaintiff, an “apolitical organization dedicated to the rightful representation of Americans of Italian origin,” (SAC at ¶ 11) alleges that Defendants violated its constitutional rights when Defendants removed the Christopher Columbus monument (the “Monument”) located at the intersection of Valley Street and Kingsley Street in West Orange, New Jersey. See generally id. On October 10, 1992, West Orange public officials dedicated the Monument, which was allegedly funded and installed by members of the Italian-American community of West Orange through the Valley Civic Association (the “VCA”). Id. at ¶¶ 21, 23, 25, 27. Plaintiff asserts that its members also were members of the VCA at the time at the time of the Monument's funding, and that some IAOVC members personally contributed to the funding and installation of the Monument. Id. at ¶¶ 17-19. Plaintiff further claims that its members regularly visited the Monument and intended to continue visiting the Monument prior to its removal. Id. at ¶¶ 15-16.

Years after the Monument's construction, during the Summer of 2020, civic protests took place throughout the United States, including in New Jersey, against systemic racism. Id. at ¶ 38. Plaintiff contends that following these protests, Mayor Parisi announced that he was in favor of the removal of the Monument so that it could be replaced with “something that is a better representation” of West Orange because “what Columbus means today is not what it meant to the community in the 90s.” Id. at ¶ 45. On June 13, 2020, Mayor Parisi allegedly announced his final decision on behalf of West Orange to remove the monument. Id. at ¶ 48. Plaintiff asserts that Mayor Parisi and the City Council of West Orange did not propose, discuss, nor pass any ordinance or resolution authorizing the removal of the Monument. Id. at ¶ 50. Plaintiff also alleges that on June 23, 2020, West Orange's Assistant Township Attorney, Kenneth Kayser, presented at a City Council meeting and expressed the opinion that Mayor Parisi had the authority to remove the Monument without any affirmative vote by the City Council. SAC at ¶ 50. Thereafter, West Orange public works employees purportedly removed the Monument on July 14, 2020, at which point the VCA allegedly retook possession. Id. at ¶ 52.

On September 14, 2020, Plaintiff brought its initial complaint in this case, followed by a two-count first amended complaint on November 19, 2020. ECF Nos. 1, 13. In those initial pleadings, Plaintiff argued that Defendants, by removing the Monument, violated Plaintiff's rights under the Equal Protection Clause to the Fourteenth Amendment to the U.S. Constitution, and its right to procedural due process under the Fifth Amendment to the U.S. Constitution, incorporated against the states under the Fourteenth Amendment to the U.S. Constitution. ECF No. 13 at ¶¶ 27-38. On July 30, 2021, this Court dismissed Plaintiff's first amended complaint for failure to state a claim for which relief can be granted. Italian Am. One Voice Coal. v. Twp. of W. Orange, No. 20-12650, ECF No. 27, 2021 WL 3260855 (D.N.J. July 30, 2021). Specifically, this Court determined that Plaintiff failed to adequately allege an equal protection violation because Plaintiff's conclusory allegations did not support an inference of discriminatory intent. Id. at *3. Further, this Court rejected Plaintiff's procedural due process claim because Plaintiff failed to adequately allege a protected property interest in the Monument. Id. at *3-4.

On August 26, 2021, Plaintiff filed its instant SAC. ECF No. 29. Plaintiff pled additional facts in support of its existing equal protection and procedural due process claims. See generally id. Further, Plaintiff added two causes of action for violation of its First Amendment right to freedom of speech (id. at ¶¶ 60-73) and abuse of public trust (id. at ¶¶ 93-107). On May 26, 2022, Plaintiff requested permission to file a supplemental brief in support of its First Amendment claims in light of the United States Supreme Court's decision in Shurtleff v. City of Boston, 142 S.Ct. 1583 (2022), decided May 2, 2022. ECF No. 40. With the Court's permission, Plaintiff and Defendants submitted supplemental briefing and a defense reply. ECF Nos. 41-43.

III. LEGAL STANDARD

a. Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6)

To survive dismissal under Rule 12(b)(6), a complaint must meet the pleading requirements of Rule 8(a)(2) and “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In evaluating the sufficiency of a complaint, a court must also draw all reasonable inferences in favor of the non-moving party. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not ‘show[n] that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (citing Fed.R.Civ.P. 8(a)(2)). Ultimately, a complaint “that offers ‘labels and conclusions' or . . . tenders ‘naked assertions' devoid of further factual enhancement,” will not withstand dismissal under Rule 12(b)(6). Id. at 678 (citations omitted).

IV. DISCUSSION^[3]

As a threshold matter, it appears that Plaintiff possesses Article III standing to bring the instant claims. Standing requires three elements: (1) an injury in fact that is concrete and particularized and actual and imminent, as opposed to conjectural or hypothetical; (2) a causal connection between the injury and the conduct of which the plaintiff complains; and (3) the alleged injury is likely to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Here, drawing all inferences in favor of Plaintiff, the SAC adequately establishes Article III standing.

The Court looks primarily, as do the parties, to the Eleventh Circuit's instructive opinions in Gardner v. Mutz, 962 F.3d 1329 (11th Cir. 2020) (“Gardner I”) and Gardner v. Mutz, 857 Fed.Appx. 633, 634-35 (11th Cir. 2021), cert. denied, 142 S.Ct. 762, 211 L.Ed.2d 478 (2022) (“Gardner II”). There, members of a Confederate heritage organization sued the City of Lakeland, Florida for violations of their First Amendment free speech rights and due process rights under the Fourteenth Amendment arising from the decision to relocate a privately-funded Confederate monument from one public park to another. Gardner I, 962 F.3d at 1334. In Gardner I, the Eleventh Circuit determined that plaintiffs lacked standing and affirmed dismissal because plaintiffs had not shown that removal of the Confederate monument represented a “concrete” or “particularized” injury. Id. at 1341-44. Defendants argue that the injury suffered in the instant action is analogous to that in Gardner I, and therefore Plaintiff here similarly lacks standing for failure to adequately allege injury.

The Court disagrees and instead is guided by the Eleventh Circuit's more recent decision in Gardner II. In Gardner II, the circuit found standing pursuant to an amended pleading showing sufficiently concrete and particularized injury. Specifically, the court found:

Namely, multiple plaintiffs allege that they visit the monument regularly and have concrete plans to visit the monument again in the future. They allege that their planned future use and enjoyment of the monument is obstructed by the City's relocation of it. These are the sorts of future injuries that were missing in Lujan and that are concrete for Article III purposes. The injuries are also particularized because they injure only those people who regularly visit the monument and plan to do so in the near future, rather than the undifferentiated public. These plaintiffs also satisfy the other two elements of standing doctrine because they allege that the City caused the injury by moving the monument and because their injury can be redressed via the requested injunction to have it returned.

Gardner II, 857 Fed.Appx. at 634-35. Plaintiffs SAC in the instant action appears to replicate the amendments made in Gardner II to demonstrate standing. Plaintiff's SAC now asserts a particularized, concrete injury by pleading that its individual members visited the Monument regularly, intended to visit in the future, and will no longer be able to enjoy the Monument after its removal. SAC at ¶¶ 15-16, 58. Likewise, Plaintiff adequately pleads the second...