Traynor v. Billhimer

GERARD W. TRAYNOR, Plaintiff, v. BRADLEY BILLHIMER et. al., Defendants.

Civil Action No. 21-7463 (GC) (TJB)

United States District Court, D. New Jersey

February 24, 2023

NOT FOR PUBLICATION

MEMORANDUM OPINION

Georgette Castner, United States District Judge.

This matter comes before the Court upon Defendants Ocean County Prosecutor's Office (“OCPO”), Bradley Billhimer (“Billhimer”), Joseph D. Coronato (“Coronato”), and Vincent A. Petrecca's (“Petrecca”) (collectively “OCPO Defendants”) and Mancini Realty Company (“Mancini Realty”) and Joseph H. Mancini's (“Mancini”) (collectively “Mancini Defendants”) Motions to Dismiss Plaintiff Gerard W Traynor's (“Plaintiff') Second Amended Complaint (ECF No. 19). (ECF Nos. 29, 27, respectively.) Plaintiff opposed both Motions (ECF Nos. 32, 33), and Defendants replied (ECF Nos. 34, 37). After consideration of the Parties' submissions, the Court decides the Parties' Motions without oral argument pursuant to Local Civil Rule 78.1. For the reasons outlined below, all Counts against OCPO Defendants are dismissed without prejudice and Counts One, Two, and Three against Mancini Defendants are dismissed without prejudice. Count Four brought only against Mancini Defendants is also dismissed without prejudice.

I. BACKGROUND^[1]

A. Factual Background

Plaintiff is a former police sergeant with the Long Beach Township Police Department (“LBTPD”) and a private attorney. (See Second Am. Compl. ¶¶ 5, 21, 30, ECF No. 19.) Plaintiff also served as the President of Lodge No. 5 of the Fraternal Order of Police, a minority union for police officers of Long Beach Township. (Id. ¶ 5.)

In November 2013, Plaintiff was asked by the State Fraternal Order of Police to speak at a panel about Hurricane Sandy. (Id. ¶ 12.) Plaintiff spoke on the panel in his capacity as a representative of the State Fraternal Order of Police, not in his capacity as a Long Beach Township Police Officer. (Id. ¶ 13.) “The following week the Asbury Park Press/Beach Haven Times ran an article stating that Southern Ocean County was underprepared for Hurricane Sandy.” (Id. ¶ 14.) Shortly thereafter, in response to the article, Mancini, who is the Mayor of Long Beach Township (“LBT”) and a private realtor,^[2] reached out to Plaintiff. (See id. ¶¶ 6, 15.) Mancini berated Plaintiff and accused him of throwing Mancini “under the bus” while Plaintiff spoke at the Fraternal Order of Police panel. (See id. ¶ 15.) Specifically, Mancini said to Plaintiff: “[y]ou're done. Your career's over. Don't ask for another [f]**king thing. You're [f]**king done.” (Id.)

In the years that followed, Plaintiff alleges that Mancini, Police Chief Anthony Deely, LBT, and LBTPD retaliated against him.^[3] (Id. ¶ 16.) Sometime during this period, Plaintiff contested his failure to be promoted to Lieutenant. (Id. ¶ 18.) Asa result of Plaintiff contesting his failure to be promoted, OCPO issued a directive that attorneys who were police officers had to notify their Police Chiefs of any matters for which they would be going to court. (See id.) As only three police officers in Ocean County were attorneys, and the other two were Police Chiefs, this directive in essence only applied to Plaintiff. (Id.) Also in this period, LBTPD began investigating Plaintiff for a variety of violations including “not properly responding to radio calls or . . . missing while on duty.” (Id. ¶¶ 19-22.) In an internal investigation report filed against Plaintiff, LBTPD stated that a basis for disciplining Plaintiff was his having stopped at his law office for over three minutes to use the bathroom while on duty. (See id. ¶ 22.)

Around October 12,2018, the internal investigation was turned over from LBTPD to OCPO. (Id. ¶ 23.) Such investigations are typically turned over to the New Jersey State Police. (Id.) Thereafter, LBTPD and OCPO applied for and were granted a data warrant for all of Plaintiff's “personal cell phone records, including call detail records, cell site information, subscriber information, all available picture imaging and text messaging for the time period of January 1, 2018[,] through October 10, 2018.” (Id. ¶ 24.)^[4] After OCPO took over Plaintiff's internal investigation, Petrecca insisted on taking over the prosecution. (Id.)

