John Michael Vazquez, U.S.D.J.
This matter comes before the Court on two separate motions to dismiss the Second
This action arises out of a project (the "Project") undertaken by SEP to remediate a landfill in Roxbury Township, New Jersey. Plaintiff Marilyn Bernardi is the sole member of SEP and Plaintiff Richard Bernardi is her husband and an "authorized agent" of SEP. Second Amended Complaint ("SAC") ¶¶ 3-4, 51. Plaintiffs allege that Defendants violated their Constitutional rights, as well as multiple state laws and the New Jersey State Constitution, by interfering with the operation of the Project and by eventually taking control of the landfill. Id. at Introduction.
In 2010, SEP acquired 103 acres of real property in Roxbury Township that was formerly the known as the Fenimore Landfill (the "Landfill" or the "Site"), with the purpose of remediating the Landfill and developing the property as a solar farm. Id. at ¶¶ 13-14, 39-40.
Plaintiffs contend that these refusals to involve Bucco or Roxbury in the Project "frustrated and angered" Roxbury, Bucco, Hall (Roxbury's Mayor) and Raths (Roxbury's Manager). Id. Plaintiffs allege that the ultimate source of Bucco and Roxbury's opposition to the Project was a fear that Roxbury could be liable for "negligent handling of the Landfill and the houses built around it." Id. at ¶¶ 48, 50. Plaintiffs also allege that Bucco feared Roxbury's potential liability because his son, Anthony M. Bucco, is the Township Attorney for Roxbury. Id. at ¶¶ 47-48. In addition to this fear of potential liability, Plaintiffs contend that Bucco and Roxbury opposed the Project because they believed, "correctly," that the Project would create heavy truck traffic on residential streets and that this would upset local residents. Id. at ¶ 45.
Plaintiffs allege that SEP's relationship with the NJDEP also soured when SEP objected to a provision of the "Closure Plan" for the Landfill. In October 2011, the NJDEP issued a Closure Plan to SEP, which permitted SEP to accept "construction and demolition screenings ("CDS"), a non-hazardous, recyclable material to cap and fill the Landfill. Id. at ¶ 56. "Several months" after the NJDEP issued the Closure Plan, Plaintiffs' objected to a provision of the plan that required SEP to deposit all of its income from "tipping fees" (fees paid to SEP in consideration for accepting NJDEP-approved fill material such as CDS) into an escrow account controlled by the NJDEP. Id. at ¶¶ 56-59. Following SEP's refusal to deposit tipping fees into the escrow account, the NJDEP issued an order "commanding SEP to cease operations at the Site." SEP sought injunctive relief against the NJDEP, but the parties resolved the matter with "an injunction by consent." Id. at ¶¶ 59-60. The resolution was short-lived, however, because according to Plaintiffs, SEP's request for an injunction "incensed and frustrated Defendants Martin, the NJDEP, Bucco and Roxbury," so that "Commissioner Martin and the NJDEP escalated [their] efforts to shut SEP down." Bucco and Roxbury allegedly "joined the NJDEP against SEP." Id. at ¶¶ 61-62.
Subsequently, Plaintiffs allege that Defendants took the following actions as part of their efforts to "shut SEP down":
Plaintiffs filed the Complaint in the instant action on August 22, 2013. D.E. 1. Plaintiffs then filed an Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1) on September 30, 2013. D.E. 3. Motions to dismiss the Amended Complaint were subsequently filed on behalf of the State Defendants (Senator Bucco initially filed a separate Motion to Dismiss the Amended Complaint), the Roxbury Defendants, and Atlantic. D.E. 7, 8, 21 and 29. While those motions were pending, Plaintiffs filed two motions to amend, seeking to file a Second, and then Third, Amended Complaint. D.E. 16, 35. On June 9, 2014, the Court administratively terminated the motions to dismiss pending its ruling on Plaintiffs' Motions to Amend. D.E. 37. On August 4, 2014, the Court granted Plaintiffs' first Motion to Amend and denied Plaintiffs' Second Motion to Amend, permitting Plaintiffs to file the Second Amended Complaint. D.E. 43.
