STRATEGIC ENVIORONMENTAL PARTNERS, LLC et al v. BUCCO et al
Filing
101
OPINION. Signed by Judge John Michael Vazquez on 5/4/16. (cm )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STRATEGIC ENVIRONMENTAL
PARTNERS, LLC, et al,
Civil Action No. 13-5032
Flainttffs,
OPINION
V.
SENATOR ANTHONY BUCCO, et a!,
Defendants.
John Michael Vazguez, U.S.D.J.
This matter comes before the Court on two separate motions to dismiss the Second
Amended Complaint of Plaintiffs Strategic Environmental Partners, LLC (“SEP”), Marilyn
Bernardi, and Richard Bernardi (collectively, “Plaintiffs”). As discussed further below, this case
concerns allegations that all the Defendants retaliated against Plaintiffs and illegally seized
Plaintiffs’ landfill. Defendants New Jersey State Senator Anthony R. Bucco (“Bucco” or “Senator
Bucco”), the New Jersey Department of Environmental Protection (“NJDEP”), NJDEP
Commissioner Bob Martin, and former NJDEP Deputy Commissioner Irene Kropp (collectively,
including Senator Bucco, the “State Defendants”) filed a motion to dismiss the Second Amended
Complaint. D.E.
4$1
Defendants Roxbury Township (“Roxbury”), Fred Hall, and Christopher
Raths (collectively, the “Roxbury Defendants”) joined the motion. D.E. 53. Defendant Atlantic
The State Defendants’ brief in support of their Motion to Dismiss, in which the Roxbury
Defendants join, will be referred to hereinafter as “Gov’t Br.” (D.E. 4$) and Plaintiffs’ opposition
to the State Defendants’ brief will be referred to hereinafter as “Gov’t Opp. Br” (D.E. 55).
Atlantic’s brief in support of its Motion to Dismiss will be referred to hereinafter as “Atlantic Br.”
(D.E. 49).
1
Response, Inc. (“Atlantic”) filed a separate motion to dismiss. D.E. 49. Plaintiffs opposed both
motions. D.E. 55, 57. On April 29, 2015, the Court entered an Order requiring the parties to
submit further briefing on issues raised by the parties in their motions. D.E. 76. As ordered, the
parties submitted supplemental briefing. D.E. 78-80, 82-83, 85-86. Because the motions raise
similar issues of law and fact, the Court will consider the motions to dismiss together. For the
reasons discussed below, both motions to dismiss are granted.
I.
BACKGROUND
A.
Factual Background2
This action arises out of a project (the “Project”) undertaken by SEP to remediate a landfill
in Roxbury Township, New Jersey. Plaintiff Marilyn Bemardi is the sole member of SEP and
Plaintiff Richard Bernardi is her husband and an “authorized agent” of SEP. Second Amended
Complaint (“SAC”)
¶J
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
¶J
13-14, 39-40. Shortly after
2
The factual background is taken from the Second Amended Complaint. When reviewing a
motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. fowler v.
UPMC Shadyside, 57$ F.3d 203, 210 (3d Cir. 2009).
Plaintiffs and the NJDEP are engaged in related litigation in the Superior Court of New Jersey.
See Strategic Envtl. Partners, LLC v. NJDEP, 43$ N.J. Super. 125 (App. Div. 2014). The
Appellate Division provided the following historical background, which this Court recites solely
for context. In 2010, SEP purchased the Fenimore Landfill with the plan to cap and close the
landfill and install a solar power generating facility. In October 2011, the NJDEP approved “a
closure and post-closure plan for the landfill, which required SEP to close and maintain the landfill
in accordance with the requirements of the Solid Waste Management Act (SWMA), N.J.S.A.
2
SEP acquired the property, Plaintiffs allegedly began to encounter opposition to the Project from
Senator Bucco, the NJDEP, and the Roxbury Defendants. Plaintiffs assert that, while SEP was in
the process of obtaining permits from NJDEP to proceed with the Project, Senator Bucco met with
Mr. Bernardi and “told Mr. Bernardi that all permit applications related to the Landfill would have
to be submitted through Senator Bucco’s office.” Id. at ¶ 49-52. SEP “ignored Senator Bucco’s
absurd demand.. and declined to involve Bucco in its remediation project.” Id. at ¶ 53. Plaintiffs
.
also refused to comply with Roxbury’s “demands,” that SEP “apply to the Township for
permission to undertake the remediation of the Landfill,” as SEP believed that permission from
the Township was not required. Id. at ¶ 54-5 5.
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
¶J 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
13:1E-l to -99.47.” Id. at 132. The plan also included “certain conditions and a plethora of other
plans, schedules and documents,” including what “fill material” SEP was permitted to use and how
SEP should address “malodorous emissions.” Id. at 132-33. The NJDEP and SEP also executed
an administrative consent order in October 2011, “which memorialized the closure plan.
and
permitted [the NJDEP] to terminate the closure plan unilaterally upon written notice to SEP and
take immediate action or seek injunctive relief to protect the public health, safety, or welfare.” Id.
at 133.
.
3
.
.
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” afler
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
¶J
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 ¶J 6 1-62.
