J & A REALTY v. City of Asbury Park

• Citation: 763 F. Supp. 85
• Decision Date: 18 April 1991
• Docket Number: Civ. A. No. 89-4355 (JCL).
• Court: U.S. District Court — District of New Jersey
• Parties: J & A REALTY, a New Jersey Partnership, Plaintiff, v. CITY OF ASBURY PARK, et al., Defendants.

763 F. Supp. 85

J & A REALTY, a New Jersey Partnership, Plaintiff, v. CITY OF ASBURY PARK, et al., Defendants.

Civ. A. No. 89-4355 (JCL).

United States District Court, D. New Jersey.

April 18, 1991.

Jeffrey Kantowitz, Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Woodbridge, N.J., for plaintiff.

Robin S. Perry, Steinberg & Fellenz, Asbury Park, N.J., for defendants.

OPINION

LIFLAND, District Judge.

Plaintiff, J & A Realty ("J & A"), moves to strike defenses. Defendants oppose the motion.

BACKGROUND

In 1988, the City of Asbury Park ("the city") enacted an ordinance which established the city sewer system as a self-liquidating municipal utility. To fund its new sewer plant, the city passed a sewer ordinance which established a system for assessing property owners for sewer charges. Prior to that time, the city provided its property owners with sewer service which was billed as a part of the owner's municipal property taxes. The new charges are based upon two factors: 1) an annual flat charge based upon the size of the user's water meter; and 2) a gallonage rate based upon the number of gallons of water consumed by the property.

J & A owns property in Asbury Park, which it leases to a corporation operating a commercial laundry on the site. J & A failed to pay the sewer charges for the years 1988 through 1990. Pursuant to the ordinance, the delinquent payments became a lien on the property. Due to J & A's failure to pay its 1988 and 1989 sewer charges, the city imposed a lien upon the property and sold the lien in a tax sale. J & A filed an unsuccessful administrative appeal with the Sewer Utility Appeals Board. In October of 1989, J & A filed a complaint in this court, challenging the constitutionality of the ordinance. J & A alleges that the ordinance fails to account for the strength and volume of the user's wastewater, and that the charges bear "no reasonable relation" to the amount of service provided. See Complaint, Count 1. In Count 2, J & A alleges that the ordinance denies equal protection of the laws in violation of the federal and New Jersey Constitutions by distinguishing between water meter sizes as a means to assess sewer charges. In Count 3, J & A alleges that the sewer rentals, the lien and the resultant tax sale constitute a taking of private property for public use without just compensation in violation of the 5th amendment and ¶ 20 of Article 1 of the New Jersey Constitution. In Count 4, J & A alleges that defendants' actions taken under color of state law and or pursuant to governmental policy deprived J & A of its rights to substantive and procedural due process, equal protection and just compensation contrary to 42 U.S.C. § 1983. J & A sues the following (hereinafter referred to as "defendants"): the city of Asbury Park; William Black, the city's "Director of the Sewer Tariff"; Helen Pride, the city's tax collector; Garrett Giberson, the city's Deputy Director of Public Maintenance; and Katherine Knox, the city's Sewer Utility Collection Clerk. J & A seeks: to have the ordinance declared null and void; a permanent injunction against the enforcement of the ordinance; rescission of all sewer bills; monitoring of the discharge from J & A's premises; a declaration that all liens on its property are null and void; a permanent injunction against the collection of sewer charges; and damages, interest and costs.

J & A moves to strike the following defenses:

1st Defense — that J & A fails to state a cause of action upon which relief can be granted;

2nd Defense — that the court lacks jurisdiction to hear the case due to the Johnson Act;

3rd Defense — that defendants are entitled to immunity pursuant to the New Jersey Tort Claims Act;

5th Defense — that defendants did not proximately cause any deprivation of plaintiff's rights;

6th Defense — that any damages were a result of plaintiff's own unlawful actions;

7th Defense — that defendants lack willfulness;

8th Defense — that defendants acted reasonably and without malice; and

9th Defense — that defendants' negligence was not the proximate cause of plaintiff's damages.

DISCUSSION

Federal Rule of Civil Procedure 12(f) permits a court, upon motion by a party, to strike an "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter". Rule 12(f) motions are disfavored, especially in the absence of prejudice. Abrams v. Lightolier, Inc., 702 F.Supp. 509, 511 (D.N.J.1988) (citations omitted). A motion to strike is not granted unless the insufficiency of a defense is "clearly apparent". Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986).