Plaintiffs filed their hard to construe and sprawling Second Amended Complaint on August 8, 2014. Because Plaintiffs' allegations
On August 26, 2014, the State Defendants filed a Motion to Dismiss the Second Amended Complaint (D.E. 48), which the Roxbury Defendants joined. D.E. 53. Defendant Atlantic filed a separate Motion to Dismiss the following day. D.E. 49. Plaintiffs have opposed both motions. D.E. 55, 57. The State Defendants argue that the Second Amended Complaint should be dismissed in its entirety against the NJDEP, and Martin and Kropp, in their official capacities, pursuant to the doctrine of sovereign immunity. Gov't Br. at 6-7. The State Defendants also argue that the claims related to the enactment of the Legacy Landfill Law should be dismissed as to Senator Bucco, Martin, and Kropp pursuant to the doctrine of legislative immunity. Id. at 8-10. As for the Section 1983 claims, the State Defendants argue that Plaintiffs fail to plead facts sufficient to establish any cognizable or plausible claim. Id. at 13-24. In addition, the State Defendants argue that even if the Second Amended Complaint sufficiently pled a Section 1983 claim, Bucco, Martin, and Kropp are shielded from liability pursuant to the doctrine of qualified immunity. Id. at 10-12. The State Defendants argue that Plaintiffs' Declaratory Judgment claim should also be dismissed because the Legacy Landfill Law is not unconstitutional special legislation under the New Jersey State Constitution, and that the claim should be dismissed pursuant to the Younger abstention doctrine. Id. at 24-31. Finally, the State Defendants argue that the remaining state law claims should be dismissed for lack of jurisdiction. Id. at 31-32.
Atlantic argues that the Section 1983 claims asserted against it should be dismissed because Plaintiffs fail to establish that Atlantic was a "state actor," which is required for Section 1983 liability. Atlantic Br. at 5-6. Atlantic further argues that because Plaintiffs' federal claims against it fail, the remaining state claims should be dismissed for lack of jurisdiction. Id. at 7. Atlantic also argues that the state law claims must also be dismissed because Plaintiffs' Second Amended Complaint does not plead facts sufficient to state any claims. Id. at 7-9.
On April 29, 2015, the Court entered an order requiring the parties to submit further briefing on three discrete issues raised in the parties' motion to dismiss
Since filing the instant matter, Plaintiffs initiated related New Jersey state court litigation. First, on January 5, 2014, Plaintiffs filed an inverse condemnation claim in state court under the Eminent Domain Act, N.J.S.A. 20:3-1 et seq. See Gov't Br. at 24 n. 8. Second, Plaintiffs appealed the June 26, 2014 Emergency Order and seizure. On November 13, 2014, the Appellate Division concluded that the NJDEP "exceeded its authority under N.J.S.A. 13:1E-125.4 by seizing control of SEP's property without first securing judicial approval" and erred in relying on H2S levels that were measured before the Legacy Landfill Law was passed. Strategic Envtl. Partners, LLC, 438 N.J.Super. at 131, 102 A.3d 939. The Court, however, remanded the matter to the Law Division to determine whether the H2S levels present on June 26 created an "imminent threat to the environment," which would have permitted the NJDEP to issue an Emergency Order pursuant to N.J.S.A. 13:1E-125.9. Id. at 143, 102 A.3d 939. Although the Appellate Division refused to address SEP's argument that the NJDEP's seizure deprived it of Due Process and constituted an unlawful taking, it did determine that the Legacy Landfill Law did not amount to unlawful special legislation, and is therefore valid under the New Jersey State Constitution.
The State Defendants move to dismiss all claims asserted against the NJDEP, and Martin and Kropp in their official capacities, because they are shielded from liability under the doctrine of sovereign immunity. Gov't Br. at 6-7. A motion to dismiss based upon sovereign immunity is properly brought pursuant to Rule 12(b)(1) because sovereign immunity implicates the Court's subject-matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir.1996) ("[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction."). In deciding a Rule 12(b)(1) motion to dismiss, a court must first determine whether the party presents a facial or factual attack because that distinction determines how the pleading is reviewed. See Mortensen v. First Fed. Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). "A facial attack concerns an alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiff's claims to comport factually with the jurisdictional prerequisites." Young v. United States, 152 Supp.3d 337, 345, 2015 WL 9592442, at *5 (D.N.J. Dec. 2, 2015). Here, the State Defendants assert the defense of sovereign immunity through the pleadings alone, thereby raising a facial attack. See Perez v. New Jersey, No. 14-4610 (CCC-JBC), 2015 WL 4394229, at *3 (D.N.J. July 15, 2015) ("[T]he State Defendants' motion asserts the defense of sovereign immunity based on the facts as pleaded in the Second Amended Complaint and is thus a facial attack."). Accordingly, "the court must only consider the allegations of the complaint and documents referenced therein ... in the light most favorable to the plaintiff." Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000).
All of the Defendants argue for dismissal of the remaining claims pursuant to Rule 12(b)(6). For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible "when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the plausibility standard "does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully." Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir.2016) (internal quotations and citations omitted). As a result, a plaintiff must "allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims." Id. at 789. A complaint that only pleads facts that are consistent with a defendant's liability, however, "stops short of the line between possibility and plausibility of entitlement to relief." Id. at 786.
