Deptford Commons, LLC v. Twp. of Deptford

Docket NumberCivil 22-4931 (RMB/EAP)
Decision Date29 August 2023
PartiesDEPTFORD COMMONS, LLC, et al., Plaintiffs, v. TOWNSHIP OF DEPTFORD, et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey


DEPTFORD COMMONS, LLC, et al., Plaintiffs,

TOWNSHIP OF DEPTFORD, et al., Defendants.

Civil No. 22-4931 (RMB/EAP)

United States District Court, D. New Jersey

August 29, 2023


DeSimone Law Offices, LLC, By: John G. DeSimone, Esq., On behalf of Plaintiffs Deptford Commons, LLC, Malachite Group Ltd., and Manouchehr Malekan

Madden & Madden, P.A., By: Michael V. Madden, Esq., On behalf of Defendants Township of Deptford, Deptford Township Combined Zoning and Planning Board of Adjustment, Paul Medany, Debbie Simone, Dina L. Zawadski, Christian Romano, Linda Tramo, and Tom Newman, Sr.

Archer & Greiner, P.C., By: Peter L. Frattarelli, Esq. and Meghan N. O'Brien, Esq. and


Hill Wallack LLP, By: Gerard H. Hanson, Esq., On behalf of Defendants Deptford Fire District, Office of the Fire Marshal, and Francis E. Pote.


RENEE MARIE BUMB, Chief United States District Judge:

This matter comes before the Court upon the Motion to Dismiss filed by Defendants Township of Deptford, Deptford Township Combined Zoning and Planning Board of Adjustment, Paul Medany, Debbie Simone, Dina L. Zawadski, Christian Romano, Linda Tramo, and Tom Newman, Sr. (the “Township Defendants”) and the Motion to Dismiss filed by Defendants Deptford Fire District, Office of the Fire Marshal, and Francis E. Pote (the “Fire District Defendants”) pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).[1]Plaintiffs Deptford Commons, LLC, Malachite Group Ltd., and Manouchehr Malekan (“Plaintiffs”) oppose the Motions.[2] No oral argument was heard pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1(b). For the reasons expressed below, and because Plaintiffs have failed to sufficiently allege facts that, when taken as true, could establish that any of the Defendants violated Plaintiffs' federal constitutional rights in


this land use dispute, the Court must dismiss Plaintiffs' federal constitutional claims without prejudice and decline to exercise supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(c)(3). Accordingly, the Motions will be GRANTED, and the Amended Complaint will be DISMISSED, WITHOUT PREJUDICE, except that Count V will be DISMISSED, WITH PREJUDICE.


Plaintiffs Deptford Commons, LLC and Malachite Group Ltd. own and manage a commercial property located at 1800 Clements Bridge Road in Deptford, New Jersey (the “Property”). [Am. Compl. ¶ 36.] Plaintiff Manouchehr Malekan is the managing member of both entities, and Plaintiffs collectively control seventy-five percent (75%) of the ownership interest in the Property. [Id. ¶¶ 2, 5, 6.] The Property itself is a shopping center containing a variety of businesses, including, for example, Ollie's Bargain Outlet. [Id. ¶¶ 38, 66.] On April 25, 2022, Plaintiffs entered into an agreement to lease part of the Property to Buy-Rite Builders Surplus, LLC (“BuyRite”), a “discount home improvement supply clearing house selling its product to the retail purchaser.” [Id. ¶¶ 36, 40.] The leased space is zoned “B-2”-in other words, permitting the lessee to sell retail merchandise. [Id. ¶ 38.] The prior tenant was a PetSmart store. [Id. ¶ 40.] On May 23, 2022, Buy-Rite, as the prospective tenant, applied to Deptford Township for a conditional use permit to occupy the leased space. [Id. ¶ 40.] Buy-Rite's application, however, was denied on May 26, 2022. [Id. ¶ 52.]


Denying Buy-Rite's application on the Township's behalf, Debbie Simone, a zoning officer and technical assistant, and Paul Medany, Mayor of Deptford Township, apparently made a series of oral statements explaining their rationale. [Id. ¶¶ 10, 13, 42.] They did not issue a written decision. [Id. ¶ 41.] Mayor Medany allegedly stated that the Property was a “blight” on the Township and that until it is “cleaned up,” the Township “would not approve any new tenant to occupy the Property.” [Id. ¶¶ 45, 46-47.] Ms. Simone stated simply that Buy-Rite's application would not be approved “at their discretion.” [Id. ¶ 43.] After its application was denied, Buy-Rite chose not to appeal before the Deptford Combined Zoning and Planning Board of Adjustments and leased space elsewhere. [Id. ¶ 57.]