Subsequently, Plaintiffs allege that Defendants took the following actions as part of their
efforts to “shut SEP down”:
•
Random Inspection and Injunction Application: In July 2012, the NJDEP
conducted a “random inspection’ of the trucks entering SEP’s Site which was in reality
a staged and premeditated arrangement to create the appearance that SEP was accepting
asbestos-containing-material,” (id. at ¶ 63), and unsuccessfully sought an injunction
against SEP on that basis (Id. at ¶ 69).
•
Truck Stops: Also in July 2012, in response to complaints from residents of Roxbury
about truck traffic related to the Project, “NJDEP, Township of Roxbury, Bucco and
Martin enlisted the services of the New Jersey State Police to pull over and detain all
trucks traveling to and from the Landfill.” Id. at ¶J 76, 79-20. SEP then obtained
injunctive relief “prohibit[ing] the NJDEP from taking any action to prevent SEP from
accepting Fill Material at the [Landfill].” Id. at ¶ 89.
•
Odor Complaints and Injunction Application: In November 2012, in response to
complaints from nearby residents about odor emanating from fill material at the
Landfill, the NJDEP and Roxbury applied for an injunction in the New Jersey Superior
Court that would prevent SEP from accepting additional fill material until such material
4
was adequately shielded with cover soil. Id. at ¶ 94. The Superior Court eventually
denied the injunction application. Id. at ¶ 95. In litigating the issue, however, SEP
submitted a Certification to the Superior Court alleging that a conflict of interest had
motivated the NJDEP’s application for the injunction. The alleged conflict of interest
arose because NJDEP Deputy Commissioner Irene Kropp was married to Brian Home,
owner of the Mullica Landfill in Harrison Township, New Jersey, a landfill that
allegedly competes with SEP for tipping fees. Id. at ¶ 97-100. SEP also filed a
complaint with the New Jersey State Ethics Commission regarding this alleged conflict
of interest in January 2013. Id. at ¶ 101.
•
New Year’s Eve Injunction Application to Judge Maenza: Because the NJDEP’s
previous injunction applications had been denied by Superior Court Judge Deanne
Wilson, Plaintiffs contend that Defendants conspired to seek relief from Judge Philip
Maenza, to whom Bucco “has close personal and political ties.” Id. at ¶ 105-108.
Specifically, Plaintiffs contend that “Bucco and Roxbury enhist[ed] the services of an
attorney, Daniel Marchese,” who presented Judge Maenza with a Verified Complaint
and application for an Order to Show Cause on behalf of Roxbury residents, without
notice to Plaintiffs, on New Year’s Eve of 2012. Id. at ¶ 113-115. Although Judge
Maenza signed the Order to Show Cause temporarily enjoining continuation of SEP’s
Project, on January 2, 2013, Judge Wilson issued an order dissolving the restraints
therein. Id. atJ 122.
•
Interference with SEP’s Efforts to Address Odor Complaints: Plaintiffs allege that
“Defendants intentionally and maliciously withheld permission for SEP to undertake
remedial action, and called upon the State Police to pull over and detain and deter trucks
carrying cover soil to the Site, while simultaneously encouraging residents to register
complaints about the odor.” Id. at ¶J 132-133.
•
The Roxbury Township Tax Assessor, “working in concert with
Defendants,” allegedly raised SEP’s taxes by over two thousand percent between 2012
and 2013. Id. at136.
•
In March 2013, Senator Bucco submitted proposed
legislation to the State Senate (S261 7) that would give the NJDEP authority to seize
SEP’s property. After being modified by the State Senate, the proposed legislation
contained “a broad, State-wide standard” limiting emissions of hydrogen sulfide (H2S),
the compound responsible for the odors emanating from the fenimore Landfill, for all
landfills within the state.4 The NJDEP and Martin then proposed amendments which
Tax Increase:
The Legacy Landfill Law:
The State Defendants clarify that on March 4, 2013, Senator Bucco was the primary sponsor of
a bill in the State Senate (S26l7) proposing that the NJDEP assume responsibility for “proper
closure of the Fenimore Landfill.” This bill was never acted upon. See Gov’t Br. at 9; see also
New
Jersey
Legislature
Bill
Search
S2617,
Database
for
http://www.njleg.state.nj.us/bills/BillsByNumber.asp (last visited May 2, 2016). On June 6,2013,
Bucco and State Senator Bob Smith co-sponsored a bill (S2861) that addressed legacy landfills in
general. This co-sponsored bill was eventually signed into law by Governor Chris Christie as the
5
were eventually adopted, and which limited the application of the new H2S standard
only to “a legacy landfill or closed sanitary landfill facility.” Id. at ¶ 138-144, 148.
Governor Chris Christie signed the bill into law on June 26, 2013 (the “Legacy Landfill
Law,” N.J.S.A. 13:1E-125.1 to -125.9). Id. at 148.