First Defense

Defendants assert that J & A fails to state a cause of action upon which relief can be granted. J & A argues that it has stated a cause of action under 42 U.S.C. § 1983 by alleging that defendants' conduct under color of state law violated plaintiff's constitutional rights. Defendants reply that the court should sustain any possible defenses.

J & A alleges that the ordinance violates numerous provisions of the federal and state constitutions, as well as § 1983. Plaintiff has a heavy burden on this issue, and the insufficiency of this defense is not "clearly apparent". Therefore, the court will not strike defendants' first defense.

Second Defense

Defendants assert that the court lacks jurisdiction pursuant to the Johnson Act, 28 U.S.C. § 1342, which provides:

The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:

(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,

(2) The order does not interfere with interstate commerce; and,

(3) The order has been made after reasonable notice and hearing; and

(4) A plain, speedy and efficient remedy may be had in the courts of such State.

Where all four requirements of the Johnson Act are satisfied a court may not exercise jurisdiction over a claim for injunctive relief against a municipal rate-making body. Zucker v. Bell Telephone Co., 373 F.Supp. 748, 755 (E.D.Pa.1974), aff'd without opinion, 510 F.2d 971 (3d Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); Louisiana Power & Light Co. v. Ackel, 616 F.Supp. 445 (M.D. La.1985); Kalinsky v. Long Island Lighting Co., 484 F.Supp. 176 (E.D.N.Y.1980). "The Johnson Act expresses Congress' intent that, absent special circumstances, state utility rates are a matter for state regulation." South Central Bell Telephone Co. v. Public Service Comm'n, 420 F.Supp. 376, 378 (E.D.Ky.1976). Those four requirements will now be considered.

Jurisdiction. J & A bases this court's jurisdiction upon defendants' violations of J & A's constitutional rights, under both the federal and state constitutions, and 42 U.S.C. §§ 1981, 1983. See complaint at ¶ 7. J & A argues that its allegation that defendants have violated 42 U.S.C. § 1983 constitutes a "statutory" claim based on federal law which precludes the application of the Johnson Act, since jurisdiction is not based "solely" upon the ordinance's repugnance to the Federal Constitution. The court disagrees. A plaintiff may not use § 1983 as an "end run around the Johnson Act". Peoples Nat'l Utility Co. v. Houston, 837 F.2d 1366, 1368 (5th Cir.1988); Louisiana Power & Light, 616 F.Supp. at 447; Kalinsky, 484 F.Supp. 176; South Central Bell Telephone Co., 420 F.Supp. 376; Zucker, 373 F.Supp. 748; Tennyson v. Gas Service Co., 367 F.Supp. 102, 104 (D.Kan.1973), aff'd, 506 F.2d 1135 (10th Cir.1974).

J & A argues that it does not challenge the rates charged by the city. Instead, it argues that it challenges the "components and application of the rate ... and the City's failure to distinguish between the types of users, as explicitly provided by ordinance, when applying the rate". See Plaintiff's reply brief at 4. Moreover, J & A asserts that no entanglement into state regulated utilities will result from its challenge to the ordinance, since it seeks relief "directly from the municipality for a determination and function — establishment of a rate structure as distinct from mere adjustment of rates ...". Id. The court fails to see the import of this attempted distinction. The Johnson Act clearly precludes a federal court from exercising jurisdiction over challenges to rate-setting ordinances where injunctive relief is sought. See Non-Resident Taxpayers Ass'n v. Philadelphia, 478 F.2d 456 (3d Cir.1973).

Therefore, the first requirement for applicability of the Johnson Act is satisfied, since J & A bases federal jurisdiction solely upon the ordinance's alleged repugnance to the Federal Constitution.

Interstate Commerce. The court concludes, and J & A does not argue to the contrary, that the city's sewer ordinance does not interfere with interstate commerce.

Notice and Hearing. The Johnson Act requires that the ordinance be passed after reasonable notice and a hearing. Since defendants assert that the ordinance was passed after reasonable notice and a hearing, and J & A does not argue to the contrary, the court concludes for the purposes of this motion that this requirement is met.

State Court Remedy. The city argues that J & A could have brought its claim for injunctive relief in state court, particularly under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. State courts are capable of interpreting a plaintiff's constitutional claims, which gives rise to doctrines by which federal courts abstain from exercising jurisdiction in the interests of comity. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (abstention where claims can be presented to a state administrative agency). J & A had a speedy and efficient...