Reed v. Scheffler

• Decision Date: 28 October 2016
• Docket Number: 1:16–cv–00423–NLH–AMD
• Citation: 218 F.Supp.3d 275
• Parties: William A. REED, Jr. as personal representative for Elsie M. Reed, an incompetent individual, and William A. Reed, Jr., individually, Plaintiff, v. Karen SCHEFFLER Mayor of the Borough of Palmyra, Tracy Kilmer Housing Official, Borough of Palmyra, Borough of Palmyra, Defendants.
• Court: U.S. District Court — District of New Jersey

218 F.Supp.3d 275

William A. REED, Jr. as personal representative for Elsie M. Reed, an incompetentindividual, and William A. Reed, Jr., individually, Plaintiff,

v.Karen SCHEFFLERMayor of the Borough of Palmyra, Tracy Kilmer Housing Official, Borough of Palmyra, Borough of Palmyra, Defendants.

1:16–cv–00423–NLH–AMD

United States District Court, D. New Jersey.

Signed October 28, 2016

PETER M. KOBER, 1876 GREENTREE ROAD, CHERRY HILL, NJ 08003, On behalf of plaintiff.

RICHARD L. GOLDSTEIN, ASHLEY L. TOTH, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA, WOODLAND FALLS CORPORATE PARK, 200 LAKE DRIVE EAST, SUITE 300, CHERRY HILL, NJ 08002, On behalf of defendantKaren Scheffler.

OPINION

HILLMAN, District Judge

This case involving allegations of, and free speech violations arises out of inter alia , due process the application of the Borough of Palmyra's ordinance requiring a certificate of occupancy prior to the sale of a home.Presently before the Court is the motion of defendantKaren Scheffler, the Mayor of Palmyra, to dismiss plaintiff's free speech and defamation claims.For the reasons expressed below, defendant's motion will be granted.

BACKGROUND

According to his complaint, plaintiff, William A. Reed, Jr., held powers of attorney over the affairs of his mother, Elsie M. Reed, who owned a home at 28 Pear Street in Palmyra, New Jersey.Ms. Reed lived in the home until July 2012.In early 2013, plaintiff wished to sell the house in "as is" condition.The tax assessed value of the property as of January 7, 2013 was $134,900.In February 2014, plaintiff found a buyer who was in the home remodeling business, and after several inspections of the property, offered plaintiff $95,000.By the end of February 2014, the buyer had secured a mortgage and the parties were ready to close on the property no later than April 1, 2014 because time was of the essence for the buyer.

On February 27, 2014, plaintiff sent an email to defendantTracy Kilmer, who is the Borough's housing official, to inquire about the Borough's ordinance requiring a home owner to obtain a certificate of occupancy ("COO") from the Borough prior to the sale of a home.Kilmer replied to plaintiff's email and informed him that such an ordinance, Ordinance 2013–25, was in effect and plaintiff was required to obtain a COO.Kilmer performed an inspection of the property on March 10, 2014 and found 33 code violations.Plaintiff was afforded until April 30, 2014 to correct the code violations.

Plaintiff claims that even though the buyer still wished to purchase the property after the March 10, 2014 inspection report, the parties could not go through with the sale by the April 1, 2014 deadline without a COO.Ultimately, the sale fell through.By September 2014, plaintiff, after "great hardship and expense," fixed the code violations.On September 16, 2014, Kilmer re-inspected the property and issued a COO to plaintiff.On December 15, 2014, the property sold to a different buyer for $115,000.

On February 2, 2015, plaintiff attended the Borough's council meeting, where he spoke about Ordinance 2013–25.Plaintiff shared the hardship and expense he experienced because of the COO requirement.The Mayor of Palmyra, defendantKaren Scheffler, was in attendance at the meeting.