Emergency Order to Seize Control of the Site: Within a half hour of Governor
Christie signing the Legacy Landfill Law on June 26, 2013, the NJDEP served
Plaintiffs with an Emergency Order allowing the NJDEP to seize the Landfill, based
on alleged violations of the law’s new H2S standard. Id. at
149-15 1. Based on the
timing of the Emergency Order, Plaintiffs concluded that “the Governor’s office, Bob
Martin, Senator Bucco, Roxbury Township and the NJDEP had carefully coordinated
the timing of the Governor’s signing of the new law.” Id. at ¶ 151. The NJDEP also
issued a press release on the same day, “wherein Commissioner Martin stated, ‘The
DEP has pursued every legal and administrative remedy available to us to eliminate the
environmental and odor problems caused by the neglect of the property owner.” Id.
at ¶ 154. The NJDEP took control of the Landfill with the aid of New Jersey State
Troopers and “third party contractors including Defendant Atlantic Response, Inc.,”
and “immediately began bulldozing and re-grading SEP’s property.” Id. at ¶ 153.
Plaintiffs contend that NJDEP did not take readings of the H2S levels at the Landfill
prior to seizing and bulldozing the land. Id. at ¶ 159.
B.
Procedural History
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)(l) 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.
Legacy Landfill Law. See Gov ‘t Br. at 9; see also New Jersey Legislature Bill Search Database
for S2861, http://www.njleg.state.nj.us/bills/BillsByNumber.asp (last visited May 2, 2016).
6
Plaintiffs filed their hard to construe and sprawling Second Amended Complaint on August
8, 2014. Because Plaintiffs’ allegations are ofien unclear, the Court took significant pains to
interpret Plaintiffs’ pleading liberally and believes that Plaintiffs assert multiple federal and state
causes of action. Plaintiffs bring claims against all Defendants under 42 U.S.C.
§
1983 (“Section
1983”), seeking compensatory and punitive damages for violations of Plaintiffs’ rights under the
first Amendment, the Equal Protection Clause of the fourteenth Amendment, the Due Process
Clauses of the Fifih and Fourteenth Amendments, and the Just Compensation Clause of the Fifth
Amendment. SAC
¶J
173-85, 193-96. In addition, Plaintiffs bring state law claims against all
Defendants for violations of the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-1 et seq.;
common law conversion; tortious interference with contract; tortious interference with prospective
economic advantage; and conspiracy. Id. at ¶ 186-92, 197-210. Plaintiffs also allege that Bucco
and Kropp violated the New Jersey Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq. Id. at ¶J
2 13-15. Finally, Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C.
§
2201(a) that the
Legacy Landfill Law, N.J.S.A. 13:YE-125.1 to -.9, is “unconstitutional and of no force and/or
effect against Plaintiff for any act, omission or conduct which occurred prior to the enactment of
said bill on June 26, 2013.” Id. at
¶J 211-12.
The constitutional challenge is based on an alleged
violation of the New Jersey State Constitution rather than the United States Constitution.
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
7
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 ofjurisdiction. Id. at 3 1-32.
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 briefing. D.E. 76. The
Court ordered the parties to address whether Plaintiffs pled facts sufficient to establish that
Defendants’ conduct meets the “shocks the conscience” standard necessary to establish a
substantive Due Process violation. Id. at 4. Plaintiffs, the State Defendants, and the Roxbury
Defendants, if they chose to do so, were also ordered to address (1) the implication of the New
8
Jersey Superior Court, Appellate Division’s decision in Strategic Envtt. Partners, LLC v. NJDEP,
438 N.J. Super. 125 (App. Div. 2014) on Plaintiffs’ declaratory judgment claim; and (2) whether
good cause exists for the Court to exercise discretion to decline jurisdiction over Plaintiffs’
declaratory judgment claim. D.E. 76 at 4. As ordered, on May 15, 2015, the State Defendants
submitted a supplemental letter brief addressing the three topics (D.E. 78), and Atlantic and the
Roxbury Defendants submitted supplemental letter briefing addressing the “shocks the
conscience” standard. D.E. 79 (Atlantic), 80 (Roxbury Defendants). On May 29, 2015, Plaintiffs
submitted a supplemental letter brief in opposition to the Defendants’ supplemental briefing.
Plaintiffs’ letter brief, however, only addressed whether the Second Amended Complaint pled facts
sufficient to establish that Defendants’ conduct meets the “shocks the conscience” standard. D.E.
82.
On June 5, 2015, the State Defendants submitted a supplemental letter brief in reply to
Plaintiffs’ May 29 letter that addressed all three issues (D.E. 83), and the Roxbury Defendants
filed a reply letter that addressed the “shocks the conscience” standard. The Roxbury Defendants
also argued that the Court does not have subject matter jurisdiction to adjudicate Plaintiffs’ claim
regarding the allegedly improper tax assessment. D.E. $5. The Roxbury Defendants submitted an
additional letter brief on June 26, 2015 regarding the tax assessment issue. D.E. $6.
Since filing the instant matter, Plaintiffs initiated related New Jersey state court litigation.
First, on January 5, 2014, Plaintiffs filed an inverse condemnation claim in state court under the
Eminent Domain Act, N.J.S.A. 20:3-1 etseq. See Gov’t Br. at 24 n.$. 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 Envtt. Partners, LLC, 43$
9
N.J. Super. at 131. 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:YE-125.9.
Id. at 143. 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.5 Id. at 144-48. SEP appealed this decision, but the New Jersey
Supreme Court denied certification on March 16, 2015. 221 N.J. 21$ (N.J. 2015). Neither SEP
nor the NJDEP has given the Court any indication as to the current procedural posture of either
state court matter.6
II.
