DEBEVOISE, Senior District Judge
Plaintiffs Lad J. Bell and Michael A. DePompeo filed a complaint on November 29, 2000, against Paul Ostrow, William Norton, John Bauer, Joseph Palazzola, Robert O'Neill, Gary Saage, and the Township of Teaneck ("defendants"), alleging violations of 42 U.S.C. § 1983, 1985, the First, Fourth and Fourteenth Amendments to the United States Constitution, the Conscientious Employee Protection Act ("CEPA") and for intentional and negligent infliction of emotional distress. Specifically, plaintiffs allege that they were retaliated against for engaging in speech and union activity that exposed violations of state law and for their involvement in the federal case of Brennan v. Norton, 96-4061. Defendants moved for dismissal of the complaint, arguing that: (1) the causes of action alleged are time barred, (2) the complaint fails to state a cause of action, (3) the allegations are conclusory, vague and confusing, and (4) the complaint does not comply with Federal Rule of Civil Procedure 8. Plaintiffs did not oppose defendants' motion to dismiss, but rather filed an amended complaint. Thereafter, defendants supplemented their motion to dismiss, directing it to the amended complaint. Again plaintiffs did not seek to defend their pleading with written submissions and instead advanced their contentions at oral argument on the motion. The amended complaint has been carefully reviewed and it has been determined that many of defendants' arguments in support of their motion to dismiss the original complaint also apply to the amended complaint. Therefore, for the reasons set forth herein, defendants' motion will be granted as to the original and amended complaints.
The amended complaint added a civil RICO count. Plaintiffs were directed to comply with Appendix O of the Local Rules within thirty days of the March 26 hearing on defendants' motion to dismiss or to withdraw the RICO count within two weeks of the hearing. As such, this opinion does not address the RICO count.
FACTS
For purposes of this motion to dismiss, all allegations set forth in the amended complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiffs' favor. See Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). Plaintiffs are employed as firefighters by the Teaneck Fire Department — Bell since 1987, DePompeo since 1980. (Am. Compl. ¶¶ 20, 120.) The Teaneck Fire Department, along with defendants Norton, Bauer, Palazzola, O'Neil, Saage, and the Township of Teaneck, were found by a jury to have retaliated against firefighter William J. Brennan. (Am. Compl. ¶ 17.) Plaintiffs are friends of Brennan and supported him in his claims against defendants. (Am. Compl. ¶ 19.)
Defendants moved to set aside the verdict. The motion was denied as to the Township and defendant Saage (but the punitive damages against Saage were vacated). The motion was granted with respect to the remaining defendants because there was no evidence that Brennan's exercise of his free speech rights was a substantial or motivating factor in any of the actions taken against him by the firefighter defendants.
A. Bell's Actions
In August 1993, Bell supported Brennan in his bid for secretary of Fireman's Mutual Benefit Association Local 42. (Am. Compl. ¶ 22.) Brennan was running against Michael O'Neill, brother of defendant Robert O'Neill. (Am. Compl. ¶ 22.) In April 1995, defendant Ostrow told Bell "not to get too heavily involved" with Brennan. (Am. Compl. ¶ 28.) In early 1996, Bell was repeatedly advised by a lieutenant, at the direction of defendant Norton, to distance himself from Brennan. (Am. Compl. ¶¶ 34-35.) In April 1997, Bell testified on behalf of Brennan in Fairview Municipal Court. (Am. Compl. ¶ 42.) Later that month, a captain advised Bell: "Do yourself a favor and stay away from Brennan. He is only going to bring you down with him." (Am. Compl. ¶ 44.) In October 1997, Bell gave a deposition in Brennan's federal case. His testimony was favorable to Brennan. (Am. Compl. ¶ 45.) In August 1998, Bell and other firefighters were subpoenaed to testify on behalf of Brennan at the Office of Administrative Law. (Am. Compl. ¶ 59.) In September 1998, Bell signed an affidavit in support of Brennan for Brennan's federal case, Brennan v. Norton, 96-4061. (Am. Compl. ¶ 64.) In October 2000, Bell was subpoenaed to testify on behalf of Brennan. (Am. Compl. ¶ 107.)
In July 1994, before the Teaneck Mayor and Council, Bell spoke out against fire house closings. (Am. Compl. ¶ 23.) In February 1995, at a Council meeting, Bell spoke out against removing firefighters injured in the line of duty from the payroll. (Am. Compl. ¶ 24.)
In January 1996, as a member of the safety committee, Bell reported various department safety violations. (Am. Compl. ¶ 36.) In December 1997, Bell informed a council member that there were no garbage bags in the fire station. (Am. Compl. ¶ 46.) Defendant Bauer told Bell that he would be brought up on departmental charges for violation of chain of command if he ever spoke to a council member again. (Am. Compl. ¶ 48.)