In evaluating the sufficiency of a complaint, district courts must separate the
For the reasons set forth below, all of Plaintiffs' claims against the NJDEP, and against Martin and Kropp in their official capacities will be dismissed with prejudice for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Plaintiffs' Section 1983 claim addressing the Legacy Landfill Law (Count Three) will be dismissed with prejudice because it is barred by the doctrine of legislative immunity. Plaintiffs' Just Compensation Section 1983 claim (Count Six) will be dismissed without prejudice because it is not ripe for federal review. Plaintiffs' remaining Section 1983 claims (Counts One and Two) will be dismissed against the remaining Defendants for failure to state a claim pursuant to Rule 12(b)(6). Consequently, the Court will not address whether any of the Defendants are entitled to qualified immunity for the Section 1983 claims. Because the Court would be forced to address whether the Legacy Landfill Law is constitutional under the New Jersey State Constitution — an issue that has already been decided by a New Jersey appellate court — the Court declines to exercise its jurisdiction to hear Plaintiffs' Declaratory Judgment claim (Count Ten). Finally, the Court also declines to exercise its supplemental jurisdiction over Plaintiffs' remaining state law claims (Counts Four, Five, Seven, Eight, Nine, and Eleven). Accordingly, these claims will also be dismissed.
The State Defendants argue that sovereign immunity bars all of Plaintiffs' claims against the NJDEP, and the claims against Martin and Kropp in their official capacities. Gov't Br. at 6-7. Plaintiffs did not address this aspect of the State Defendants' motion to dismiss. Generally, the Eleventh Amendment "protects a state or state agency from suit brought in federal court by one of its own citizens regardless of the relief sought."
Although there are three exceptions to sovereign immunity, none apply in this case. First, "Congress may abrogate state sovereign immunity in the exercise of its power to enforce the Fourteenth Amendment." Antonelli v. New Jersey, 310 F.Supp.2d 700, 713 (D.N.J.2004). It is clear, however, that Congress did not abrogate states' sovereign immunity in enacting Section 1983. Id. at 714. Second, a state may waive sovereign immunity by consenting to suit in federal court by "invok[ing] [its] jurisdiction by bringing suit," or by making "a clear declaration that it intends to submit itself to our jurisdiction." MCI Telecomm. Corp., 271 F.3d at 503-04. Plaintiffs do not argue, and there is no indication that New Jersey waived its sovereign
Sovereign immunity thus bars the Court from hearing the federal claims Plaintiffs assert against the NJDEP, and Martin and Kropp in their official capacities. See, e.g., Shieldalloy Metallurgical Corp. v. NJDEP, 743 F.Supp.2d 429, 434-40 (D.N.J.2010) (dismissing case against NJDEP and acting Commissioner due to sovereign immunity). Plaintiffs' state law claims against the NJDEP, and Martin and Kropp in their official capacities, will also be dismissed because "[28 U.S.C.] § 1367(a) does not authorize district courts to exercise jurisdiction over claims against nonconsenting States," absent an exception to the State's sovereign immunity. Figueroa v. City of Camden, 580 F.Supp.2d 390, 405 (D.N.J.2008) (dismissing state law claims against state and state official acting in his official capacity).
The Second Amended Complaint asserts claims against Martin and Kropp in their individual and official capacities (see SAC ¶¶ 7, 10), however, it completely fails to differentiate between their official and individual conduct. Because the Court must liberally construe Plaintiffs' pleading, the remaining analysis assumes that Martin and Kropp acted in their individual capacities.
To state a Section 1983 claim, a plaintiff must allege "the violation of a right secured by the Constitution and the laws of the United States," and that "the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Further, "[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. Local governing bodies, as well as local government officials sued in their official capacities, can be liable under Section 1983 where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or
Plaintiffs' Section 1983 claims against the remaining Defendants will be dismissed for failure to state a claim as discussed below.
In Count One of the Second Amended Complaint, Plaintiffs allege that Defendants deprived Plaintiffs of their "right to exercise free speech without fear of governmental retaliation."
To state a First Amendment retaliation claim, a plaintiff must allege that (1) he engaged in a protected activity; (2) defendant's retaliatory action was sufficient to deter a person of ordinary firmness from exercising his rights; and (3) there was a causal connection between the protected activity and retaliatory action. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007). The requisite causal connection may exist if there is "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Id. If such proof is not available, "the plaintiff must show that from the evidence gleaned from the record as a whole the trier of fact should infer causation." Id.