As illustrated by the allegations in the Amended Complaint, Plaintiffs and the Township have a strained relationship. Recently, for instance, the Township issued a $405,000.00 fine to Plaintiffs for violating various ordinances and permitting the Property to fall into disrepair. [Id. ¶¶ 48-50, 61.] The fine has been the subject of ongoing litigation between the parties in municipal and state courts. [Id.] Additionally, Buy-Rite's denial is not the first time one of Plaintiffs' prospective tenants was rejected by the Township. Plaintiffs generally refer to disputes regarding ordinance violations and the Township's denial of certificates of occupancy, use variances, and permit applications related to the Property. [Id. ¶¶ 58-59.] At bottom, Plaintiffs suggest that the denial of Buy-Rite's application is part of a pattern of unequal treatment of Plaintiffs due to Defendants' “ongoing vendetta” against, and “personal disdain” for, Mr. Malekan. [Id. ¶¶ 60, 68; see also id. ¶¶ 67, 69-72.]


Furthermore, Plaintiffs assert that Defendants' conduct is motivated, at least in part, by anti-Semitism. [Id. ¶ 77.] Plaintiffs base this accusation principally on a Notice of Imminent Hazard and Order to Take Corrective Action (the “Hazard Notice”) that the Fire District Defendants served on September 26, 2022 during Rosh Hashanah, the Jewish New Year. [Id. ¶¶ 77-81.] The Hazard Notice identified five (5) fire safety violations at the Property, directed Plaintiffs to close access to the Property by September 28, 2022 so some of its fire hydrants could be replaced, and required abatement of the violations by the same date. [Id. ¶ 81; see also Docket No. 14-1, Exs. A, E.] Mr. Malekan, who is a Jew of Iranian descent, alleges that the timing of the Hazard Notice illustrates anti-Semitism on the part of Mayor Medany, other unspecified representatives of the Township, and the Fire District Defendants. [Am. Compl. ¶¶ 2, 5, 77.] He also contends that the Hazard Notice was an unnecessary disruption to Rosh Hashanah because the replacement work had already been scheduled. [Id. ¶¶ 75, 77-78, 80.]

As further background, in August 2022, Plaintiffs had discovered water leaks at the Property resulting from the deterioration of underground pipes. [Id. ¶ 74.] Plaintiffs had been working with the Deptford Township Municipal Utilities Authority, the Fire District, and a contractor to repair and replace the leaking valves, which required the Property to be closed intermittently during the evening. [Id. ¶¶ 7476.] Additional work was scheduled to be performed on September 28, 2022. [Id. ¶ 80.] Plaintiffs apparently appealed the issuance of the Hazard Notice on September


27, 2022 before the Construction Board of Appeals for the County of Gloucester, [id. ¶ 87], which resulted in additional litigation in state court, [see id. ¶¶ 92-98].

Before the appeal was heard, however, Fire Marshal Pote directed tenants at the Property to vacate the premises by 9:00 a.m. on September 28, 2022, or they would be arrested. [Id. ¶ 88.] Fire Marshal Pote, or another representative of the Fire District, apparently communicated false information to some tenants that Plaintiffs had failed to pay their water bills, so the Property would be closed for months. [Id. ¶ 89.] Shortly after this time, anti-Semitic statements and images were found at the Property, including a construction cone bearing a swastika. [Id. ¶ 96.[3]

Plaintiffs initiated this litigation on August 5, 2022. [Compl., Docket No. 1.] On December 5, 2022, Plaintiffs filed the Amended Complaint. [Am. Compl., Docket No. 14.] Based on the foregoing facts, Plaintiffs assert that the Township Defendants and the Fire District Defendants violated their rights under the Constitution and laws of the United States and the State of New Jersey. [Id. ¶ 102.] Specifically, Plaintiffs assert that Defendants' conduct constitutes an unlawful takings of the Property without just compensation (Count I),[4] “malicious infliction of extreme mental


anguish” (Count II), negligence (Count III), a violation of Plaintiffs' substantive and procedural due process rights, and equal protection (Counts I and VI), tortious interference with contract (Count VIII), and an “illegal eviction by third party” (Count IX). [Id. ¶¶ 104-14, 119-27, 130-40.] Plaintiffs also seek affirmative injunctive relief against Defendants-namely, to issue a conditional use permit to Buy-Rite “unless they have a legitimate legal reason for withholding it” (Count IV)-and the appointment of a special master “to control the wanton reckless actions and fines imposed by the municipality against the Plaintiffs” (Count V). [Id. ¶¶ 115-18.] Plaintiffs bring this action pursuant to 28 U.S.C. §§ 1331 and 1343 and “the rules of pendant jurisdiction,” which the Court construes to mean 28 U.S.C. § 1367. [Id. ¶ 32.] Plaintiffs assert their claims pursuant to 42 U.S.C. §§ 1983 and 1988. [Id.]

On January 18, 2023, the Township Defendants filed their Motion to Dismiss, [Docket No. 22], and on February 24, 2023, the Fire District Defendants filed their Motion to Dismiss, [Docket No. 35]. They both seek to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiffs lack standing to bring this action, that Plaintiffs have failed to state a claim upon which relief could be granted, and that a variety of other substantive and procedural reasons bar Plaintiffs' claims. [See generally Twp. Defs.' Br.; Fire District Defs.' Br.] Plaintiffs filed their respective Oppositions on February 17 and March 3, 2023. [Docket Nos. 31, 38.] As the Motions are fully briefed, they are ripe for adjudication.




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