LEGAL STANDARD
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 Ludtttm Corp., 77 F.3d 690, 693 n.2 (3d
Cir. 1996) (“[TJhe Eleventh Amendment is a jurisdictional bar which deprives federal courts of
The New Jersey State Constitution provides that “the Legislature shall not pass any private,
special or local laws.” N.J. Const. art. IV, § VII. A law is unconstitutional special legislation
when, “by force of an inherent limitation, it arbitrarily separates some persons, places or things
from others upon which, but for such limitation, it would operate.” Town of Secauctts v. Hudson
Cty. Bd. of Taxation, 133 N.J. 482, 494 (N.J. 1993).
6
The Court notes that according to the New Jersey Courts Public Access website, the matter in
which Plaintiffs allegedly filed their inverse condemnation claim, Hoffman e. Strategic Enetl.
Partners, MRS-L-2621-13 (N.J. Super. Ct. Law Div.), was dismissed without prejudice on April
29, 2016. See http://njcourts.judiciary.state.nj.us/web 1 5z/ACMS PA/index.j sp (last visited May 3,
2016).
10
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 ‘11, 549 F.2d 884, $91
(3d Cir. 1977). “A facial attack concerns an alleged pleading deficiency whereas a factual attack
concerns the actual failure of a plaintiffs claims to comport factually with the jurisdictional
prerequisites.” Young v. United States,
2, 2015).
---
F. Supp. 3d
---,
2015 WL 9592442, at *5 (D.N.J. Dec.
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.” Gottld
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
(2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (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
11
her claims.” Id. at 789. A complaint that oniy 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 factual and
legal elements. fowler v. UPMCShadvside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, therefore, they are not entitled to an assumption
of truth. Bttrtch v. Mulberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint’s well-pleaded facts as true.” fowler, 578 F.3d at 210.
III.
DISCUSSION
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).
12
Accordingly, these claims will also be dismissed.
A.
Sovereign Immunity
The State Defendants argue that sovereign immunity bars all of Plaintiffs’ claims against
the NIDEP, 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.”7 Thorpe v. New Jersey, 246 F. App’x 86, 87 (3d
Cir. 2007) (quoting MCI Telecomm. Corp.
i’.
Bell AtL, 271 F.3d 491, 503-04 (3d Cir. 2001)). In
addition, suits against state officials acting in their official capacity are also barred by sovereign
immunity because “such a suit is no different from a suit against the State itself.” Grohs v. Yatauro,
984 F. Supp. 2d 273, 280 (D.N.J. 2013).
Although there are three exceptions to sovereign immunity, none apply in this case. First,
“Congress may abrogate state sovereign
Fourteenth Amendment.” Antonelli
v.
immunity
in the exercise of its power to enforce the
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 ourjurisdiction.” MCI Telecomm. Corp., 271 F.3d at 503-04. Plaintiffs
do not argue, and there is no indication that New Jersey waived its sovereign immunity here.
Under the third exception, the Ex Parte Young doctrine, “individual state officers can be sued in
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI.
13
their individual capacities for prospective injunctive and declaratory relief to end continuing or
ongoing violations of federal law.”8 MCI Telecomm. Corp., 271 F.3d at 506 (citing Ex Parte
Young, 209 U.S. 123, 159-60 (1908)). This action, however, only asserts claims for damages so
the third exception does not apply. See SAC Prayers for ReIief 1-3.
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., Shieldatloy
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.
figiteroa 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).9 Because the Court lacks jurisdiction
to hear any claims asserted against the NJDEP, and Martin and Kropp in their official capacities,
these claims will be dismissed with prejudice.
The Second Amended Complaint asserts claims against Martin and Kropp in their
S
The theory of the Ex Parte Yottng doctrine is that a claim for prospective relief for an ongoing
violation of federal law is “not an action against the state because the [alleged violation] would
strip the officer of his official authority.” MCI Telecomm. Corp., 271 f.3d at 506 (citing Pennhttrst
State Sc/i. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984)).
Plaintiffs do not argue and the Court finds no evidence to suggest that New Jersey waived its
sovereign immunity in enacting the NJCRA or the New Jersey Conflicts of Interest Law. See
N.J.S.A. 10:6-2, 52:13D-21 to -23; see also, e.g., Major Tours, Inc. v. Colorel, 720 F. Supp. 2d
587, 602 (D.N.J. 2010) (dismissing NJCRA claims asserted against state officials because the State
did not waive its sovereign immunity). Further, the Ex Farte Young exception to sovereign
immunity does not apply to state law claims. Balsam v. Sec y ofN.i, 607 F. App’x 177, 183 (3d
Cir. 2015) (dismissing state law claims for prospective injunctive relief against state official
because “E Pane Yottng’s exception to the Eleventh Amendment does not apply”).
‘
14
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.
B.
Section 1983
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 (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.” Iqbat, 556 U.S. at 676. 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 decision officially adopted and promulgated by that body’s officers.” Monell v. Dep ‘t ofSocial
Servs. ofNew York, 436 U.S. 658, 690 (1978).
Plaintiffs’ Section 1983 claims against the remaining Defendants will be dismissed for
failure to state a claim as discussed below.