The speech in Mr. Bernardi's Certification and the Ethics Complaint is constitutionally protected. Mayer v. Gottheiner, 382 F.Supp.2d 635, 647 (D.N.J.2005) ("Generally, except for certain narrow categories deemed unworthy of full First Amendment protection — such as obscenity, `fighting words' and libel — all speech is protected by the First Amendment."). At
As noted above, to state a Section 1983 claim, Plaintiffs must allege each Defendant's personal involvement in the alleged violations. See Igbal, 556 U.S. at 676, 129 S.Ct. 1937; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (affirming dismissal of First Amendment retaliation claim where plaintiff failed to allege personal direction of or knowledge and acquiescence in retaliatory actions by individual defendants). Conclusory statements accompanying "[t]hreadbare recitals of the elements of a cause of action" are insufficient. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Rather, a complaint must contain well-pleaded facts that "permit the court to infer more than the mere possibility of misconduct," thus "show[ing]... that the pleader is entitled to relief." Id. at 679, 129 S.Ct. 1937; see also Morris v. Phila. Hous. Auth., No. 10-5431, 2011 WL 1661506, at *5 (E.D.Pa. Apr. 28, 2011) (dismissing retaliation claims against "other Defendants," where plaintiffs alleged only that "`others' ... reacted with `rage' and `retaliation,'" but "nothing in [plaintiff's] Complaint suggest[ed] that [other Defendants] participated, directed, or were even aware of his speech or the alleged retaliation").
Here, Plaintiffs have not alleged facts sufficient to survive a motion to dismiss for their Section 1983 claim regarding alleged violations of their First Amendment Free Speech rights for any Defendant. Although Count One of the Second Amended Complaint generally alleges that all Defendants are liable for violations of their First Amendment rights, Plaintiffs appear to concede that their First Amendment claim is limited to the "Defendant State Officials." See Gov't Opp. Br. at 14. As a result, the Court will dismiss the First Amendment claim as to the Roxbury Defendants.
As for Atlantic and Bucco, Plaintiffs plead no facts that even suggest they were aware of Mr. Bernardi's Certification or the Ethics Complaint, or that either Defendant had any motive to retaliate against Plaintiffs for raising the alleged conflict of interest. Thus, Plaintiffs fail to state a retaliation claim as to Atlantic and Bucco. See Cooper v. Menges, 541 Fed.Appx. 228, 232-33 (3d Cir.2013) (affirming summary judgment for defendants on First Amendment retaliation claims (1) because plaintiffs could not establish that parties who allegedly retaliated were aware of plaintiffs' allegedly protected speech and (2) because factors other than retaliatory motive — such as personal relationships and business size — likely resulted in unfavorable treatment of plaintiffs).
Despite the fact that the conflict of interest directly involved Kropp, the Second Amended Complaint lacks facts that demonstrate Kropp retaliated against Plaintiffs. Beside the limited discussion of the conflict of interest and the conclusory statement that the Ethics Complaint "incensed" Kropp and "motivated and influenced" her actions (SAC ¶ 104), Kropp's name does not appear in the Second Amended Complaint. Simply, there are no factual allegations (other than conclusory terms) reflecting that Kropp engaged in
Plaintiffs also fail to plead facts that demonstrate causation as to Martin. Instead, the facts in Plaintiffs' Second Amended Complaint strongly suggest that Martin was motivated by odor complaints, not because Plaintiffs discussed Kropp's alleged conflict of interest. See, e.g., SAC ¶¶ 106, 112-26 (alleging that Defendants, including Martin, arranged a clandestine meeting with a[nother] judge because Judge Wilson "was not persuaded that the alleged odors justified interrupting the beneficial remediation project"). Moreover, Martin's alleged efforts to shut down the Project began months before Plaintiffs first exercised their First Amendment rights in November 2012. See, e.g., id. at ¶¶ 58-60 (explaining that in May 2012 the NJDEP attempted to enjoin the Project because SEP would not escrow all of the tipping fees with the NJDEP); ¶¶ 79-80 (alleging that Defendants, including Martin, requested that New Jersey State Police Troopers pull over trucks traveling to the Landfill in July 2012). Consequently, "from the evidence gleaned from the record as a whole the trier of the fact [cannot] infer causation." DeFlaminis, 480 F.3d at 267 (finding lack of causation where "[t]here is simply no basis in the evidence to link appellants' campaign to secure funding ... and the District's delay in satisfying or rejecting their requests"); see also Kundratic v. Thomas, 407 Fed.Appx. 625, 628 (3d Cir.2011) (affirming decision that there was no causal nexus where "nothing suggests their conduct was propelled by a retaliatory impulse"); Warren v. Fisher, No. 10-5343 (JBS/KMW), 2013 WL 1164492, at *12 (D.N.J. Mar. 19, 2013) (dismissing retaliation claim because facts demonstrated that defendants' antagonism stemmed from events that began before Plaintiffs exercised First Amendment rights).
Consequently, the Court will dismiss the First Amendment Retaliation claim in its entirety.
