BROTMAN, District Judge.
Plaintiff Joseph Garlanger instituted this action against the Superintendent of
I. FACTUAL AND PROCEDURAL BACKGROUND
The following recitation of the relevant facts underlying Plaintiff's claims is drawn exclusively from Plaintiff's Amended Complaint. On August 4, 1999, New Jersey state police officers, Edward Verbeke and Sandor Lengyel, were dispatched to Tri-State Mulch, a business located in Hainesport, New Jersey, based on an allegedly "anonymous" and "unsubstantiated tip" that the business's owner, Joseph Garlanger, had been making threats of violence. (Compl. at ¶ 8.) Garlanger alleges that, "immediately" upon his return from making a delivery, Verbeke, Lengyel, and several unidentified officers grabbed him, pulled him from his truck, threw him to the ground, handcuffed him, placed their feet on his neck, and withdrew their service revolvers and pointed them directly at him. (Id. at ¶ 9.) Verbeke and Lengyel then allegedly proceeded to search his premises "without consent, a warrant or other legal basis." (Id.) According to Garlanger's complaint, the officers did not question him or "any of his known associates" or otherwise attempt to independently verify the information provided by the anonymous informant before taking action to subdue him and search his establishment. (Id. at ¶ 10.) Garlanger was then transported to the New Jersey State Police barracks in Bordentown, New Jersey, where he was allegedly "questioned against his will, harassed, yelled at, and berated." (Id. at ¶ 13.) He was ultimately charged with one count of making terroristic threats in violation of N.J.S.A. 2C:12-3 of the New Jersey Criminal Justice Code, (id. at ¶ 42)
On July 30, 2001, Garlganger instituted this action against the Superintendent of the New Jersey State Police and troopers
II. LEGAL STANDARD GOVERNING A MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." A court's inquiry into the legal sufficiency of a plaintiff's pleadings under this standard is necessarily very limited, as the issue to be decided "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [his] claims." Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1420 (3d Cir.1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The court must accept as true all of the well-pleaded, material allegations contained in the complaint and any reasonable inferences that can be drawn therefrom. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir.1998). Dismissal of claims under 12(b)(6) should be granted "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. In examining the legal sufficiency of a litigant's complaint under Rule 12(b)(6), a court may not, as a general matter, give consideration to materials beyond the allegations contained in the pleadings, although matters of public record and exhibits attached to, "explicitly
A. NEW JERSEY TORT CLAIMS ACT
Defendants' seek dismissal of Plaintiff's state law claims for unlawful force (Count I), wrongful arrest (Counts I and VII), false imprisonment (Count I), malicious prosecution (Counts I and VIII), interference with parental rights (Count I), and intentional infliction of emotional distress (Count IX) based on Plaintiff's failure to comply with the notice of claim provisions of the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:8-1, et. seq.
Consistent with the legislation's goal of restricting governmental liability in tort, the Act provides that, in order to maintain a tort claim against a public entity or public employee, a plaintiff must file a notice of claim with the appropriate public entity within 90 days of the accrual of a cause of action. See N.J.S.A. 59:8-8. A plaintiff who fails to file notice with the appropriate state agency within the 90-day period is "forever barred from recovering against [the] public entity or employee." Id. Further, while a plaintiff may be permitted to file a notice of claim after the 90-day period, provided he applies to the court for an extension within a year of the date when the claim accrued, see N.J.S.A. 59:8-9, "judicial discretion to extend the time for filing of the requisite notice does not survive the passage of one year following the accrual date of the claim." Hill v. Board of Educ. of Middletown Twp., 183 N.J.Super. 36, 39, 443 A.2d 225 (App.Div. 1982); see also Iaconianni v. New Jersey Turnpike Auth., 236 N.J.Super. 294, 298, 565 A.2d 1084 (App.Div.1989). The central purpose of these notice-of-claim provisions is two-fold: "(1) to expedite investigation with the hope of reaching nonjudicial settlement"; and (2) "to protect the public entity's access to current information about the incident giving rise to the claim." Greenway Development Co., Inc., 163 N.J. at 552, 750 A.2d 764 (internal quotations and citations omitted).