1.
First Amendment Free Speech
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.”0 SAC ¶ 174. Plaintiffs allege that in November 2012, in response to the NJDEP and
10
The First Amendment provides that “Congress shall make no law. abridging the freedom of
speech.” U.S. Const. amend. I. The First Amendment has been interpreted beyond its plain
.
15
.
Roxbury’s “application for an order enjoining SEP from accepting any more CDS,” SEP submitted
a Certification from Richard Bemardi to the New Jersey Superior Court that brought to light a
conflict of interest at the NJDEP. Id. at ¶ 97. In the Certification, Mr. Bernardi claimed that Kropp
had a conflict of interest because her husband owned a landfill in southern New Jersey, the Mullica
Hill Landfill, that “like SEP’s property, earns tipping fees from the acceptance of fill material.”
Id. at
¶ 98. Mr. Bernardi’s Certification “cited specific examples of third-parties who delivered
CDS to both SEP and Mullica Hill.” Id. at
¶ 100. Plaintiffs therefore allege that if SEP was
ordered to stop accepting CDS, it would result “in an immediate and substantial financial benefit
to
[] Kropp by redirecting shipments of revenue-generating CDS from SEP’s property to the
Mullica Hill landfill owned by Kropp’s husband.” Id. at ¶ 99. Plaintiffs allegedly raised this same
conflict of interest in an Ethics Complaint that was filed in January 2013 with the New Jersey State
Ethics Commission. Id. at
¶
101. Mr. Bernardi’s Certification and the Ethics Complaint were
allegedly “lawful exercise[s] of Plaintiffs’ right to engage in free speech as guaranteed by the U.S.
Constitution.” Id. at ¶ 99, 103. Plaintiffs also allege that because they brought Kropp’s conflict
of interest to light, “the Defendant State Officials did, in fact, retaliate against Plaintiffs by further
obstructing Plaintiffs’ landfill redevelopment project.” Gov’t Opp. Br. at 14.
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
wording to guarantee the right to speak freely, and through the Fourteenth Amendment, applies to
states. Doe v. Banos, 713 F. Supp. 2d 404, 411 n.10 (D.N.J. 2010).
16
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
obscenity, ‘fighting words’ and libel
—
—
such as
all speech is protected by the First Amendment.”). At issue,
however, is what each Defendant is alleged to have done in retaliation, and whether Plaintiffs’
pleading sets forth facts sufficient to support the plausible inference of a causal connection between
the speech and the retaliatory action.
As noted above, to state a Section 1983 claim, Plaintiffs must allege each Defendant’s
personal involvement in the alleged violations. See Iqbal, 556 U.S. at 676; see also Rode v.
Detlarciprete, 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. 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; see also Morris v. Phila. Hotts. 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 [plaintiffs] Complaint suggest[ed] that [other Defendants] participated, directed, or were even
17
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.1’
As for Atlantic and Bucco, Plaintiffs plead no facts that even suggest they were aware of
Mr. Bemardi’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 F. App’x 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
Even if Plaintiffs do mean to assert a First Amendment claim against the Roxbury Defendants,
it would be dismissed pursuant to Rule 1 2(b)(6) because Plaintiffs’ pleading fails to establish each
of the Roxbury Defendants’ personal involvement in the alleged retaliation. See Iqbal, 556 U.S.
at 676; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
18
not appear in the Second Amended Complaint. Simply, there are no factual allegations (other than
conclusory terms) reflecting that Kropp engaged in any retaliatory acts. Plaintiffs’ conclusory
statements that all Defendants conspired to violate Plaintiffs’ civil rights,12 without any specific
facts alleging an agreement or concerted action, are not entitled to a presumption of truth. See
Brown v. Deparlos, 492 F. App’x 211, 215 (3d Cir. 2012) (“Without more, the bare allegation of
an agreement is insufficient to sustain a conspiracy claim.”). Thus, Plaintiffs fail to provide facts
that in anyway demonstrate that Kropp retaliated against them and the First Amendment claim is
dismissed as to Kropp.
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
¶J 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);
¶J 79-
$0 (alleging that Defendants, including Martin, requested that New Jersey State Police Troopers
pull over trucks traveling to the Landfill in July 2012). Consequently, “from the evidence gleaned
from the record as a whole the trier of the fact [cannot] infer causation.” Deflarninis, 480 F.3d at
12
See, e.g., SAC ¶ 106 (“Defendants conspired again to evade due process by going to their own
judge, Judge Maenza.”), ¶ 135 (“Defendants conspired to confiscate SEP’s property another way,
this time by changing the rules and using extra-judicial measures.”), ¶ 179 (“Each Defendant, in
concert and conspiracy with the other Defendants, intentionally violated the civil rights of the
Plaintiffs by their malicious and wanton disregard for Plaintiffs’ property rights.”).
19
267 (finding lack of causation where “[t]here is simply no basis in the evidence to link appellants’
campaign to secure funding.
.
.
and the District’s delay in satisfying or rejecting their requests”);
see also Kundratic v. Thomas, 407 F. App’x 625, 62$ (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.
2.