Plaintiffs also allege that Defendants violated their rights under the Equal Protection Clause of the Fourteenth Amendment.
Plaintiffs' Second Amended Complaint is devoid of sufficient language that establishes they have been treated differently from others who are similarly situated. Plaintiffs allege that the Mullica Hill Landfill, located in Harrison Township, New Jersey, is owned by Kropp's husband, and that it "earns tipping fees from the acceptance of fill material such as CDS." SAC ¶¶ 97-98. Plaintiffs further allege that Mullica Hill "directly competes with SEP" because it accepts CDS from the same third-parties, and that if SEP was ordered to cease accepting CDS it would "result in an immediate and substantial financial benefit to [Kropp] by redirecting shipments of revenue-generating CDS" to Mullica Hill. Id. at ¶¶ 98-100. It is not until Plaintiffs' Opposition Brief that they make clear that Mullica Hill is the allegedly similarly situated party. But it is axiomatic that Plaintiffs may not present new facts through their briefing. Frederico v. Home Depot, 507 F.3d 188, 201 (3d Cir.2007) ("[W]e do not consider after-the-fact allegations" that are first raised in a brief "in determining the sufficiency of her complaint under Rules 9(b) and 12(b)(6)"). Consequently, the Second Amended Complaint fails to plead facts that adequately establish a similarly situated party exists and that it was treated differently than Plaintiffs. Therefore, Plaintiffs' Equal Protection claim fails and is dismissed.
Even if the Court gives Plaintiffs the benefit of the doubt and considers this newly raised argument, Plaintiffs fail to plead facts that corroborate that the Project was treated differently than the remediation effort at Mullica Hill. Plaintiffs' claim that Mullica Hill would receive CDS instead of SEP is nothing more than speculation. Id. at ¶ 95. Plaintiffs plead no facts to establish that this actually occurred or that Mullica Hill was even able to accept additional fill material. Further, Plaintiffs plead no facts to support the conclusory statement in their Opposition Brief that Mullica Hill was similarly situated. For example, there are no facts establishing that Mullica Hill was a legacy landfill subject to the newly enacted requirements of the Legacy Landfill Law, was creating pervasive, malodorous smells, or that the owners of Mullica Hill entered into a consent order with the NJDEP. See Brick City Grill, Inc. v. City of Newark, No. 14-4491 (KSH)(CLW), 2016 WL 1260019, at *5 (D.N.J. Mar. 30, 2016) (dismissing class of one claim because plaintiffs "have not alleged facts to support the inference that these locations are alike in all relevant aspects"); Warren v. Fisher, No. 10-5343 (JBS/KMW), 2013 WL 1164492, at *9 (D.N.J. Mar. 19, 2013) (dismissing class of one claim because plaintiffs failed to plead such facts as the size, scope or impact of the mining operations or that other mines had similar matters pending before the planning board).
In addition, much like their First Amendment claim, Plaintiffs fail to plead any facts to establish each Defendant's specific role. Plaintiffs do not specify how each Defendant, "through the official's own individual actions," treated them differently (see Iqbal, 556 U.S. at 676, 129 S.Ct. 1937), or that any Defendant acted irrationally.
Plaintiffs allege that Defendants violated their Fifth and Fourteenth Amendment rights to Due Process. SAC ¶¶ 173-185. "Fifth Amendment [Due Process] protection only applies when the federal government seeks to deprive a person of life, liberty or property." Robinson v. Fauver, 932 F.Supp. 639, 645 n. 4 (D.N.J. 1996). Because Plaintiffs do not assert any claims against a federal actor, Plaintiffs' Fifth Amendment Due Process claim fails and is dismissed.
The Fourteenth Amendment's Due Process Clause has both a procedural and a substantive component.
To plead a violation of procedural Due Process rights under the Fourteenth Amendment, a plaintiff "must establish that the state procedure for challenging the deprivation does not satisfy the requirements of procedural due process." DiBlasio, 53 F.3d at 597. A state has adequate procedural Due Process "when it provides reasonable remedies to rectify a legal error by a local administrative body." Id. Therefore, when a party has access to full judicial process in which it may "challenge the administrative decision in question, the state has provided adequate procedural due process." Id. Here, it not clear whether Plaintiffs intend to allege a procedural Due Process claim with regards to the seizure of the Landfill. See SAC ¶¶ 174, 178-181. It is clear, however, that through New Jersey courts, Plaintiffs are challenging the NJDEP's seizure, see Strategic Envtl. Partners, LLC, 438 N.J.Super. at 139-44, 102 A.3d 939, and initiated an inverse condemnation proceeding, see Gov't Br. at 24 n. 8 (citing Hoffman v. Strategic Envtl. Partners, LLC, Dkt. MRS-L-2621-13 (N.J.Super.Ct. Law Civ.)). As a result, there is no question that the State afforded Plaintiffs with adequate procedures to challenge the seizure. DiBlasio, 53 F.3d at 598 (granting summary judgment for defendants on procedural due process claim because New Jersey provided constitutionally sufficient procedures for challenging adverse zoning decisions). Consequently,
In Count Three, Plaintiffs allege that Defendants violated their right to substantive Due Process of law by "creating, proposing, adopting, ratifying, obeying, following, enforcing, furthering or otherwise acting in concert with other Defendants who played a role in pushing through and adopting" the Legacy Landfill Law.