Plaintiff concedes that the state common law tort claims contained in Counts VII (false arrest), VIII (malicious prosecution), and IX (intentional infliction of emotional distress) of his Amended Complaint are subject to the TCA's notice requirements, see Epstein v. State, 311 N.J.Super. 350, 709 A.2d 1353 (App.Div.1998) (affirming the dismissal of malicious prosecution and infliction of emotional distress claims based on plaintiff's failure to demonstrate the "extraordinary circumstances" necessary to justify the filing of a late tort claims notice); Michaels v. State of New Jersey, 955 F.Supp. 315, 329 (D.N.J.1996) (applying TCA's notice provisions to malicious prosecution claim); Pisano v. City of Union City, 198 N.J.Super. 588, 590, 487 A.2d 1296 (1984) (observing that while the TCA "does not immunize law enforcement officials from charges of false arrest and false imprisonment ... claims asserting such wrongs must be presented to the [appropriate] public entities no later than the ninetieth day ... after the accrual of the cause of action"), and does not dispute that he has neither filed a proper notice of claim with the New Jersey State Police, nor requested an extension of the period in which to do so. Plaintiff does not, therefore, oppose dismissal of these claims. (Pl.'s Opp. Br. at 3, n. 3).
Plaintiff does, however, oppose the dismissal of his claims in Count I for unlawful force, wrongful arrest, false imprisonment, and unlawful interference with parental rights to the extent that such claims allege "various tortious violations" of rights protected under Art. I, para. 1 (due process) and 7 (right to be free from unreasonable searches and seizures) of the New Jersey Constitution. (Pl.'s Br. at 5). While the New Jersey Supreme Court has not had occasion to specifically address the applicability of the TCA's notice requirements to "constitutional torts" of this particular variety, Plaintiff's position finds support in Justice Handler's concurring opinion in Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652 (1988), and the Supreme Court's more recent decision in Greenway Development Co., Inc. v. Borough of Paramus, 163 N.J. 546, 750 A.2d 764 (2000). In Fuchilla, the Court considered the applicability of the TCA's notice provisions to discrimination claims brought pursuant to the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq. Fuchilla, a former employee of the University of Medicine and Dentistry of New Jersey instituted a sexual harassment suit against the university and its Board of Trustees under both the Civil Rights Act, 42 U.S.C. § 1983, and the New Jersey LAD. The Appellate Division reversed a ruling by the trial court dismissing Fuchilla's LAD claim based on her failure to satisfy the notice provisions of the TCA and the Supreme Court affirmed holding, based on a "reading of the history, purpose, and provisions of the [TCA and the LAD] ... that the legislature did not intend that claims of discrimination be subject to the notice requirements of the [Tort Claims Act]." Fuchilla, 109 N.J. at 336, 537 A.2d 652. In so holding, the Court overruled a decision by the Chancery Division, Lloyd v. Borough of Stone Harbor, 179 N.J.Super. 496, 512, 432 A.2d 572 (1981), in which that court had concluded that a sexual discrimination claim seeking "damages caused by a violation of constitutional rights" afforded by
In a concurring opinion, Justice Handler noted that the TCA, by its terms, is primarily concerned with civil actions seeking damages for "ordinary negligence" and other "tortious conduct involving fault in the sense of a want of reasonable care," Fuchilla, 109 N.J. at 339, 537 A.2d 652, and "disavows any remedial purpose to vindicate societal interests or to rectify public or governmental misconduct to protect any individual constitutional interest or civil right." Id. at 344, 537 A.2d 652. The enactment of the TCA, he recounted, was essentially a legislative response to the Court's abrogation of the State's sovereign immunity in Willis v. Department of Conservation and Econ. Dev., 55 N.J. 534, 264 A.2d 34 (1970). See id. at 334, 537 A.2d 652; see also Greenway Development Co., 163 N.J. at 556-57, 750 A.2d 764:
Fuchilla, 109 N.J. at 343, 537 A.2d 652 (internal citations omitted). In joining the majority's holding, Justice Handler emphasized that the fact that "none of the plethora of judicial decisions that form the matrix of the Tort Claims Act involved a violation of a civil right" demonstrates "[q]uite clearly [that] the Tort Claims Act was not needed to structure liability — or immunity — for such claims." Id.
