                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2828-16T3

MARCOS GARCIGA,

          Plaintiff-Appellant,

v.

TOWN OF WEST NEW YORK,
MAYOR FELIX ROQUE, and
CARIDAD RODRIGUEZ,

     Defendants-Respondents.
_____________________________

                    Argued December 2, 2019 – Decided December 27, 2019

                    Before Judges Fasciale, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-2311-16.

                    Benjamin O. Weathers argued the cause for appellant
                    (Caruso Smith Picini PC, attorneys; Louis Alexander
                    Zayas, on the briefs).

                    Thomas A. Abbate argued the cause for respondents
                    (De Cotiis FitzPatrick Cole & Giblin LLP, attorneys;
                    Thomas A. Abbate, of counsel and on the brief; Amy E.
                    Shotmeyer, on the brief).
PER CURIAM

      Plaintiff appeals from a December 12, 2016 order dismissing his

complaint with prejudice for failure to state a claim upon which relief can be

granted, Rule 4:6-2(e); and a March 3, 2017 order denying reconsideration.

Plaintiff's fifteen-page complaint, including seventy enumerated paragraphs,

contains three causes of action: a violation of the New Jersey Civil Rights Act

(NJCRA), N.J.S.A. 10:6-1 to -2 (count one); a violation of the New Jersey Civil

Racketeer Influenced and Corrupt Organizations Act (NJRICO), N.J.S.A.

2C:41-1 to -6.2 (count two); and conspiracy to violate the NJRICO, particularly

N.J.S.A. 2C:41-1(c) and N.J.S.A. 2C:41-2(d) (count three).         In addition to

seeking a declaration that defendants violated his rights, plaintiff seeks

monetary damages.

      We reverse.

                                        I.

      We review motions to dismiss de novo. Castello v. Wohler, 446 N.J.

Super. 1, 14 (App. Div. 2016). "Ordinarily a dismissal for failure to state a claim

is without prejudice." Pressler & Verniero, Current N.J. Court Rules, cmt. 4.1.1

on R. 4:6-2(e) (2020). Here, the judge entered the order with prejudice, which,

at a minimum, should have been without prejudice. Nevertheless, at this early


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                                        2
stage in the litigation, our stringent standard of review of Rule 4:6-2(e) orders

requires an outright reversal. By doing so, we do not mean to imply defendants

are without an opportunity to later seek summary judgment—or any other

appropriate relief.

      A motion to dismiss a complaint for failure to state a cause of action must

be denied if, affording plaintiffs the benefit of all allegations and all favorable

inferences, a cause of action has been set forth. R. 4:6-2(e); see Tisby v. Camden

Cty. Corr. Facility, 448 N.J. Super. 241, 247 (App. Div. 2017). We emphasize

that we are required to give plaintiff the benefit of all favorable inferences.

Indeed, "Rule 4:6-2(e) motions to dismiss should be granted in 'only the rarest

[of] instances.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005)

(alteration in original) (quoting Lieberman v. Port Auth. of N.Y. & N.J., 132

N.J. 76, 79 (1993) (citation omitted)).

      "[O]ur inquiry is limited to examining the legal sufficiency of the facts

alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989). We search the complaint "in depth and with

liberality" to determine whether the basis for a cause of action may be found

even in an obscure statement of a claim, opportunity should be given to amend

if necessary. Ibid. (internal quotation marks and citation omitted). "Dismissal


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                                          3
is appropriate only if the complaint states no basis for relief and discovery would

not provide one." J-M Mfg. Co., Inc. v. Phillips & Cohen, LLP, 443 N.J. Super.

447, 453 (App. Div. 2015) (internal quotation marks and citation omitted). We

must accept the allegations in the complaint as truthful when undertaking our

analysis.

                                        II.

      The West New York Police Department employed plaintiff as a police

officer since 1999. At the relevant timeframe—between 2013 and 2015—

defendant Felix Roque served as Mayor of West New York, and defendant

Caridad Rodriguez (the Commissioner) (collectively defendants), was

designated as Commissioner of Public Safety, and in that capacity, she had

authority to promote officers.