Plaintiffs also allege that Martin proposed amendments to the Legacy Landfill Law. See SAC ¶¶ 143-44. He is likewise entitled to legislative immunity for the legislative component of Count Three because "officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions." Baraka, 481 F.3d at 202 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)). There is no question that proposing amendments is a legislative function. Id. at 196. Plaintiffs do not allege any facts to establish that the remaining Defendants were involved with enacting the Legacy Landfill Law. Thus, Count Three is dismissed with prejudice in its entirety.
In their opposition papers, Plaintiffs state that their substantive Due Process claim is based on allegations that Defendants harassed and obstructed their Project through targeted police stops, ordered all permit applications to go through Bucco's office, planted or permitted asbestos to be delivered to SEP's property and then sought an injunction on that basis, interfered with Plaintiffs' efforts to address odor emissions, raised SEP's real estate taxes and forcibly seized Plaintiffs' property.
As stated above, for conduct to rise to the level of a substantive Due Process violation, it must shock the conscience. United Artists, 316 F.3d at 399-402. The "shocks the conscience" test is "not precise," but it is a high bar — "[w]hat shocks the conscience is only the most egregious official conduct." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir.2004) (internal quotations and citations omitted).
Whether conduct shocks the conscience "varies depending upon factual context." Chainey v. Street, 523 F.3d 200, 220 (3d Cir.2008). Conduct that may shock the conscience includes corruption, self-dealing, ethnic bias, or interference with an otherwise protected constitutional activity. Eichenlaub, 385 F.3d at 285-86. In Eichenlaub, for example, selectively enforcing zoning requirements, unannounced and unnecessary inspection and enforcement actions, delaying permits and approvals, improperly increasing tax assessments, and "malign[ing] and muzzl[ing] the [plaintiffs]" did not shock the conscience. Id. at 286. Instead, the Third Circuit found that such "complaints are examples of the kind of disagreement that is frequent in planning disputes." Id. Similarly, in DB Enterprise, the defendant state representative's coercion of plaintiff to perform construction work to benefit certain property in service of the mayor's political ambitions, false promises of reimbursement for the same, and threats to derail plaintiff's land development project did not shock the conscience. 394 Fed.Appx. at 919-20. Notably, improper motive alone is not enough to shock the conscience. See Locust Valley Golf Club, Inc. v. Upper Saucon Twp., 391 Fed.Appx. 195, 199 (3d Cir.2010) (that township official's zoning actions may have been motivated by "spite or in remote hope that he might one day purchase the property himself' was insufficiently egregious to constitute a substantive Due Process violation).
Based on the facts at hand, Defendants' alleged conduct does not shock the conscience. Even if true, Plaintiffs' allegations that Defendants harassed and obstructed the Project through targeted police stops, ordered all permit applications to go through Bucco's office, planted or permitted asbestos to be delivered to SEP's property and then sought an injunction on that basis, interfered with Plaintiffs' efforts to address odor emissions, and raised SEP's real estate taxes
The remaining allegation, that Defendants
Plaintiffs, however, fail to allege facts to demonstrate that Martin's conduct was egregious enough to shock the conscience. There are no facts demonstrating that Martin had a financial interest in Plaintiffs' land or engaged in self-dealing
The factual allegations as to Atlantic are even more sparse. Beside the conclusory allegations that all the Defendants, including Atlantic, conspired to deprive Plaintiffs of their land, and supported and participated in the seizure, Atlantic is only mentioned in a single paragraph of the 215-paragraph complaint. As discussed, Plaintiffs allege that when the NJDEP seized
Plaintiffs were operating in a highly regulated industry in which the NJDEP enforces laws and regulations to protect the environment and the public. See, e.g., N.J.S.A. 13:1D-9 (setting forth powers of the NJDEP, including the power to enter and inspect property, institute legal proceedings to prevent pollution, and administer statewide environmental protection policies). Moreover, in October 2011, the NJDEP issued the Closure Plan permit specifically to SEP, under which the Plaintiffs' Project had to operate. See SAC ¶ 56. As a result, issuance of the Emergency Order and seizing Plaintiffs' land must be viewed through the lens of the NJDEP's regulatory power and its stated goal to "formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution to the environment of the State." N.J.S.A. 13:1D-9; see also MFS, Inc. v. DiLazaro, 771 F.Supp.2d 382, 442 (E.D.Pa.2011) (concluding that conduct did not shock the conscience where environmental regulators were given broad discretion to investigate and regulate polluters); Golden Years Homestead, Inc. v. Buckland, 466 F.Supp.2d 1059, 1069-70 (S.D.Ind.2006) (finding no substantive Due Process violation in heavily regulated nursing care industry because activities were "consistent with a zealous adversarial posture arising from the regulatory mission"); Edwards v. Dunn, No. 10-CV-0145-O-BH, 2010 WL 1644134, at *4 (N.D.Tex. Mar. 31, 2010) ("The alleged conduct may show administrative arm-twisting to obtain voluntary compliance with DEA directives in a highly regulated industry, but Plaintiff has not alleged that Defendants' jawboning tactics crossed the line toward a cognizable constitutional violation, much less violated one.").