In Greenway Development Co., Inc., the Supreme Court again considered the nature and character of the claims subject to the notice-of-claim provisions of the Tort Claims Act. 163 N.J. at 551, 750 A.2d 764. The case involved a claim for "inverse condemnation" brought by a landowner against the borough, mayor, and zoning officials seeking compensation for actions which allegedly amounted to a unconstitutional "taking" under both Article I, para. 20 of the New Jersey state constitution and the Fifth Amendment to the United States Constitution. Id. at 549-51, 553, 750 A.2d 764. The Court, affirming the decision of the Law Division and applying reasoning very similar to that employed in Justice Handler's concurring opinion in Fuchilla, rejected Defendants' argument that "an `injury' under the TCA includes harm to constitutional rights, such as inverse condemnation." Id. at 551-52, 750 A.2d 764; see also id. at 558, 750 A.2d 764 (observing that the "constitutional prohibition against unconstitutional takings is self-executing, in the sense that such claims arise independently of the TCA."). The Court observed, as had Justice Handler, that the TCA "disavows any remedial purpose to vindicate societal interests ... or to protect any individual constitutional interest or civil right." Id. at 557, 750 A.2d 764 (quoting Fuchilla, 109 N.J. at 344, 537 A.2d 652 (Handler, J., concurring)) (emphasis added). The Court further noted that the fact that all of the
The civil rights claims asserted in Count I of Plaintiff's Amended Complaint, like claims of gender discrimination and inverse condemnation, essentially seek compensation for violations of constitutionally-protected rights and interests which exist independent of the Tort Claims Act. Moreover, as Justice Handler's concurrence and the Court's decision in Greenway suggest, the fact that none of the cases cited by the Court in Willis, the impetus for the legislature's enactment of the Tort Claims Act, involved claims for anything more than ordinary negligence strongly suggests that the legislature never intended to subject constitutionally-based torts, such as civil rights claims and claims for inverse condemnation, to the notice-of-claim provisions of the TCA. Cf., Estate of McGrath v. North Jersey District Water Supply Commission, 224 N.J.Super. 563, 570, 540 A.2d 1350 (Law Div.1986) (noting that the "Tort Claims Act does not apply to several of [plaintiff's] causes of action, such as inverse condemnation and violation of civil rights."). Accordingly, to the extent that the claims contained in Count I of Plaintiff's Amended Complaint seek damages based on Defendants' alleged violations of civil rights protected by the New Jersey Constitution, the Court will deny that part of Defendants' motion which seeks to dismiss such claims based on Plaintiff's failure to comply with the notice-of-claim provisions of the New Jersey Tort Claims Act.
B. FEDERAL CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. §§ 1985 AND 1986
Defendants' contend that the allegations in Plaintiff's Amended Complaint fail to state a claim under 42 U.S.C. §§ 1985 (Count V) and 1986 (Count III). Section 1985 does not itself create any substantive rights, but rather "creates a cause of action under rather limited circumstances against both private and state actors," Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir.2001), for conspiring to violate federal rights and privileges protected by the Constitution and federal statutes. White v. Williams, 179 F.Supp.2d 405, 421 (D.N.J.2002) (Pisano, J.) (citing Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979)). For a Section 1985 claim to survive a motion to dismiss, a plaintiff must allege: "(1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997) (citing Griffin v. Breckenridge, 403 U.S. 88, 91, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Mere allegations of conspiracy which are lacking in any factual specificity
Section 1986 "is a companion to section 1985(3) and provides a cause of action against persons who, knowing that a violation of section 1985(3) is about to be committed and possessing the power to prevent its occurrence, fail to take action to frustrate its execution." White, 179 F.Supp.2d at 421 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981)). "[T]ransgressions of § 1986 by definition depend on a preexisting violation of § 1985." Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.1994). The allegations in Plaintiff's complaint which, as the Court has noted, fail to set forth a cause of action under 1985, therefore, necessarily also fail to state a valid claim under Section 1986. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir.1988) ("A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985."). Accordingly, the Court will grant Defendants' motion to dismiss Plaintiff's federal civil rights claims under 42 U.S.C. §§ 1985 (Count V) and 1986 (Count III).
C. QUALIFIED IMMUNITY FROM LIABILITY UNDER 42 U.S.C. § 1983
Defendants also move to dismiss Plaintiff's Section 1983 claims for unlawful arrest (Count V), false imprisonment (Count II), and malicious prosecution (Count X) on the grounds of qualified immunity.
In determining whether a police officer is entitled to qualified immunity, both the existence of a clearly established right and the objective reasonableness of the officer's actions are questions of law for the Court to decide, see Luthe v. City of Cape May, 49 F.Supp.2d 380, 389 (D.N.J. 1999) (Orlofsky, J.) (citing Sharrar, 128 F.3d at 828), but any disputed issues of historical fact relevant to the court's determination must be submitted to a jury. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir.2002); see also, Sharrar, 128 F.3d at 828. Because the qualified immunity doctrine provides public officials with "immunity from suit and not simply trial," a court's determination regarding the availability of qualified immunity should generally be resolved "at the earliest possible stage of the litigation." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir.1995) (citations omitted); see also Curley, 298 F.3d at 277.