Equal Protection Violations
Plaintiffs also allege that Defendants violated their rights under the Equal Protection Clause
of the Fourteenth Amendment.’3 SAC
¶ 174. While not artfully pled, Plaintiffs appear to allege
that Defendants treated their Project differently than other landfill remediation projects in New
Jersey. See Gov’t
Opp.
Br. at 15. A plaintiff may proceed on a “class of one” Equal Protection
claim “where the plaintiff alleges that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 52$ U.S. 562, 564 (2000). To be similarly situated, “parties must be alike
in all relevant aspects.” Startzell v. City ofPhiladelphia, 533 F.3d 183, 203 (3d Cir. 2008).
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 CD S.” SAC
‘
¶J 97-98.
The Fourteenth Amendment states in relevant part: “nor shall any State. deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § I.
.
20
.
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 revenuegenerating CD$” 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. 14-449 1 (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
21
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), or that
any Defendant acted irrationally.14 Brick City, 2016 WL 1260019, at *5 (dismissing claim because
plaintiff pled no facts to plausibly support an inference that defendants acted arbitrarily). Plaintiffs
broad, conclusory statement that “Defendants’ actions were irrational and motivated by malice and
retribution” (Gov’t Opp. Br. at 15) is simply not enough to survive a motion to dismiss.
3.
Due Process Violations
Plaintiffs allege that Defendants violated their Fifth and Fourteenth Amendment rights to
Due Process. SAC
¶JJ
173-185. “Fifih Amendment [Due Process] protection only applies when
thefederal 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
14
Even assuming that Plaintiffs adequately pleaded they were treated differently than a similarly
situated landfill remediation project, Plaintiffs’ Equal Protection claim plainly fails as to the
Roxbury Defendants and Atlantic because Plaintiffs have not alleged that these Defendants have
any control over or interest in a landfill in Harrison Township. Therefore, based on the facts
currently before the Court, neither the Roxbury Defendants nor Atlantic could have treated
Plaintiffs differently than the Mullica Hill Landfill for the purposes of an Equal Protection claim.
22
component)5 Nicholas v. Penn. State Univ., 227 F.3d 133, 1 38-39 (3d Cir. 2000). Procedural
Due Process requires that state procedures for challenging the deprivation of a protected property
interest satisfy certain procedural requirements. DeBlasio v. Zoning 3d. ofAdjttstmentfor Tp. of
W. Arnwell, 53 F.3d 592, 597 (3d Cir. 1995), abrogated on other grounds, United Artists Theatre
Circttit, Inc. v. Tp. of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003). For a substantive Due
Process claim challenging the validity of non-legislative state action, a plaintiff must first establish
that it has a protected, fundamental property interest. Nicholas, 227 F.3d at 139-42. Next, a
plaintiff must establish that the state action is “arbitrary, irrational, or tainted by improper motive,
or if so egregious that it shocks the conscience.” Ctv. Concrete Corp. v. Town of Roxbwy, 442
F.3d 159, 169 (3d Cir. 2006).
a. Procedural Due Process
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, 178-18 1. 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, and initiated an inverse condemnation proceeding, see
5
The Fourteenth Amendment provides, in relevant part, “nor shall any State deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1.
23
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, to
the extent Plaintiffs do plead a procedural Due Process violation, it is dismissed for failure to state
a claim.
b. Legislative Immunity
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.16 SAC
¶
183. It is clear, and Plaintiffs do not
dispute, that legislators are entitled to absolute immunity for their legislative activities. See Baraka
v. McGreevey, 481 f.3d 187, 195-96 (3d Cir. 2007). Consequently, to the extent that Count Three
addresses acts that Bucco took in his legislative capacity, specifically, proposing, amending and
ratifying what ultimately became the Legacy Landfill Law, it will be dismissed as to Bucco
because he is immune. Plaintiffs, however, argue that much of Senator Bucco’s conduct falls
outside the scope of protected legislative action. Gov’t
Opp. Br. at
18-19. Bucco is not entitled
to immunity for the alleged non-legislative conduct, which is raised through others counts of the
pleading and will be addressed below.
16
A plaintiff may also assert a substantive Due Process claim challenging the validity of a
legislative act. In most cases, a legislative act will withstand substantive Due Process challenge if
it passes rational basis review. Civ. Concrete Corp., 442 f.3d at 169. Here, the Court does not
read Plaintiffs’ pleading as raising a facial Due Process challenge to the Legacy Landfill Law so
it will not address whether the law passes rational basis review.
24
Plaintiffs also allege that Martin proposed amendments to the Legacy Landfill Law. See
SAC
¶J 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 (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.
c. Substantive Due Process
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.17 Gov’t Opp. Br. at 10-11; Plfs’ May 29, 2015 Supplemental Letter Brief at 3. Plaintiffs
assert that the fundamental interests at issue here are their “right to be free from harassment in
their land development efforts.” Gov’t Opp. Br. at 9. The “right to be free from harassment” in
17
The Court will not address Plaintiffs’ allegation that they “suffered substantial harm to their
reputation” because Martin attributed the odor problems at the Landfill to SEP’s neglect (Gov’t
Opp. Br. at 11-12) because Plaintiffs cannot amend their complaint through a brief frederico v.