In December 1997, plaintiff was injured while on a fire call. (Am. Compl. ¶ 50.) His doctor instructed him not to return to work. (Am. Compl. ¶ 51.) Thereafter, Bell received conflicting instructions from various defendants regarding whether he should return to work. (Am. Compl. ¶¶ 52-53.)
In August 1999, Bell appeared before the Council and spoke out against safety hazards within the fire department. (Compl. ¶ 92.) In August 2000, Bell spoke with a reporter from the Bergen Record regarding Teaneck's failure to conduct life hazard inspections properly, resulting in a series of articles published in that newspaper. (Am. Compl. ¶¶ 115-116.) Plaintiff asserts that he was retaliated against for that action, but he does not specify how. (Am. Compl. ¶ 117.)
B. Alleged Retaliation Against Bell
Bell alleges that he was harassed and received disparate treatment as a result of his friendship with and support of Brennan and because of his speaking out against safety violations and fire house closings. Bell asserts that in October 1995 he was not permitted to attend a training class but that other fire fighters were permitted to attend. (Am. Compl. ¶ 33.) In January 1996, Bell was involuntarily assigned to another fire station. (Am. Compl. ¶ 37.) In November 1996, Bell was promoted and assigned to the Fire Prevention Bureau. (Am. Compl. ¶ 38.) Bell asserts that he should not have been involuntarily assigned to that bureau and that defendant Palazzola acknowledged that the assignment was not desirable. (Am. Compl. ¶¶ 38-39.)
Bell asserts that although other firefighters were paid by the Fire Department for their August 1998 court appearances, Bell was not paid until he filed a grievance. (Am. Compl. ¶¶ 61-62.) Bell asserts that he was not compensated for his time spent testifying for Brennan in October 2000. (Am. Compl. ¶ 107.) The refusal to pay Bell was in response to Bell's assisting Brennan in his federal case. (Am. Compl. ¶ 63.) Bell claims that because he assisted Brennan in his law suit, defendant Bauer ordered that early morning phone calls be made to the station where Bell and Brennan were sleeping. (Am. Compl. ¶ 65.) Bell claims that, because of his association with Brennan, departmental charges were brought against him for placing a rag in the fire station telephone bell. (Am. Compl. ¶¶ 67-72.)
In November 1998, Bell took sick leave, sought psychiatric treatment, and was diagnosed with post-traumatic stress disorder and employment-related stress. (Am. Compl. ¶ 75.) On November 30, 1998, defendant Bauer called Bell and demanded, in contravention of the FMBA contract, that Bell provide a note indicating his inability to work and that he do so immediately (rather than upon his return to work, as provided by the contract). (Am. Compl. ¶¶ 76-79.) While Bell was out on sick- leave, he was transferred to the Fire Prevention Unit so that he would be deprived of sick-days and holidays. (Am. Compl. ¶¶ 83- 85.)
In March 1999, Bell was deprived of overtime pay due to him. (Am. Compl. ¶ 89.) In August and September 1999, while on sick leave after being injured at a house fire, Bell was required to report to work weekly to advise defendant Norton of his status. (Am. Compl. ¶¶ 94-95.) No other firefighter was required to do that. (Am. Compl. ¶ 98.)
Bell asserts that in October 2000, in retaliation for his testimony in support of Brennan, he was advised that he would be required to forfeit five tours of overtime. (Am. Compl. ¶ 104.) Bell claims that he was disciplined for using a department vehicle to pick up a pizza in retaliation for his support of Brennan. (Am. Compl. ¶¶ 108-110.) Bell asserts that defendants conspired to unlawfully promote officers from an expired list in an effort to deprive Bell of a promotion. (Am. Compl. ¶¶ 112- 14.)
C. DePompeo's Actions
DePompeo was a long-time friend to Brennan and Bell. (Am. Compl. ¶ 121.) DePompeo alleges that he has reported an asbestos hazard at a fire station, filed grievances and complaints with the appropriate agencies and departments, filed criminal charges against defendant Saage, and has testified against defendants. (Am. Compl. ¶ 122.) DePompeo alleges that he has been retaliated against because of this "whistle blowing activity" and because of his association with Brennan and Bell. (Am. Compl. ¶ 123.)
D. Alleged Retaliation Against DePompeo
DePompeo was denied a request for leave with substitute, even though that request had been granted to other firefighters. (Am. Compl. ¶ 124.) Previously authorized vacation days were revoked. (Am. Compl. ¶ 125.) Brennan and DePompeo were reassigned after reporting the asbestos hazard in February 1996. (Am. Compl. ¶¶ 127-129.)