When a government official raises qualified immunity as a defense to an action under section 1983, the court must, a threshold matter, first determine "whether the plaintiff has alleged a deprivation of a constitutional right at all." Wilson, 526 U.S. at 609, 119 S.Ct. 1692 (1999) (quoting Conn. v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)). Plaintiff asserts three separate section 1983 claims for violations of the Fourth Amendment: (1) wrongful arrest; (2) false imprisonment; and (3) malicious prosecution. As a key element of each of these claims, Plaintiff must establish that Defendants acted without probable cause. See Luthe, 49 F.Supp.2d at 388 (citing Sharrar, 128 F.3d at 817-18; Groman v. Township of Manalapan, 47 F.3d 628, 636
Probable cause is "defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Sharrar, 128 F.3d at 817-818 (citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). "This standard is meant to safeguard citizens from rash and unreasonable interferences with privacy and to provide leeway for enforcing the law in the community's protection." Sharrar, 128 F.3d at 817-18 (citations omitted).
In his Amended Complaint, Plaintiff alleges that he was arrested and detained by Defendants based solely on an "anonymous" and "unsubstantiated" tip that he had been making threats of violence. (Compl. at ¶ 8). He further alleges that Defendants did not question him or otherwise make any attempt to independently verify the reliability of the information obtained from the "anonymous" informant before acting to subdue him and place him under arrest. (Id. at ¶ 10). The Supreme Court has recognized that a tip from an anonymous informant may, under certain circumstances, provide probable cause to arrest and detain the target of the tip. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Both the Supreme Court and the Third Circuit have, however, emphasized the importance of independent police work to corroborate the information contained in a tip communicated by an informant whose identity is unknown. See Gates, 462 U.S. at 241, 103 S.Ct. 2317; see also U.S. v. Nelson, 284 F.3d 472, 480 (3d Cir.2002). An anonymous tip which "provides virtually nothing from which one might conclude that [the informant] is either honest or his information reliable" and which fails to supply any information providing an independent basis for suspecting criminal activity will, by itself, not be sufficient to establish probable cause to believe that a criminal offense has been or is being committed by the target of the tip. See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Nelson, 284 F.3d at 479-80; see also, Matasavage v. Corby, 2000 WL 1839138 at *7 (M.D.Pa. October 13, 2000) (observing that because "unsubstantiated rumors alone cannot be the basis for probable cause ... [i]f Defendant based his arrest solely upon the anonymous informants, Defendant would not have probable cause"). Plaintiff's allegations are therefore sufficient, on their face, to support a claim for unlawful arrest and false imprisonment under section 1983.
Plaintiff's complaint further alleges that Defendants proceeded, based on
Having concluded that Plaintiff's Amended Complaint sufficiently alleges violations of Plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures, the Court must next determine "whether [D]efendant[s][are] entitled to qualified immunity on the grounds that [their] conduct did `not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Larsen, 154 F.3d at 86-87 (citing Harlow, 457 U.S. at 818, 102 S.Ct. 2727) (emphasis added). In cases, such as that currently before the Court, involving claims for unlawful arrest, false imprisonment, and malicious prosecution, the availability of qualified immunity "turns on whether the police officers reasonably but mistakenly concluded that probable cause existed to arrest, detain and initiate criminal prosecution." Palma, 53 F.Supp.2d at 769 (citing Orsatti, 71 F.3d at 483) (additional citations omitted). Because Defendants have raised the defense of qualified immunity in the context of a Rule 12(b)(6) motion to dismiss, the only facts upon which the Court can properly rely in determining the "objective reasonableness" of Defendants' belief that probable cause existed to arrest, detain, and prosecute Plaintiff are those allegations of fact which are contained in the Amended Complaint. See Palma, 53 F.Supp.2d at 743. Moreover, the issue to be decided by the Court at this stage of the litigation is limited to whether, accepting Plaintiff's allegations as true and affording him the benefit of all reasonable inferences that can be drawn therefrom, "there is any set of facts [he] can prove that would support a denial of immunity." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.1992) (citing Robb v. Philadelphia, 733 F.2d 286 (3d Cir.1984)). Applying this standard and drawing all reasonable inferences in Plaintiff's favor, the Court is unable to conclude that the facts as alleged in the Amended Complaint are insufficient to support a finding that no reasonable police officer could have believed that probable cause existed to arrest, detain, and prosecute Plaintiff for the felony offense of making terroristic threats. The Court must, therefore, deny Defendants' motion to dismiss on the basis of qualified immunity.