Plaintiffs cite to Nicolette v. Caruso to support their argument that the alleged conduct here shocks the conscience. 315 F.Supp.2d 710 (W.D.Pa.2003). The plaintiff in Nicolette alleged that after he stopped disposing his waste at a specific landfill, which resulted in decreased fees to the Township, the Township initiated "a retaliatory campaign of unrelenting harassment and abuse." Id. at 715. Specifically, the plaintiff alleged that he was subjected to selected enforcement of Township regulations and his plans to construct and operate various businesses were denied. Id. The Nicolette court determined that the alleged "course of conduct undertaken ... with the intent to harm and restrict" plaintiff's business was a "close question," but did "implicate[] the `shocks the conscience' test sufficiently to survive the motion to dismiss." Id. at 723. Nicolette, however, involved a pro se plaintiff so his pleading "was subjected to less stringent standards." Id. at 717. More importantly, Nicolette was decided before Eichenlaub, where, as discussed, the Third Circuit set forth the high bar that is necessary to pass the shocks the conscience test for land use disputes. Eichenlaub, 385 F.3d at 286. In addition, Prosperi v. Township of Scott, which is also cited by Plaintiffs to support their substantive Due Process argument, is also distinguishable because there the
Because Plaintiffs fail to plead facts alleging conduct that passes the shocks the conscience test, Plaintiffs' Fourteenth Amendment Substantive Due Process claim is dismissed.
Plaintiffs allege that they have been deprived of their property without just compensation and "seek a judgment in the amount of the fair value of the property of which they have been deprived." SAC ¶¶ 194-96. The State Defendants argue that Plaintiffs' Just Compensation claim should be dismissed because it is not yet ripe. Gov't Br. at 24. Plaintiffs do not address this portion of the State Defendants' Motion to Dismiss.
The Fifth Amendment proscribes the taking of property without just compensation. U.S. Const. amend. V.
New Jersey has adequate inverse condemnation procedures. Toll Bros., Inc., 2011 WL 2559507, at *13 (citing N.J.S.A. 20:3-1 et seq.). Here, Defendants contend that Plaintiffs have taken advantage of these inverse condemnation procedures by filing a claim in state court on January 5, 2014. Gov't Br. at 24 n. 8. As a result, Plaintiffs' Just Compensation claim is dismissed because it is not yet ripe. Toll Bros, 2011 WL 2559507, at *13 (citing Peduto v. City of Wildwood, 696 F.Supp. 1004, 1009 (D.N.J.1988)).
It appears that Plaintiffs also plead a Section 1983 conspiracy claim. Plaintiffs allege that "[e]ach Defendant, in concert and conspiracy with the other Defendants, intentionally violated the civil rights of the Plaintiffs." SAC ¶¶ 179, 183, 194. To state a claim for a Section 1983 conspiracy, a plaintiff must allege facts to support the existence of an agreement and a concerted action. Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir. 2009). In addition, a plaintiff must allege "a deprivation of a federally protected right." Lake v. Arnold, 112 F.3d 682, 689 (3d Cir.1997). Because Plaintiffs fail to establish any underlying violation of a constitutional right, the conspiracy claim is also dismissed. See White v. Brown, 408 Fed. Appx. 595, 599 (3d Cir.2010) ("[T]he District Court properly granted summary judgment on White's conspiracy claims because White cannot establish an underlying violation of his constitutional rights."). In addition, beside the conclusory allegation that Defendants acted "in concert and conspiracy with the other Defendants" (see, e.g. SAC ¶ 179), Plaintiffs fail to set
Because Plaintiffs fail to sufficiently plead a Section 1983 claim, the Court need not address the State Defendants' argument that they are entitled to qualified immunity. See Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir.2005) (stating that qualified immunity comes into play when a state actor's actions give rise to a Section 1983 claim).
