United States District Court, N.D. New York
JOSEPH DiBLANCA and AUTO'S BY JOSEPH INC. d/b/a JOEY'S OF MILTON, Plaintiffs,
TOWN OF MARLBOROUGH, THE TOWN OF MARLBOROUGH POLICE DEPARTMENT, THE TOWN OF MARLBOROUGH BUILDING DEPARTMENT, POLICE CHIEF GERALD COCOZZA, SGT. JUSTIN PASCALE, POLICE OFFICER FREDERICK EBERHARD, THOMAS CORCORAN, ABSOLUTELY AUTOMOTIVE INC., ABSOLUTELY AUTO BODY, INC., and TOWN LINE AUTO CENTER, Defendants.
DAVID A. LACKOWITZ, ESQ., ROBERT S. WOLF, ESQ., MOSES & SINGER, LLP, New York, New York, Attorneys for Plaintiffs.
CARL S. SANDEL, ESQ., MORRIS DUFFY ALONSO & FALEY, New York, New York, Attorneys for Defendants.
ROBERT N. ISSEKS, ESQ., ISSEKS AND SMITH, Middletown, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On December 23, 2013, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants retaliated against them for exercising their First Amendment rights. See Dkt. No. 1 at ¶ 51. The complaint also contains several state-law causes of action, including unjust enrichment, harassment, tortious interference with prospective economic advantage, and prima facie tort. Plaintiffs seek a permanent injunction, as well as compensatory damages, punitive damages, and attorneys' fees. See id. at ¶¶ 56-81.
Currently before the Court is Defendants' motion to dismiss Plaintiffs' complaint for failure to state a claim upon which relief can be granted.
Plaintiff Joseph DiBlanca is the principal of Auto's by Joseph, a towing company that operates in the Town of Marlborough (the "Town"). Auto's by Joseph has participated in the Town's statutory rotation for vehicle removal for approximately eight years. See Dkt. No. 1 at ¶ 1. The statutory rotation is intended to ensure that each licensed towing company within the Town receives an equal number of calls to remove vehicles. See id. The Town Police Department monitors the roster and is responsible for contacting whichever company is next in line for a vehicle removal. See id.
Around August of 2013, Plaintiff DiBlanca discovered that Police Chief Cocozza and Sgt. Pascale had obtained ownership interests in Auto's by Joseph's primary competitors, Absolutely Automotive Inc. and its affiliate Absolutely Auto Body, Inc. (collectively "AA"), and Town Line Auto Center ("TLAC"), which are both in the Town's towing roster. See id. at ¶ 2. Plaintiffs allege that as a result, Auto's by Joseph was frequently being skipped in the tow rotation and its calls were being diverted to AA and/or TLAC. See id. Plaintiffs further allege that Defendant Cocozza and Pascale's ownership interests in AA and TLAC violate the Code of the Town of Marlborough (the "Code"), which provides that "[n]o Town officer or employee shall have any interest, or engage in any business or transaction... which is in conflict with, or might reasonably tend to conflict with, the proper discharge of his or her duties in the public interest." See id. at ¶¶ 2, 25.
In response to being left out of the towing rotation, Plaintiffs claim that they began to exercise their First Amendment rights by complaining to the Town and the Town's Police Department about Defendants' alleged conflicts of interest and police misconduct. See id. at ¶ 3; Dkt. No. 11 at 6. According to Plaintiffs, instead of rectifying the situation by refraining from further misconduct, the Town and Defendant police officers launched an attack on Plaintiffs to ultimately drive them out of business. See Dkt. No. 1 at ¶ 3.
On August 4, 2013, Plaintiff DiBlanca heard a call come in for a vehicle removal that belonged to him by virtue of the rotation system. See id. at ¶ 38. Auto's by Joseph was not called to the scene, so Plaintiff DiBlanca drove to the scene and began to take photographs. See id. At the scene, Plaintiff DiBlanca was approached by Defendant Officer Eberhard, who allegedly tried to search Plaintiff DiBlanca's vehicle without probable cause. See id. Defendant Eberhard then told Plaintiff DiBlanca that "the tow law means nothing to me, " and that it was Eberhard's goal to "put you out of service." See id.