The internal investigation concluded that Plaintiff improperly accessed motor vehicle records when he looked up his daughter and a friend on his LBTPD computer. (See id. ¶ 26.) Neither his daughter nor his friend was aggrieved by this search, but nevertheless, on April 1,2019, LBTPD arrested Plaintiff for the violation.^[5] (Id. ¶¶ 26-27.) LBTPD arrested Plaintiff after he changed into his police uniform so that they could take away his badge and weapon even though it had the opportunity to arrest him before he got in uniform. (Id. ¶ 27.) LBT and LBTPD told the public that Plaintiff's arrest was for “unspecified computer crimes.” (Id.) Other officers in New Jersey committed similar offenses, i.e., use of a police department database for personal inquiries, but their matters were remanded for administrative review, and they were not arrested. (Id. ¶ 28.)

On September 5, 2019, subsequent to Plaintiff's arrest, he was terminated. (Id. ¶ 30.) Plaintiff ultimately pled guilty to the offense with which he was charged. (Id. ¶ 32.) In the time since his arrest and guilty plea, Plaintiff has continued his work as a private attorney. (See Id. ¶¶ 32-34.) In that time, Mancini Defendants acted in concert with Mancini in his capacity as Mayor of LBT to interfere with Plaintiff's “property interest and liberty interest in his contractual relations with his clients.” (Id. ¶ 34.) Specifically, in at least one instance, the Mancini Defendants, acting as realtors, refused to do business with Plaintiff's clients because Plaintiff was the clients' attorney.^[6] (Id. ¶¶ 42, 58.) The Mancini Defendants did this in retaliation for Plaintiff's comments made in November 2013. (See id. ¶¶ 12, 35.)

B. Procedural Background

On March 30, 2021, Plaintiff filed his original Complaint in this matter. (Compl., ECF No. 1.) After the Mancini Defendants moved to dismiss his original Complaint (ECF No. 3), Plaintiff filed his first Amended Complaint. (First Am. Compl., ECF No. 4.) The Mancini Defendants and the OCPO Defendants moved to dismiss the First Amended Complaint. (ECF Nos. 6, 11.) On December 6, 2021, Plaintiff again amended his Complaint. (Second Am. Compl.) Plaintiff's Second Amended Complaint brings four Counts, the first three of which are brought against all Defendants and the fourth of which is brought against only the Mancini Defendants: (1) Retaliation under the First and Fourteenth Amendments of the United States Constitution through 42 U.S.C. § 1983; (2) Violation of Article I, Paragraphs 6 and 18 of the New Jersey Constitution through the New Jersey Civil Rights Act (“NJCRA”); (3) Selective Prosecution under the First and Fourteenth Amendments of the United States Constitution through 42 U.S.C. § 1983; and (4) Tortious Interference with Contract and Prospective Business Relationships and Economic Advantage against Mancini Defendants. The Court now considers Defendants' motions to dismiss Plaintiff's Second Amended Complaint.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2)^[7] “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)).

A district court conducts a three-part analysis when considering a motion to dismiss pursuant to Rule 12(b)(6). Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.'” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of plaintiff's well-pleaded factual allegations and “construe the complaint in the light most favorable to the plaintiff.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). The court, however, may ignore legal conclusions or factually unsupported accusations that merely state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Finally, the court must determine whether “the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Fowler, 578F.3dat211 (quoting Iqbal, 556 U.S. at 679). A facially plausible claim “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 210 (quoting Iqbal, 556 U.S. at 678). On a Rule 12(b)(6) motion, the “defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

III. DISCUSSION

For the reasons set forth below, all Counts against OCPO Defendants are dismissed without prejudice and Counts One, Two, and Three against Mancini Defendants are dismissed without prejudice. Count Four brought only against Mancini Defendants is also dismissed without prejudice.

A. Counts One and Two-Retaliation under 42 U.S.C. § 1983 and NJCRA

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for a violation of his constitutional rights. Rahman v. Taylor, No. 10-367, 2010 WL 2178938, at *5 (D.N.J. May 27, 2010). Section 1983 provides:

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

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