      In September 2013, plaintiff took the promotional exam for lieutenant and

in February 2014, he learned that he ranked second among the top three

candidates eligible for promotion.      During the next few months, plaintiff

participated in political events supporting his brother-in-law, who was running

for Freeholder against an individual endorsed by a politician (the politician) of

a nearby town. Thereafter, plaintiff continued supporting his brother-in-law's

political campaign.


                                                                           A-2828-16T3
                                        4
      In September 2014—after the primary elections that June—the police

department promoted the first of the top-ranking officers to lieutenant. This

promotion made plaintiff the next officer in line for promotion. That same

month, plaintiff spoke to defendants concerning his promotion, and they said

that he needed to "make peace with the hill"—meaning with the politician.

Mayor Roque offered to help, and he told plaintiff to attend a political event for

the politician. Although he agreed initially to do so, plaintiff reconsidered and

later declined to attend the political event.

      In December 2014, another round of promotions was scheduled. The next

month, the Commissioner told plaintiff that he was being penalized for his

political affiliation, specifically citing a photograph that depicted plaintiff's face

in support of another candidate from the other party. Wanting a promotion,

plaintiff attempted to "make peace."

      In June 2015, the department started moving forward with promotions,

proceeding slowly. Plaintiff's colleagues blamed him for the delay, avoided

him, and refused to speak with him. The police department eventually promoted

plaintiff to lieutenant. But plaintiff asserted he would have been promoted in

June 2014 or August 2015 if not for his political affiliations. He alleged he lost




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                                          5
approximately $20,000 in salary per year, and that the delay in his promotion

prevented him from taking the captain's exam in October 2016 until 2019.

      As to the NJCRA, the judge observed that plaintiff must allege an adverse

employment action sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights. The trial judge concluded that the mere

"delay in a promotion" did not meet this standard, especially because plaintiff

received the promotion. As to the NJRICO claims, the judge determined that

plaintiff failed to establish more than one racketeering act—the delayed

promotion.

                                       III.

      On appeal, plaintiff argues this is not a discrimination case, but rather,

that he pled sufficient facts to support claims under the NJCRA and NJRICO.

As for the NJCRA, he alleged defendants conditioned his promotion on his

relinquishment of his First Amendment rights. As to the NJRICO claims,

plaintiff alleged various incidents of conspiracy and extortion to coerce him into

changing his political affiliation—a pattern of racketeering—that promoted a

political patronage policy. He maintains his complaint survived the Rule 4:6-

2(e) motion.




                                                                          A-2828-16T3
                                        6
                                         A.

      The judge dismissed the NJCRA claim because the police department

promoted plaintiff—albeit after a delay—to lieutenant. The judge reasoned that

plaintiff therefore suffered no adverse employment action. Accordingly, the

judge concluded that without an adverse employment action sufficient to deter

a person from exercising his First Amendment rights, there was no claim under

the NJCRA.

      The NJCRA affords a private right of action for conduct under the color

of law that interferes with rights secured by the constitutions of this State and

the United States. N.J.S.A. 10:6-2(c). The statute, which permits a cause of

action for retaliation based on free speech and political affiliation, provides in

pertinent part:

             Any person who has been deprived of any . . . privileges
             or immunities secured by the Constitution or laws of
             the United States, or . . . of this State, or whose exercise
             or enjoyment of those substantive rights, privileges or
             immunities has been interfered with or attempted to be
             interfered with, by threats, intimidation or coercion by
             a person acting under color of law, may bring a civil
             action for damages and for injunctive or other
             appropriate relief.

             [N.J.S.A. 10:6-2(c).]




                                                                            A-2828-16T3
                                          7
In general, "[a] plaintiff who alleges retaliation for political affiliation must

show: (1) he was employed at a public agency in a position that does not require

political affiliation; (2) he was engaged in constitutionally protected conduct;

and (3) the conduct was a substantial or motivating factor in the government's

employment decision." Lapolla v. Cty. of Union, 449 N.J. Super. 288, 298 (App.

Div. 2017) (internal quotation marks and citation omitted).