Home Depot, 507 F.3d 188, 201 (3d Cir. 2007). Plaintiffs certainly referenced Martin’s statements
in their pleading, but they failed to allege an injury to their reputation raising the issue for the
first time in their briefing.
Similarly, the Court will not accept Plaintiffs’ allegation that
Defendants “acted corruptly in taking action to shut down SEP’s landfill remediation project for
the sole purpose of increasing profits for the NJDEP Deputy Commission’s family’s competing
landfill.” Plfs’ May 29, 2015 Supplemental Letter Brief at 3. Again, although Plaintiffs’ pleading
mentions Kropp’s connection to Mullica Hill, it fails to explain why the NJDEP seized the Landfill
or that the decision to seize the Landfill was corrupt.
—
25
land development efforts is an interest entitled to substantive Due Process protection.
Concrete Corp., 442 F.3d at 170.
Cty.
Real property ownership is also entitled to Due Process
protection. DB Enter. Developers & Builders, Inc. v. Micozzie, 394 F. App’ x 916, 912 (3d Cir.
2010) (citing Nicholas, 227 F.3d at 141).
Thus, in this instance the interests at issue are
fundamental and entitled to substantive Due Process protection.
As stated above, for conduct to rise to the level of a substantive Due Process violation, it
must shock the conscience. UnitedArtists. 316 F.3d at 399-402. The “shocks the conscience” test
is “not precise,” but it is a high bar
official conduct.” Eichenlaub
V.
--
“[w]hat shocks the conscience is only the most egregious
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
con-uption, self-dealing, ethnic bias, or interference with an otherwise protected constitutional
activity. Eichenlattb, 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 plaintiffs land development
project did not shock the conscience. 394 F. App’x at 9 19-20. Notably, improper motive alone is
not enough to shock the conscience. See Locttst Valley Golf Club, Inc. v. Upper Saitcon Tp., 391
26
F. App’x 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 taxes18
are all very similar to the alleged conduct in Eichenlattb. See 385 F.3d at 286. In Eichenlaub, the
similar conduct did not amount to a substantive Due Process claim. Id. (concluding that “the
misconduct alleged here does not rise sufficiently above that at issue in a normal zoning dispute
to pass the ‘shocks the conscience test”); see also Warren, 2013 WL 1164492, at *10_li (finding
that conduct including delayed and denied applications to town committees, unannounced and
unnecessary inspections, and retaliation did not “shock the conscience”).
The remaining allegation, that Defendants19 seized Plaintiffs’ property pursuant the
Emergency Order also does not shock the Court’s conscience. Plaintiffs allege that Martin seized
18
Plaintiffs are barred from seeking money damages through a Section 1983 claim that challenges
the validity of a local tax assessment. Reagle v. Elliot, 80 F. App’x 737, 738 (3d Cir. 2003); see
also Bhtebeard’s Castle, Inc. v. Gov’t of Virgin Islands, 321 F.3d 394, 397 (3d Cir. 2003) (“[T]he
importance to the states of their tax systems is such that comity mandates that federal courts are
ordinarily powerless to entertain challenges to state taxation, even under 42 U.S.C. § 1983.”). The
proper course of action, of which Plaintiffs appear to have availed themselves of (see D.E. 86), is
to challenge the assessment through the New Jersey Tax Court. Reagle, 80 F. App’x at 73$.
‘
Because Plaintiffs’ Second Amended Complaint fails to allege that Bucco, Kropp, or the
Roxbury Defendants were personally involved in issuing the Emergency Order and seizing the
land, the Court will only address the substantive Due Process claim with regards to Martin and
Atlantic’s conduct. See Iqbal, 556 U.S. at 677.
27
control of their property pursuant to an Emergency Order, based upon alleged violations of the
newly signed Legacy Landfill Law. SAC
¶J 149-150,
153. The NJDEP issued a press release the
same day it seized the land, “wherein Commissioner Martin stated, ‘The DEP has pursued every
legal and administrative remedy available to us to eliminate the environmental and odor problems
caused by the neglect of the property owner.” Id. at
¶
154. Plaintiffs contend that NJDEP had
taken no readings of H2S levels at the Site prior to the seizure and that upon entering the Site,
Atlantic began regrading and bulldozing the land. Id. at ¶ 153, 159.
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-dealing20 (see, e.g., Dev. Grp., LLC v. Franklin Twp.
Bd. of Supervisors, 162 F. App’x 158, 160 (3d Cir. 2006) (affirming decision that conduct did not
shock the conscience, in part, because plaintiffs failed to provide evidence to support allegation of
self-dealing)), acted irrationally (see, e.g., Toll Bros, Inc. v. Township of Moorestown, No. 104843, 2011 WL 2559507, at *9 (D.N.J. June 27, 2011) (dismissing substantive Due Process claim
because even if defendants’ “efforts at every turn may have been arbitrary, irrational, and tortious,
the facts alleged do not rise to the level of.
.
.
shock[ing] the judicial conscience”)), or intended to
unjustifiably injure Plaintiffs in a manner that was unrelated to a legitimate governmental purpose
(see, e.g., Skiles e. City ofReading, 449 F. App’x 153, 15$ (3d Cir. 2011) (concluding that alleged
conduct did not shock the conscience, in part, because the mayor instituted a policy with legitimate
20
Although Plaintiffs allege that Kropp had a financial interest (drumming up business for her
spouse’s landfill in southern New Jersey) in shutting down the Project (SAC ¶ 98-99), Plaintiffs
fail to allege that Kropp was personally involved in issuing the Emergency Order or seizure.