In January 1997, two months after being promoted to the position of Lieutenant, DePompeo received an unsatisfactory progress report. (Am. Compl. ¶¶ 130-132.) Thereafter, he was demoted. (Am. Compl. ¶ 133.) After his demotion, DePompeo was restored to the promotion list, where as a veteran ranked first on the list DePompeo was in line for the next available promotion. (Am. Compl. ¶ 135.) At a March 1997 meeting with defendant Norton, DePompeo was told that he would be removed from the promotion list unless he agreed to waive his veteran rights for one year. (Am. Compl. ¶ 136.) In spite of specific instruction to defendant Saage from the New Jersey Department of Personnel, DePompeo did not receive the next available promotion. (Am. Compl. ¶¶ 139-40.) In May 1997, in retaliation for DePompeo accusing defendant Saage of official misconduct, Saage requested that DePompeo be removed from the promotion list. (Am. Compl. ¶¶ 142-43.)
Plaintiffs contend that in November 2000, defendants "advanced a scheme to promote officers from an expired list" in order to deprive DePompeo of a promotion. (Am. Compl. ¶¶ 146- 49.)
STANDARD OF REVIEW
A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. See Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted."Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). As stated above, plaintiff has filed an amended complaint.
DISCUSSION
1. Failure to Plead a Valid § 1983 Claim.
A plaintiff in a § 1983 action must show that the conduct complained of was committed by a person acting under color of state law and that the conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution. See Parratt v. Taylor, 451 U.S. 527, 535 (1981).
A. Failure to Plead a First Amendment Violation.
A plaintiff alleging retaliation in violation of the First Amendment under § 1983 must establish that (1) the activity in question was protected and that (2) the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997). A defendant may defeat a plaintiff's claim by establishing that the same action would have been taken even in the absence of the protected conduct. Id.
Determining whether a plaintiff was engaged in a protected activity is a matter of law to be determined by the court. Id. To qualify as a protected activity, plaintiff must establish that his speech was on a matter of public concern and that the public interest favoring that expression would not be outweighed by any injury to the interest of the state as an employer in promoting efficiency of public services. Id. Speech will be considered to touch upon a matter of public concern if it can be considered as relating to any matter of political, social, or other concern to the community. Id. at 886.
When determining whether a matter is one of public concern, courts consider whether the employee spoke on public matters as a citizen, or whether he spoke out of personal interest as an employee. Connick v. Myers, 461 U.S. 138, 147 (1983). "When employee expression cannot be fairly considered as relating to a matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. at 146.
Reviewing the allegations raised by plaintiffs in this case, Bell and DePompeo allegedly took the following actions:
1. Plaintiffs are friends of Brennan and supported him in his claims against defendants by, among other things, providing testimony and affidavits.
2. Bell supported Brennan in his bid for secretary of Fireman's Mutual Benefit Association Local 42.
Many of the actions alleged in the complaint took place prior to November 29, 1998, and therefore are barred by the applicable statute of limitations, as discussed infra .
3. Bell spoke out against fire house closings.
4. Bell spoke out against removing firefighters injured in the line of duty from the payroll.
5. Bell and DePompeo reported various health and safety violations at the fire station.
6. DePompeo filed unspecified grievances and complaints.
7. DePompeo filed criminal charges against defendant Saage.
Of these allegations, only the third can fairly be considered as a matter of public concern. The remaining items are matters of personal interest that, while perhaps important to fire fighters and their union, are not issues that affect the general public. For example, the fact that Bell supported Brennan in a union election is not a matter of public concern. Additionally, the fact that plaintiffs were friends of Brennan and supported him in his lawsuit against defendants is not a matter of public concern.
Moreover, many of the remaining actions related to departmental issues that were of personal concern to plaintiffs were of minimal import to other firefighters. For example, Bell had a personal stake in the removal of injured firefighters from the payroll because at the time that he spoke out against that practice he was an injured firefighter.
The single matter that can be considered as potentially one of public concern is the closing of fire houses. According to the amended complaint, there is no indication that DePompeo spoke out against fire house closings. Bell spoke out against fire house closings in July 1994. (Am. Compl. ¶ 23.)