      The United States Supreme Court has held that the grant or denial of a

promotion to a non-political position "based on political affiliation or support

are an impermissible infringement on the First Amendment rights of public

employees." Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990). Indeed,

as we have recognized, public employees are protected under the First

Amendment "from promotion, transfer . . . and other hiring decisions

conditioned on political affiliation[.]" Lapolla, 449 N.J. Super. at 300 (citation

omitted). Thus, regardless of whether he suffered an adverse employment

action, plaintiff pled adequate facts of alleged retaliatory actions to sufficiently

chill him from engaging in a protected activity.

      The Court rejected the notion that only employment decisions that are the

"substantial equivalent of a dismissal violate a public employee's rights under

the First Amendment." Rutan, 497 U.S. at 75 (internal quotation marks and


                                                                            A-2828-16T3
                                         8
citation omitted). Such a test would be "unduly restrictive" because there are

less harsh deprivations than dismissal that nevertheless "press state employees

and applicants to conform their beliefs and associations to some state -selected

orthodoxy." Ibid. The Court stated that the First Amendment protects state

employees from "even an act of retaliation as trivial as failing to hold a birthday

party for a public employee . . . when intended to punish [him or] her for

exercising [his or] her free speech rights." Id. at 75-76 n.8 (first alteration in

original) (citation omitted). The First Amendment safeguards individuals—

except in the most compelling circumstances—from interfering with "its

employees' freedom to believe and associate, or to not believe and not

associate." Ibid.

      Thus—and keeping in mind that courts grant Rule 4:6-2(e) motions only

in the rarest of instances—plaintiff's promotion to lieutenant did not render his

claim under the NJCRA nugatory. There remain multiple alleged facts that

support such a cause of action: he supported his brother-in-law's campaign, in

opposition to defendants and their allies; his promotion was conditioned on his

political support; he had to "make peace"; he had to buy a ticket to a political

fundraiser of the opposite party; and he was "penalized" for his association with

his brother-in-law. Furthermore, although he was not required to allege an


                                                                           A-2828-16T3
                                        9
adverse employment action, plaintiff did so by insisting that he lost $20,000

annually, he lost overtime pay, and his opportunity to sit for the captain's exam

in 2016 was delayed until 2019. Again, at this early stage in the litigation, we

must accept these allegations as true.

                                         B.

      The judge found plaintiff's complaint referred only to one instance of

alleged illegal activity—the delay in promotion to lieutenant. He dismissed

plaintiff's NJRICO claims because there was "no evidence of a continuo[u]s and

related pattern of racketeering activity." Applying our de novo review, we

conclude plaintiff alleged sufficient facts to establish claims under the NJRICO

statute, including various acts of conspiracy and extortion to coerce him into

changing his political affiliation.

      NJRICO provides in pertinent part:

             It shall be unlawful for any person employed by or
             associated with any enterprise engaged in or activities
             of which affect trade or commerce to conduct or
             participate, directly or indirectly, in the conduct of the
             enterprise's affairs through a pattern of racketeering
             activity or collection of unlawful debt.

             [N.J.S.A. 2C:41-2(c).]

NJRICO is broader in scope than the federal RICO statute. State v. Ball (Ball

I), 268 N.J. Super. 72, 104 (App. Div. 1993). New Jersey courts take a liberal

                                                                          A-2828-16T3
                                         10
stance in permitting plaintiffs to plead NJRICO violations, rejecting the narrow

construction of the federal statute that many circuits have adopted. Id. at 103-

104. "[T]he primary criterion of New Jersey's 'pattern of racketeering activity'

is 'relatedness,'" which "calls for the application of a broad standard involving

the totality of all relevant circumstances" that may include "continuity." State

v. Ball (Ball II), 141 N.J. 142, 169 (1995) (citation omitted). Pursuant to

N.J.S.A. 2C:41-2(c), a plaintiff must prove the following five elements:

            (1) the existence of an enterprise; (2) that the enterprise
            engaged in or its activities affected trade or commerce;
            (3) that defendant was employed by, or associated with
            the enterprise; (4) that he or she participated in the
            conduct of the affairs of the enterprise; and (5) that he
            or she participated through a pattern of racketeering
            activity.

            [Ball I, 268 N.J. Super. at 99.]

