SCHENCK v. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Filing 10

OPINION. Signed by Judge Susan D. Wigenton on 5/6/2022. (qa, )

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DANIEL SCHENCK, AS EXECUTOR FOR
THE ESTATE OF CHARLETTE SCHENCK,

Case No. 22-00065 (SDW)(LDW)

Plaintiff,
v.

WHEREAS OPINION

DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

May 6, 2022

Defendant.
WIGENTON, District Judge.
THIS MATTER having come before this Court upon Defendant the New Jersey
Department of Environmental Protection’s (“Defendant” or “NJDEP”) Motion to Dismiss (D.E.
5) Plaintiff Daniel Schenck, as Executor for the State of Charlette Schenck’s (“Plaintiff”)
Complaint (D.E. 1) (“Compl.”)) pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1);
and
WHEREAS Plaintiff, a New Jersey resident, filed a Complaint against Defendant, a New
Jersey state agency, alleging one count of common law negligence under New Jersey state law
asserting, inter alia, that Defendant breached its duty owed to Plaintiff in failing to timely process
Plaintiff’s application for government financial assistance due to a declared national disaster.
(Compl. ¶¶ 27-31.); and
WHEREAS Defendant moved to dismiss the Complaint on the grounds that this Court
lacks subject matter jurisdiction over the Complaint because (1) Plaintiff has not properly invoked
the Court’s jurisdiction under 28 U.S.C. § 1331 or 28 U.S.C. § 1332 and (2) even if jurisdiction

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was properly invoked, Defendant, a New Jersey state agency, is entitled to sovereign immunity
under the Eleventh Amendment (See generally D.E. 5); and
WHEREAS a defendant may move to dismiss a complaint for lack of subjectmatter jurisdiction under Rule 12(b)(1) by challenging jurisdiction facially or factually.
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial
challenge to subject-matter jurisdiction “considers a claim on its face and asserts that it is
insufficient to invoke subject-matter jurisdiction of the court because, for example, it does not
present a question of federal law …” Id. at 358. In contrast, a factual challenge “is an argument
that there is no subject-matter jurisdiction because the facts of the case ... do not support the
asserted jurisdiction.” Id. In analyzing a facial challenge, “the court must only consider the
allegations of the complaint and documents referenced therein and attached thereto
....” Constitution Party of Pennsylvania, 757 F.3d at 348 (citing In re Schering Plough Corp.
Intron, 678 F.3d at 243). Whereas in considering a factual challenge to subject-matter jurisdiction,
the court “may look beyond the pleadings to ascertain the facts.”

Constitution Party of

Pennsylvania, 757 F.3d at 348. Furthermore, in considering a factual challenge to subject matter
jurisdiction, “the plaintiff’s allegations enjoy no presumption of truthfulness, and [the plaintiff]
bears the burden of establishing jurisdiction.” Meehan v. Taylor, No. CIV. 12–4079, 2013 WL
4517943, at *2 (D.N.J. Aug. 26, 2013) (first citing CNA v. United States, 535 F.3d 132, 139 (3d
Cir. 2008); then citing Mortensen v. First Fed. Sav. Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977));
and
WHEREAS a District Court has original jurisdiction over cases involving federal
questions or diverse parties.

See 28 U.S.C. §§

1331, 1332.

Pursuant to Section

1331, federal question jurisdiction exists where a claim arises under the Constitution, laws, or

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treaties of the United States. 28 U.S.C. § 1331. Pursuant to Section 1332, diversity jurisdiction
exists “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between– (1) [c]itizens of different States; (2) citizens of a State and citizens or
subjects of a foreign state …” 28 U.S.C. § 1332(a)(1) – (2). The United States Supreme Court
has interpreted 28 U.S.C. § 1332 to require complete diversity at the time the suit is filed. Dole
Food Co. v. Patrickson, 538 U.S. 468, 478, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003). To satisfy
the requirement of complete diversity, none of the plaintiffs may be a citizen of the same state as
any of the defendants. 28 U.S.C. § 1332; State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523,
531, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967); and
WHEREAS Defendant alleges that this Court lacks subject matter jurisdiction over the
Complaint because Plaintiff has not properly invoked the Court’s jurisdiction under 28 U.S.C. §
1331 or 28 U.S.C. § 1332. (D.E. 5 at 4-6.) The Court finds that Plaintiff has failed to satisfy either
statute. (See Compl. ¶¶ 29-31.) The Complaint has not alleged the violation of any constitutional
provision, law, or treaty of the United States because the sole count in Plaintiff’s Complaint is a
common law negligence claim brought under New Jersey state law. (See id.) Furthermore,
Plaintiff has failed to invoke diversity jurisdiction because all parties to the action are citizens of
New Jersey. (Id. at ¶¶ 1, 5-6.) Plaintiff is a citizen of New Jersey and Defendant is a New Jersey
state agency. (Id.) As a result, this Court lacks jurisdiction over the Complaint because neither
federal question jurisdiction nor diversity jurisdiction has been invoked by the Plaintiff; and
WHEREAS Defendant alleges that this Court lacks subject matter jurisdiction over the
Complaint because the Defendant is subject to New Jersey’s Sovereign immunity under the
Eleventh Amendment to the United States Constitution (D.E. 5 at 6-9); and

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WHEREAS the Eleventh Amendment to the United States Constitution prohibits “suits
brought in federal courts by [a State’s] own citizens as well as by citizens of another state” against
the State. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The principle
of sovereign immunity is a constitutional limitation on the federal judicial power established in
Article III, § 2 of the Constitution rendering non-consenting States immune from suits brought in
federal courts by private parties.

Id. at 98-101.

Importantly, the Eleventh Amendment

“encompasses not only actions in which a State is actually named as the defendant, but also certain
actions against state agents and state instrumentalities.” Regents of the University of California v.
Doe, 519 U.S. 425, 429 (1997). The Eleventh Amendment applies to “suits against subunits of
the State.” Haybarger v. Lawrence County Adult Probatiom and Parole, 551 F.3d 193, 198 (3d
Cir. 2008) (citing Pennhurst State School & Hosp., 465 U.S. at 100). Thus, “a suit may be barred
by the Eleventh Amendment even though a State is not named a party to the action, so long as the
State is deemed to be the real party in interest.” Haybarger v. Lawrence County Adult Probatiom
and Parole, 551 F.3d at 197-198 (citing Regents of the University of California, 519 U.S. at 429).
A sovereign’s immunity may be waived where the State’s consent is “unequivocally expressed.”
Id. at 99; and
WHEREAS the Eleventh Amendment immunity is subject to three primary exceptions:
“(1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers
for prospective injunctive and declaratory relief to end an ongoing violation of federal law.”
Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002);
and
WHEREAS this Court finds that Defendant, a New Jersey State agency, is subject to New
Jersey’s sovereign immunity under the Eleventh Amendment because Defendant has not consented

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to suit in this jurisdiction and Plaintiff has not pled any exceptions to Defendant’s immunity under
the Eleventh Amendment. (See generally Compl.) As a result, this Court lacks subject matter
jurisdiction over the Complaint because the Defendant is subject to New Jersey’s Sovereign
immunity under the Eleventh Amendment.
Accordingly, for the reasons set forth above, Defendant’s Motion to Dismiss (D.E. 5) is
GRANTED. Plaintiff’s Complaint is DISMISSED with prejudice. An appropriate order follows.

/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc:
Parties
Leda D. Wettre, U.S.M.J.

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