On February 3, 2015, plaintiff was interviewed by Todd McHale, a reporter for the Burlington County Times newspaper.Plaintiff was quoted as saying, "a lot of older people in this town are going to be shocked when they go to sell their homes," and that "there's going to be a lot of people who are going to be shocked ... of what they face when selling a home in the Borough.I was shocked."McHale reported that plaintiff believed that the Borough housing inspections "go too far."This article was published in the Times' on-line edition that day.

On February 4, 2015, the Time's on-line edition published an article concerning McHale's interview of Scheffler in her official capacity as the Borough's mayor in response to plaintiff's comments.Scheffler is reported as saying:

• "the house was in extreme disrepair—dangerous even—and had been vacant for some time"

• "properties of this sort negatively affect the entire neighborhood and bring down property values"

• "this property was a real eyesore for the neighborhood and a liability for Mr. Reed"

• "there were many deficient areas, including electrical and plumbing problems, numerous holes, leaks, lack of CO detectors, a lack of hot water, crumbled chimney cement, no working stove and exposed wiring."

(Compl. ¶¶ 62–66.)

Plaintiff advances seven counts against Kilmer, Scheffler, and the Borough.Plaintiff claims that Kilmer and the Borough violated his due process rights under the "takings clause" when they required him to comply with Ordinance 2013–25 in February 2014, even though the effective date of that Ordinance was on hold until April 1, 2014.Plaintiff also claims that Scheffler, in her individual and official capacities, violated his right to free speech under the U.S. and New Jersey constitutions.Plaintiff further claims that Scheffler and the Borough are liable for defamation.

Scheffler has moved to dismiss the claims plaintiff has asserted against her.Plaintiff has opposed Scheffler's motion.

DISCUSSION

A.Subject matter jurisdiction

Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983, as well as the New Jersey constitution and New Jersey state law.This Court has jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.

B.Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff.Evancho v. Fisher , 423 F.3d 347, 351(3d Cir.2005).It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief."Fed. R. Civ. P. 8(a)(2).Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim.Bogosian v. Gulf Oil Corp. , 561 F.2d 434, 446(3d Cir.1977).However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Baldwin Cnty. Welcome Ctr. v. Brown , 466 U.S. 147, 149–50 n.3, 104 S.Ct. 1723, 80 L.Ed.2d 196(1984)(quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks " ‘not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.’ "Bell Atlantic v. Twombly , 550 U.S. 544, 563 n.8, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007)(quotingScheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90(1974) );see alsoAshcroft v. Iqbal , 556 U.S. 662, 684, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)("Our decision in Twombly expounded the pleading standard for ‘all civil actions' ....");Fowler v. UPMC Shadyside , 578 F.3d 203, 210(3d Cir.2009)("Iqbal ... provides the final nail-in-the-coffin for the ‘no set of facts' standard that applied to federal complaints before Twombly .").

Following the Twombly /Iqbal standard, the Third Circuit has instructed a two-part analysis in reviewing a complaint under Rule 12(b)(6).First, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.Fowler , 578 F.3d at 210(citingIqbal , 129 S.Ct. at 1950 ).Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " ‘plausible claim for relief.’ "Id.(quotingIqbal , 129 S.Ct. at 1950 ).A complaint must do more than allege the plaintiff's entitlement to relief.Id.;see alsoPhillips v. Cnty. of Allegheny , 515 F.3d 224, 234(3d Cir.2008)(stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: ‘stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element.This ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element").A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss.

In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1429–30(3d Cir.1997).The defendant bears the burden of showing that no claim has been presented.Hedges v. U.S. , 404 F.3d 744, 750(3d Cir.2005)(citingKehr Packages, Inc. v. Fidelcor, Inc. , 926 F.2d 1406, 1409(3d Cir.1991) ).

A court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice.S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd. , 181 F.3d 410, 426(3d Cir.1999).A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document."Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196(3d Cir.1993).If any other matters outside the pleadings are presented to the court, and the court does not exclude those matters, a Rule 12(b)(6) motion will be treated as a summary judgment motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

C.Analysis

1.Plaintiff's free speech violation claims...