III. DEFENDANTS' MOTION TO STRIKE PURSUANT TO FED. R. CIV. P. 12(f)
Defendants' move, pursuant to Fed.R.Civ.P. 12(f), to strike Counts I, X, and XI on the basis that "exact same or similar claims" are asserted in Count II of Plaintiff's Amended Complaint. The purpose of a motion to strike is to simplify the pleadings and save time and expense by excising from a plaintiff's complaint "any redundant, immaterial, impertinent, or scandalous matter" which will not have any possible bearing on the outcome of the litigation. See Bristol-Myers Squibb Company v. Ivax Corporation, 77 F.Supp.2d 606, 619 (D.N.J.2000) (Walls, J.) (citing Glenside West Corp. v. Exxon Co., U.S.A., 761 F.Supp. 1100, 1114-15 (D.N.J. 1991)). Because of the drastic nature of the remedy, however, motions to strike are usually "viewed with disfavor" and will generally "be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues." Tonka Corp. v. Rose Art Industries, Inc., 836 F.Supp. 200, 217 (D.N.J. 1993).
Count II of Plaintiff's Amended Complaint asserts claims for various violations of Plaintiff's federal civil rights under 42 U.S.C. § 1983. (Compl. at ¶ 19). Counts X briefly expands on these averments and asserts an additional section 1983 claim for malicious prosecution. Counts V and XI, which assert claims under section 1983 for false arrest and the alleged "negligent screening, hiring, training, supervising, disciplining and retention of dangerous and discriminatory police officers," merely restate claims contained in Count I and are, therefore, unnecessarily redundant. Accordingly, the Court reads these counts in tandem as asserting a set of alleged violations of Plaintiff's federal civil rights under section 1983. In the interests of streamlining the pleadings and removing this redundant clutter, the factual allegations and claims asserted in Counts V, X and XI will be stricken and merged with Count II of Plaintiff's Amended Complaint.
Defendant contends that the state constitutional claims asserted in Count I are similarly subsumed within Count II. The Court disagrees. Claims under section 1983, which creates a statutory vehicle for remedying violations of rights created by federal law, and the provisions of the New Jersey state constitution represent distinct and independent causes of action. See, e.g., Potts v. City of Philadelphia, 2002 WL 2003056 (E.D.Pa. August 29, 2002). The Court will therefore deny Defendants' motion to strike the state law claims contained in Count I of Plaintiff's Amended Complaint.
IV. DEFENDANT CARSON DUNBAR'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 4(m)
Defendant Carson Dunbar contends that Count Four of Plaintiff's Amended Complaint which seeks prospective injunctive relief against him in his capacity as Superintendent of the New Jersey State Police should be dismissed because he has never been properly served
The Third Circuit has construed Rule 4(m) as requiring a court to extend time for service where the plaintiff demonstrates good cause. See McCurdy v. Amer. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir.1998); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). For purposes of Rule 4(m), "good cause" has been defined as being tantamount to "excusable neglect," under Fed. R. Civ.P. 6(b)(2), which requires "a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules." MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995). Because the "primary focus" in determining whether good cause exists "is on the plaintiff's reasons for not complying with the time limit in the first place," the "[a]bsence of prejudice alone can never constitute good cause to excuse late service [of the complaint on the defendant.]." Id. Absent a showing of good cause, the decision whether to extend the time for service or to dismiss the complaint falls within the court's sound discretion. Id.
Plaintiff's original complaint in this matter was filed on July 30, 2001 and asserted, inter alia, a claim under section 1983 seeking injunctive relief against Defendant Carson Dunbar in his capacity as Superintendent of the New Jersey State Police.
For the reasons stated above, Defendants' motions will be granted in part and denied in part. Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) will be granted as to Counts III, VII, VIII, and IX, and Plaintiff's claim under 42 U.S.C. § 1985 in Count V, and denied with respect to Counts I, II, and X, and Plaintiff's claim for false arrest under 42 U.S.C. § 1983 in Count V. Defendants' motion to strike will be denied with respect to Count I. The Court will, however, strike Counts V, X, and XI, and merge the claims and allegations contained therein with Count II. Defendant Carson Dunbar's motion to dismiss pursuant to Fed.R.Civ.P. 4(m) will be granted and he will be dismissed as a party to this action. The Court will enter an appropriate order.
THIS MATTER having come before the Court on Defendants' motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and to strike pursuant to Fed.R.Civ.P. 12(f) and Defendant Carson Dunbar's motion to dismiss pursuant to Fed.R.Civ.P. 4(m);
The Court having considered the submissions of the parties; and
For the reasons set forth in the Court's opinion of this date;