28
governmental interest)).2’
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 21 5-paragraph complaint. As discussed, Plaintiffs allege that when the NJDEP seized the
Landfill, Atlantic accompanied the NJDEP agents and “unloaded heavy equipment and machinery
and immediately began bulldozing and re-grading SEP’s property.” SAC
¶ 153. This bare factual
allegation does not even come close to establishing that Atlantic was a state actor, which is
necessary for Section 1983 liability, or that Atlantic’s conduct was egregious enough to amount to
a substantive Due Process violation. See Benn v. Universal Health 5ys., Inc., 371 F.3d 165, 170
(3d Cir. 2004) (“To establish a claim under
§ 1983, [Plaintiff] must show that the defendants 1)
were state actors who 2) violated his rights under the Constitution or federal law.”).
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
21
The Appellate Division ultimately determined that the NJDEP exceeded its authority under the
Legacy Landfill Law, finding that the NJDEP could not seize the Landfill unless the seizure was
first approved through judicial action. Strategic Envtl. Partners, LLC, 43$ N.J. Super. at 131. Yet,
the Appellate Division made no finding that the NJDEP’s action was outrageous or shocking.
29
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, Bttckland, 466 F. Supp. 2d 1059, 1069-70 (S.D. md. 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. l0-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 Nicollette 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” plaintiffs business was a “close question,” but did “irnplicate{] 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
30
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 plaintiffs alleged that the government conduct had no rational governmental
purpose. No. 06-501, 2006 WL 2583754, at *5 (W.D. Pa. Sept. 7, 2006). Plaintiffs make no
similar allegation here.
Because Plaintiffs fail to plead facts alleging conduct that passes the shocks the conscience
test, Plaintiffs’ Fourteenth Amendment Substantive Due Process claim is dismissed.
4.
Deprivation of Property Without Just Compensation
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
¶J 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 Fifih Amendment proscribes the taking of property without just compensation. U.S.
Const. amend. V.22 The takings prohibition “appl[ies] to state and local governments through the
Fourteenth Amendment.” Toll Bros., Inc., 2011 WL 2559507, at *13. The Fiflh Amendment,
however, does not require payment at the time of the taking. Rather, it requires that “a reasonable,
certain and adequate provision for obtaining compensation exists.” Chainey v. Street, 523 F.3d
200, 223 (3d Cir. 2008). If such a provision exists, “no constitutional violation occurs until just
compensation has been subsequently denied.” Id. As a result, “a plaintiff cannot claim a violation
22
The Fifih Amendment provides “nor shall private property be taken for public use, without just
compensation.” U.S. Const. amend V.
31
of the Just Compensation Clause until he or she has exhausted a state’s procedure for seeking just
compensation.” Cty. Concrete Corp., 442 F.3d at 168.
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.$. As a result, Plaintiffs’ Just Compensation claim is dismissed
because it is not yet ripe. Toll Bros, 2011 WL 2559507, at * 13 (citing Fedttto v. City of Wildwood,
696 F. Supp. 1004, 1009 (D.N.J. 198$)).
5.
Section 1983 Conspiracy
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 Cottrt of N.i, 58$ 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 F. App’x 595, 599 (3d Cir.
2010) (“[T]he District Court properly granted summary judgment on White’s conspiracy claims
because White carmot 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 forth facts to establish an agreement or
concerted action. Therefore, the Section 1983 conspiracy claim also fails on these grounds. See
Martinez v. New Jersey, No. 11-2223 (SDW)(MCA), 2012 WL 2116407, at *6 (D.N.J. June 11,
32
2012) (“Simply alleging ‘agreement’ without facts from which that agreement can be inferred is
insufficient.”).
6.
Qualified Immunity
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
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).
C.
Declaratory Judgment
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.”
Refer 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 (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
33
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.
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. 21$
(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, 136 S. Ct. 463, 468 (2015)
(“[W]e recognize that California courts are the ultimate authority on that [California] law.”); Doe
v. Sttndqitist, 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
[J statute”); flowers v.
Phelps, 514 F. App’x 100, 104 (3d Cir. 2013) (affinTling
judgment on the pleadings because “the Delaware Supreme Court has already determined that [the
rule] is inappropriate for Delaware, and any cognizable challenge to the ruling must be filed in
Delaware’s state courts” (internal quotations omitted)); see also Trump Hotels & Casino Resorts,
Inc. v. Mirage Resorts Inc., 140 F.3d 47$, 487 (3d Cir. 199$) (affirming district court’s refusal to
exercise supplemental jurisdiction over state law claim due to “a complex issue of state law which
is better left to the New Jersey courts to determine”). As a result, the Court will exercise its
discretion and dismiss Count Ten.
D.
Supplemental Jurisdiction
34
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 (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.” 2$ 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 ofSea 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.
IV.
CONCLUSION
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.
35
(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.
Dated: May 4, 2016
John Michael Vazquez,
36
.S. .J.
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