Sous v. Timpone, Civ. No. 15-7972 (KM) (MAH)

MAMDOUH SOUS and MANAL SOUS, Plaintiffs, v. STEVEN TIMPONE, SONJA BACICH-TIMPONE,TARA TIMPONE, BOROUGH OF NORTH HALEDON,NORTH HALEDON POLICE DEPARTMENT,DETECTIVE DAVID PARENTA and JOHN DOES 1-3, Defendants.

Civ. No. 15-7972 (KM) (MAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

May 9, 2016

OPINION

MCNULTY, U.S.D.J.:

On March 17, 2013, a young woman, Michelle Sous, was crossing a public street in the Borough of North Haledon when she was struck and killed by a car that was driven by Steven Timpone. Her parents, plaintiffs Mamdouh Sous and Manal Sous, bring this civil rights action against (1) Steven Timpone, Sonja Bacich-Timpone, and Tara Timpone (collectively, the "Timpone Defendants"), and (2) the Borough of North Haledon, the North Haledon Police Department, and Detective David Parenta (collectively, the "North Haledon Defendants"). Now before the Court are motions of the Timpone Defendants and North Haledon Defendants to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 10, 14) For the reasons set forth below, the motions will be granted and the Complaint will be dismissed without prejudice to the filing of an amended complaint within 30 days.

I. BACKGROUND

A. Procedural History

On April 17, 2014, the Estate of Michelle Sous filed a lawsuit in the New Jersey Superior Court, Passaic County, against Steven Timpone and the North Haledon Defendants. (Compl. Factual Background ¶ 4) That suit alleged that Mr. Timpone was negligent in the operation of his vehicle and that the North Haledon Defendants engaged in spoliation of evidence and invasion of privacy. (Id.)

The Souses filed this, their federal-court action, on November 9, 2015. (Dkt. No. 1) The Complaint asserts claims under 42 U.S.C. § 1983, alleging deprivation of the Souses' rights under the First, Fourth and Fourteenth Amendments, as well as a claim under state law.

The Timpone Defendants filed a motion to dismiss on December 28, 2015. (Dkt. No. 10) The plaintiffs opposed on January 19, 2016 (Dkt. No. 11), and the Timpone Defendants filed a reply on January 25, 2016 (Dkt. No. 12). The North Haledon Defendants filed their motion to dismiss on March 29, 2016. (Dkt. No. 14) The plaintiffs opposed the motion on April 19, 2016 (Dkt. No. 16), and the North Haledon Defendants submitted a reply on April 25, 2016 (Dkt. No. 17).

B. Facts

The allegations of the Complaint arise from actions that the Souses took after the accident, and from actions that the Timpones and the police took in response. Essentially, the Souses sue for malicious prosecution and First Amendment retaliation, based on the defendants' filing of police reports and a civilian criminal complaint.

Following the accident, the Souses pressed for a further investigation. (Compl. Factual Background ¶ 3) The Souses fault the North Haledon Police who came to the accident scene because Mr. Timpone (1) was not given a field test for the presence of alcohol or drugs in his system, (2) was permitted to keep his cell phone and make calls, and (3) was not issued a summons for a moving motor vehicle violation. (Id. ¶ 2) The Souses also began to campaign forthe passage of "Michelle's Law," a proposed statute that would require police officers to conduct drug and alcohol tests in fatal accident investigations. (Id.) In support of their cause, the Souses posted signs on their property. (Id.) Finally, as related above, in 2014 the Souses filed a state-court action against Mr. Timpone and the North Haledon defendants. (Id. ¶ 4)

According to the Complaint, the defendants then retaliated against the Souses for their exercise of First Amendment rights to express themselves and to file civil actions. What followed was the "filing of numerous false police reports to the North Haledon Police Department, by the Timpone's, who falsely alleged that the plaintiffs were improperly posting various material on their property when it was fully within their First Amendment Rights and privileges to do so." (Compl. Factual Background ¶ 6)¹

The Complaint alleges that the defendants then "caused a false criminal complaint to be filed against Mamdouh Sous." (Id. ¶ 7) That criminal complaint, according to the Souses, was premised on false allegations and was not supported by probable cause. (Id.)

The criminal complaint at issue is a civilian criminal complaint filed in North Haledon Municipal Court by Tara Timpone on September 11, 2013. (Dkt. No. 14-2, Ex. A at 1)² The complaint, signed by Ms. Timpone, contains three charges:

(1) That Mr. Sous made a harassing communication, specifically, "posting signs indicating Steven Timpone is a killer who got away without penalty because he was involved in a fatal accident involving the defendant's daughter. In violation of NJS 2C:33-4A, a disorderly persons offense."

(2) That Mr. Sous "did post signs on Mr. Sous's property and on borough property suggesting Steven Timpone is a killer and has gone unpunished, in violation of Boro Ordinance 124-12."

(3) That Mr. Sous "did erect signs on Borough property when advertising signs of any type shall not be allowed to be erected in the Boro, in violation of Boro ordinance 180-44."

The civilian criminal complaint, sworn by Ms. Timpone before a court administrator, recites that "Probable cause has been found for the issuance of this complaint by Judge John F. Meola." (Dkt. No. 14-2, Ex. A at 2) A summons issued, directing Mr. Sous to appear on September 16 (with handwritten revision to September 23), 2013. The criminal complaint indicates that an initial appearance occurred on September 30, 2013, at which Mr. Sous entered a plea of not guilty. (Id. at 1) No further details about the criminal case appear.

The Complaint in this federal court action also alleges that the defendants engaged in "cyberstalking" to cause them "emotional distress." (Compl. Count 4, ¶ 2)

II. LEGAL STANDARD

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion, a court must take the allegations of the complaint as true and draw reasonable inferences in the light most favorable to the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional "reasonable inferences" principle not undermined by Twombly, see infra).

Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

Applying Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has provided a three-step process for analyzing a Rule 12(b)(6) motion:

To determine whether a complaint meets the pleading standard, our analysis unfolds in three steps. First, we outline the elements a plaintiff must plead to a state a claim for relief. See [Iqbal, 556 U.S.] at 675; Argueta, 643 F.3d at 73. Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. Finally, we look for well-pled factual allegations, assume their veracity, and then "determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. This last step is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

In general, on a Rule 12(b)(6) motion the Court is confined to the face of the Complaint. "However, an exception to the general rule is that a 'document integral to or explicitly relied upon in the complaint' may be considered 'without converting the motion to dismiss into one for summary judgment.' "Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). That is, a plaintiff who misstates the contents of an essential document on which the claims are based may not avoid dismissal simply by declining to attach that document. A defendant served with such a complaint may, on its motion to dismiss, rely on such a document if its authenticity is not in question. Pension Ben. Guar. Corp., 998 F.2d at 1192.

III. ANALYSIS

The Complaint asserts three counts under 42 U.S.C. § 1983: malicious prosecution, retaliation for the exercise of First Amendment rights, and vicarious municipal liability. It also asserts a fourth claim of "cyberstalking," which I interpret as a state-law tort claim of intentional infliction of emotional distress.

A. Counts 1, , and 3: Amenability to suit under Section 1983

There are threshold barriers to suit under Section 1983 that bar counts 1, 2, and 3 as against most of the defendants. The Timpone Defendants...