NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KENNETH B. PEKAROFSKI, 

 Plaintiffs,

 v.

PSE&G.,

 

 Defendant.

 Civil Action No. 11-cv-01466 

 (SDW) 

 OPINION

 December 20, 2011

WIGENTON, District Judge.

Before the Court is Defendant Public Service Electric and Gas Company‟s (“PSE&G”)

Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and 

Motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). This 

Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1367. Venue is proper 

pursuant to 28 U.S.C. § 1391(b). This Court, having considered the parties‟ submissions, 

decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For 

the reasons stated below, this Court GRANTS Defendant‟s Motion to Dismiss for lack of subject 

matter jurisdiction and DENIES all other motions as MOOT. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2011, Plaintiff Kenneth D. Pekarofski (“Plaintiff”), appearing pro se, 

commenced this action against Defendant PSE&G. Plaintiff filed a one-count complaint that 

alleges violations of his constitutional rights. Specifically, Plaintiff alleges that PSE&G, under 

the suspicion that Plaintiff was involved in organized crime, placed microphones in his home, 

which allow public citizens to hear what takes place in Plaintiff‟s residence. Plaintiff states in 

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his complaint that PSE&G‟s suspicion was based on a false accusation by a third party. Plaintiff 

also stated that he “can get PSE&G on slander, invasion of privacy, harassment, so on and so 

forth.” (See Compl.) On June 17, 2001, PSE&G brought the instant motions to dismiss 

Plaintiff‟s claims.

II. MOTION TO DISMISS

a. Legal Standard

The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which 

requires that a complaint allege “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The rule “requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . 

Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). See Phillips v. 

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a „showing‟ rather than a 

blanket assertion of an entitlement to relief.” (citation omitted)). When reviewing a motion to 

dismiss, a court must “accept all factual allegations as true, construe the complaint in the light 

most favorable to the plaintiff, and determine whether, under any reasonable reading of the 

complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 233. 

As a general rule, a district court deciding a motion to dismiss may consider only the 

contents of the pleadings. Pryor v. Nat‟l Collegiate Athletic Ass‟n, 288 F.3d 548, 560 (3d Cir. 

2002) (internal citation omitted). However, there exists an exception to that general rule in that 

“„[d]ocuments that the defendant attaches to the motion to dismiss are considered part of the 

pleadings if they are referred to in the plaintiff‟s complaint and are central to the claim.‟” Cooper 

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v. Samsung Elecs. America, Inc., 374 F. App‟x 250, 253 n.3 (3d Cir. Mar. 30, 2010) (quoting 

Pryor, 288 F.3d at 560).

b. Standing

To bring a suit in federal court, a plaintiff must have standing pursuant to Article III of 

the United States Constitution. To establish Article III standing, a plaintiff must show: (1) injury 

in fact, (2) causation, and (3) redressability. See Horvath v. Keystone Health plan E., Inc., 333 

F.3d 450, 455 (3d Cir. 2003); Lujan v. Defenders of Wild-life, 504 U.S. 555, 560-61 (1992). “To 

demonstrate an injury in fact, a plaintiff must demonstrate the “invasion of a legally protected 

interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or 

hypothetical.” Lujan, 504 U.S. at 561. Furthermore, “there must be a causal connection between 

the injury and the conduct complained of – the injury has to be fairly . . . trace[able] to the 

challenged action of the defendant, and not . . . th[e] result [of] the independent action of some 

third party not before the court.” Id. Last, “it must be likely, as opposed to merely speculative, 

that the injury will be redressed by a favorable decision.” Id. “[T]he injury must affect the 

plaintiff in a personal and individual way.” Id.

Here, Plaintiff‟s allegations are insufficient to establish subject matter jurisdiction. 

Plaintiff merely alleges in his complaint that PSE&G placed microphones in his home thereby 

violating his constitutional rights. Plaintiff, however, does not provide any factual allegations 

supporting his contention that PSE&G in fact did place microphones in his home. Therefore, 

Plaintiff‟s alleged injury is not fairly traceable to PSE&G‟s alleged conduct. See Lujan 504 U.S. 

at 561. Furthermore, Plaintiff has not specified his injury. Instead, Plaintiff simply uses the 

generic term “constitutional rights” to refer to the injury caused by PSE&G‟s alleged actions. 

Plaintiff‟s allegations are also insufficient to illustrate that Plaintiff is entitled to relief. See FED.

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R. CIV. P. 8(a)(2). Since Plaintiff has failed to satisfy the first element of standing, thereby 

making it impossible to establish standing, this Court need not address PSE&G‟s remaining 

arguments.

CONCLUSION

For the reasons set forth above, Defendant‟s motion is GRANTED.

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

Cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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