Not only is there no allegation that Bell's speaking out "was a substantial or motivating factor" in any alleged retaliatory action, see Green, 105 F.3d at 885, (the allegation of retaliation closest in time to Bell's speaking out against fire house closings was in October 1995 when Bell was not permitted to attend a training class that other fire fighters were permitted to attend (Am. Compl. ¶ 33)), even if there were such an allegation the applicable statute of limitations would bar the claim. A two-year statute of limitations applies to claims brought pursuant to 42 U.S.C. § 1983. See Plain v. Flicker, 645 F. Supp. 898, 901 (D.N.J. 1986). The original complaint in this matter was filed on November 29, 2000. Therefore, all acts allegedly committed by defendant that occurred prior to November 29, 1998, are barred by the statute of limitations.
In spite of an assertion that defendants' retaliation began as early as 1994 and continues through the present, it has already been concluded that the only issue of public concern about which a plaintiff spoke was Bell's speaking against fire house closings in July 1994.
B. Failure to Plead a Fourth Amendment Violation.
Plaintiffs amended complaint does not allege any facts supporting a claim that defendants violated plaintiffs' Fourth Amendment rights.
C. The Fourteenth Amendment.
The allegation that plaintiffs were denied property rights under the Fourteenth Amendment that are not barred by the statute of limitations are as follows:
• deprivation of sick-days and holidays (Am. Compl. ¶¶ 83- 85)
• deprivation of overtime pay (Am. Compl. ¶¶ 89, 104)
• deprivation of promotions by using an expired promotion list. (Am. Compl. ¶¶ 112-14, 146-49.)
The Due Process Clause of the Fourteenth Amendment protects against deprivations of life, liberty, or property without due process of law. U.S. Const., Amend. XIV, § 1. The Supreme Court has recognized that "there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either `liberty' or `property' as meant in the Due Process Clause." Paul v. Davis, 424 U.S. 693, 710 (1976). Such interests attain their constitutional status "by virtue of the fact that they have been initially recognized and protected by state law" or other independent sources. Id. at 710-11 and n. 5; See also Richardson v. Felix, 856 F.2d 505, 508 (3d Cir. 1988) ("The property interests that are protected by the due process clause of the Fourteenth Amendment are created and defined by existing rules and understandings that stem from an independent source such as state law,"quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In order to prevail on a due process claim with respect to a job or a job benefit, an employee must first establish a property interest in the employment or the benefit. See Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1318 (3d Cir. 1997). To have a property interest in a job or a job benefit, an employee must have a legitimate claim of entitlement, not simply a unilateral expectation. Id.; see also Morgan v. Union Cty., 268 N.J. Super. 337, 355 (App.Div. 1993) ("a public employee with no statutory or contractual entitlement to his job has no property interest subject to the protection of the Fourteenth Amendment").
Plaintiffs stated claims of entitlement to a plethora of benefits and privileges such as the right to use a fire department truck to get pizza, sick days, holidays, overtime pay, promotions and transfers. However, they themselves have also alleged the procedures in place and availed of by themselves to address these alleged grievances, e.g., grievance procedures under the collective bargaining agreement (Am. Compl. ¶¶ 32, 43, 62, 105); hearings on charges (Am. Compl. ¶¶ 69, 91, 92); arbitration (Am. Compl. ¶¶ 23, 111); filing a complaint with the Merit System Board of the New Jersey Department of Labor (Am. Compl. ¶ 122) and a hearing before an administrative law judge (Am. Compl. ¶ 145). Although not set forth in full detail in the amended complaint, the court takes note of the elaborate procedures established by the New Jersey statutes to ensure that the employment rights of firefighters and other public employees are fully protected.
Plaintiffs, under the guise of the Fourteenth Amendment, seek in this case to substitute this court for the well- constructed hearing mechanisms established under collective bargaining agreements and New Jersey law to govern all manner of employment disputes. The disputes in this case range from serious promotion questions to the most petty of concerns, e.g., the pizza delivery. Cf. Riley v. Simmons, 45 F.3d 764 (3d Cir. 1995) (discussing (but not applying) Burford v. Sun Oil Co., 319 U.S. 315 (1943)). Plaintiffs simply have not alleged claims that fall within the generalized purview of the Fourteenth Amendment.
B. New Jersey State Law Claims
Federal district courts have supplemental jurisdiction over related state law claims by virtue of 28 U.S.C. § 1367. Section 1367(c) states that a district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction. Because plaintiffs' federal causes of action have been dismissed, this Court will decline to exercise supplemental jurisdiction over plaintiffs' remaining state law claims and will dismiss them without prejudice.
CONCLUSION
In light of the foregoing, the amended complaint, with the exception of the RICO count, is dismissed with prejudice. The court permitted plaintiffs two weeks from the hearing date to elect to retain or dismiss the RICO count. If plaintiffs decide to retain the RICO count they are to file a RICO Statement in accordance with our Local Rules within 30 days of the hearing date. The court will then determine whether to dismiss that claim.