In Count Ten, Plaintiffs seek a declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (the "DJA"), "declaring that the new Bucco Bill (N.J.S.A. 13:1E-125 et seq.) [the Legacy Landfill Law] is unconstitutional and of no force and/or effect as against Plaintiff." SAC ¶ 212. The State Defendants argue that Count Ten should be dismissed based on the Younger abstention doctrine. Gov't Br. at 24-28. The Court, however, need not address the Younger abstention doctrine to dismiss this claim.
The DJA "confers discretionary, rather than compulsory, jurisdiction upon federal courts." Reifer v. Westport Ins. Corp., 751 F.3d 129, 134-37 (3d Cir. 2014) (affirming dismissal of declaratory judgment claim that "raises issues of state law peculiarly within the purview of the Pennsylvania court system which are better decided by that system"). The Supreme Court has made clear that even if a district court has jurisdiction, it may exercise discretion pursuant to the DJA and dismiss a claim when there is a parallel state court proceeding involving the same parties, and the issue in controversy addresses state law. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 289-90, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). That is precisely the issue here. In this instance, Plaintiffs argue that the Legacy Landfill Law is unconstitutional under the New Jersey State Constitution, not the United States Constitution, in contravention of the provision that prohibits special legislation. Plaintiffs, however, raised the same argument in parallel proceedings with the NJDEP in New Jersey state court. See Strategic Envtl. Partners, LLC, 438 N.J.Super. at 144-47, 102 A.3d 939.
This decision to dismiss Count Ten is even more clear because while this case has been pending, the Appellate Division rejected Plaintiffs' special legislation argument and determined that the Legacy Landfill Law is lawful under the New Jersey State Constitution. Id. Plaintiffs appealed the decision, but the New Jersey Supreme Court declined to hear the case. 221 N.J. 218, 110 A.3d 931 (N.J.2015). There is no reason why this Court should involve itself in determining the constitutionality of a state statute under the New Jersey State Constitution when the issue has been addressed by the New Jersey courts. See DIRECTV, Inc. v. Imburgia, ___ U.S. ___, 136 S.Ct. 463, 468, 193 L.Ed.2d 365 (2015) ("[W]e recognize that California courts are the ultimate authority on that [California] law."); Doe v. Sundquist, 106 F.3d 702, 708 (6th Cir.1997) (dismissing claim challenging constitutionality of state statute due to the "respect for the right of a state court system to construe that state's own constitution and [] statute"); Flowers v. Phelps, 514 Fed. Appx. 100, 104 (3d Cir.2013) (affirming judgment on the pleadings because "the Delaware Supreme Court has already determined that [the rule] is inappropriate
Supplemental jurisdiction allows federal courts to hear state law claims "when they are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 387, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Supplemental jurisdiction, however, is discretionary. A court may decline to exercise its jurisdiction pursuant to Section 1367 if it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). The decision of whether to decline jurisdiction over state law claims "should be based on considerations of judicial economy, convenience and fairness to the litigants." Kach v. Hose, 589 F.3d 626, 650 (3d Cir.2009). Further, "[w]here the federal claims are dismissed at an early stage in the litigation, courts generally decline to exercise supplemental jurisdiction over state claims." Mattern v. City of Sea Isle, 131 F.Supp.3d 305, 320 (D.N.J.2015). Because the Court is dismissing every federal law claim, it will decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. Accordingly, these claims are dismissed.
For the reasons stated above, the Court makes the following rulings:
(1) The Second Amended Complaint is dismissed, with prejudice, as to Defendant NJDEP, Defendant Bob Martin in his official capacity, and Defendant Irene Kropp in her official capacity for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
(2) Plaintiffs' Section 1983 claim addressing the enactment of the Legacy Landfill Law (Count Three) is dismissed with prejudice because it is barred by the doctrine of legislative immunity. Plaintiffs' remaining Section 1983 claims (Counts One, Two and Six) are dismissed without prejudice for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs, however, are granted leave to file an amended complaint within thirty (30) days as to these Section 1983 claims (Counts One, Two, and Six) that they assert against the remaining Defendants.
(4) Plaintiffs' Declaratory Judgment claim (Count Ten) is dismissed with prejudice because the Court declines to exercise its discretion pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a).
(5) In the absence of a federal claim, the Court declines to exercise its supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' state law claims (Counts Four, Five, Seven, Eight, Nine and Eleven). Plaintiffs may reinstate their state law claims if they decide to file an amended complaint.
An appropriate order accompanies this Opinion.