The statute defines a racketeering act to include any of the enumerated crimes

in N.J.S.A. 2C:41-1(a). A pattern of racketeering activity is defined with two

components: (1) at least two incidents of racketeering conduct (predicate acts);

and (2) the conduct must have "the same or similar purposes, results, participants

or victims or methods of commission or are otherwise interrelated by

distinguishing characteristics and are not isolated incidents." N.J.S.A. 2C:41-

1(d).


                                                                           A-2828-16T3
                                       11
      Plaintiff claimed numerous discrete criminal incidents as part of his

alleged pattern of racketeering relating to conspiracy to extort an employee to

relinquish his First Amendment rights in exchange for a government benefit ,

and utilization of government positions to withhold a government benefit for a

corrupt purpose. Plaintiff maintains these incidents satisfy the elements of

corruption of a public resource, conspiracy, and extortion. He argues these

incidents were related to the same purpose: advancing an illegal patronage

policy, and promoting the mayor's political power.1 NJRICO uses the phrase

"incidents," while the federal RICO statute uses "acts." The Ball II Court noted

that the pertinent legislative history considered "act" to be overly restrictive,

"whereas an incident more aptly represents . . . circumstance or happening." 141

N.J. at 167 (internal quotation marks and citation omitted).

      Under our standard of review, we must search the allegations in the

complaint to see whether they support a cause of action. Plaintiff alleged the

predicate acts of bribery, N.J.S.A. 2C:27-2 (indirectly offering plaintiff the

opportunity for promotion following solicitation of campaign funds ); theft by

extortion, N.J.S.A. 2C:20-5 (obtaining campaign funds by withholding action as


1
  Plaintiff asserts that for pleading purposes, he alleged two predicate acts, but
that he could have included others such as conspiracy and wire fraud.


                                                                          A-2828-16T3
                                       12
an official); official misconduct, N.J.S.A. 2C:30-2 (unauthorized exercise of

power by withholding the promotion to injure plaintiff); and corruption of a

public resource, N.J.S.A. 2C:27-12 (using public resources to retaliate against

plaintiff). Along these lines, we look to the allegations and must give plaintiff

all favorable inferences.

      That said, plaintiff alleged numerous incidents.       He alleged that in

September 2014, Mayor Roque told him he had to "make peace with the hill,"

and he had to attend a political event sponsored by the other party. That

conversation, as alleged in the complaint, occurred in response to plaintiff's

inquiry about his own promotion once he learned that the first candidate on the

list received a promotion.

      Also in September 2014, plaintiff arranged a meeting with the

Commissioner to discuss his promotion. He alleged that he then learned that

she would help "make things right," but that he could no longer support his

brother-in-law's campaign. Plaintiff asserted that the Commissioner also stated

that he needed to "make peace with the hill."

      Plaintiff contended that in October 2014, he spoke to the Mayor and

confirmed he would attend the political event as a guest of the Mayor. But then

plaintiff talked to the Mayor and explained he would not attend. Plaintiff alleged


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                                       13
he changed his mind because he concluded it should be sufficient that he was

the highest ranking eligible person for the promotion.

      Plaintiff alleged that the Commissioner also conditioned his promotion on

further political action.     He alleged that—in yet another incident—the

Commissioner called him in January 2015 about the photograph. Plaintiff

alleged the Commissioner stated no one believed plaintiff when he said he had

no knowledge of the photograph, and the Commissioner said that he was being

penalized for the photograph.

                                       IV.

      In summary, plaintiff alleged sufficient facts to overcome defendants'

Rule 4:6-2(e) motion.       We reach that conclusion emphasizing our limited

standard of review. We anticipate the parties will engage in dispositive motion

practice on the NJCRA and NJRICO claims, including but not limited to

applications challenging whether defendants were part of an enterprise, and if

so, whether the purported enterprise was engaged in activities affecting

commerce.     Those questions go more towards the merits of plaintiff's

allegations, rather than whether—affording plaintiff the benefit of all allegations

and all favorable inferences—plaintiff sufficiently alleged facts establishing a

valid cause of action. Of course, we take no position and leave to another day


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                                       14
the outcome of any additional motion practice seeking to dismiss all or part of

the complaint.

      Reversed.




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                                     15