Similarly, on August 29, 2013, Plaintiff DiBlanca overheard that a vehicle removal was needed and it was his turn again according to the rotation system. See id. at ¶ 39. The vehicle that needed to be towed was a Dodge 2500 pickup truck that contained a trailer with a Bobcat loader on it. See id. According to Plaintiffs, Defendant Eberhard requested a heavy wrecker, which only AA possessed, to remove the vehicle, even though Plaintiff DiBlanca's truck was equipped to handle the removal of this type of vehicle. See id. The dispatcher rejected Defendant Eberhard's request and allowed Plaintiffs to tow the vehicle, but Plaintiff DiBlanca claims that Defendant Eberhard was hostile and told the other police officers to not abide by the towing rotation when Plaintiffs were next in line to be called. See id. at ¶¶ 39-40.
On November 27, 2013, Defendants Chief Cocozza and Sgt. Pascale were monitoring two checkpoints where numerous vehicles were towed and impounded. See id. at ¶ 42. Instead of using the radio to contact the tow trucks on the roster, Plaintiffs claim that the officers used their cell phones and called AA several times that night without once calling Auto's by Joseph. See id. Again, on November 30, Auto's by Joseph originally received a call from the police dispatcher of a three-car collision that needed a tow, but Plaintiff DiBlanca was subsequently put on hold and eventually told that he was not needed. See id. at 43. Plaintiff DiBlanca's sons drove to the scene and noticed that AA had been called and that the officers on the scene were Defendants Chief Cocozza and Sgt. Pascale. See id. at ¶ 43.
Furthermore, Plaintiffs claim that the Town's Police Department also enlisted Defendant Corcoran, the Building Inspector of the Town's Building Department, in their campaign against Plaintiffs. See id. at ¶ 45. According to Plaintiffs, Defendant Corcoran acknowledged that he was on a mission to discredit and harass Plaintiff DiBlanca. Plaintiffs claim that Defendant Corcoran assisted one of the principals of AA and TLAC to lodge a formal complaint regarding real property that Plaintiff DiBlanca owned in the Town of Lloyd. See id. at ¶ 46. Plaintiffs also claim that Defendant Corcoran has used threats and intimidation in an attempt to coerce Plaintiff DiBlanca to not disclose the Police Department's wrongful conduct. See id. at ¶ 48.
Plaintiffs assert that (1) the Town, the Building and Police Departments, the individual officers, and Thomas Corcoran retaliated against them for exercising their First Amendment rights; (2) AA, TLAC, and the individual officers were unjustly enriched; (3) all Defendants committed harassment; (4) the Police Department, the individual officers, AA, and TLAC committed tortious interference with prospective economic advantage; (5) all Defendants are liable for prima facie tort; and (6) they are entitled to injunctive relief against the Town, the Police and Building Departments, the individual officers, and Thomas Corcoran. See id. at ¶¶ 56-81.
In their motion to dismiss, Defendants argue that (1) Plaintiffs' First Amendment retaliation claim should be dismissed because Plaintiffs' speech is not protected; (2) the individual officers are entitled to qualified immunity; (3) the claim against the Town should be dismissed because Plaintiffs cannot establish municipal liability; (4) the Police and Building Departments are not proper Defendants to this lawsuit; (5) Plaintiffs' unjust enrichment claim should be dismissed because Plaintiffs have not conferred a benefit on Defendants; (6) Plaintiffs' harassment claim should be dismissed because harassment is not a cognizable common law claim; and (7) Plaintiffs' tort claims against the individual officers should be dismissed because they are highly speculative and not plausible. See Dkt. No. 9-1.
A. Standard of ...