Jones v. Township of North Bergen

Citation331 F. Supp. 1281
Decision Date30 September 1971
Docket NumberCiv. A. No. 890-69.
PartiesCharlotte JONES et al., Plaintiffs, v. The TOWNSHIP OF NORTH BERGEN et al., Defendants.
CourtU.S. District Court — District of New Jersey

Clarick & Clarick, New Brunswick, N. J., for plaintiffs, by Donald S. Engel, New York City.

Sidney Turtz, West New York, N. J., for defendants Theodore Doll and Robert White.

Charles Landesman, Deputy Atty. Gen. for N. J., for defendants Hudson County Board of Taxation, John P. Botti, Carl A. Ruhlman, John F. Wilkins, John J. Barry, Gerard F. Brill, David Nicoll.

Darling & Jobes, Jersey City, N. J., for defendants Realty Appraisal Co. and Joseph Rubenstein, by Edward Heyd, Jersey City, N. J.

Nicholas S. Schloeder, Union City, N. J., for Township of North Bergen, Angelo J. Sarubbi, Joseph J. Jinaldi, Charles J. Steinel, Charles J. Weaver, George Burger, Louis E. Della Torre, Edward D. Grosso.

OPINION

SHAW, District Judge.

Plaintiffs bring this action as a class action pursuant to Rule 23 F.R.Civ.P. on behalf of themselves and all others similarly situated in the Township of North Bergen, Hudson County, New Jersey. It is alleged that each of plaintiffs is a residential home owner in the Township of North Bergen and that local tax assessments upon their properties have been discriminatory, arbitrary, capricious and unlawful. They seek injunctive and other related relief which would bar the defendants from continuance of prevailing methods of assessment and from levy and collection of taxes assessed against individual properties of each of plaintiffs and of all other residential home owners who are part of the class which plaintiffs allege they represent. Subject matter jurisdiction is alleged to exist by virtue of 28 U.S.C. § 1331(a) (federal question) and 28 U.S. C. § 1343(3) (civil rights.) See also 42 U.S.C. § 1983.

The gist of plaintiffs' grievances in terms of alleged federal jurisdiction is that they are being deprived of property without due process of law contrary to the Fourteenth Amendment and in violation of the New Jersey State Constitution and further that the assessments and enforcement thereof deprive them of equal protection under the laws because of the discriminatory nature thereof. The detailed relief which plaintiffs seek is set forth in the Complaint as follows:

(a) That the defendants be enjoined from levying or collecting additional taxes from property owned by the plaintiffs and the class which they represent, until such time as new assessments are made and approved by this Court as correcting the injustices complained of herein.
(b) That the defendants, Angelo J. Sarubbi, Joseph J. Jialdini, Charles J. Steinel, Charles J. Weaver, George E. Burger and Robert White be directed to take all steps necessary to review all assessments of all property in the Township of North Bergen, and to readjust such assessments so as to remedy the injustices complained of herein.
(c) That defendants, Joseph Rubinstein, Realty Appraisal Co., Louis E. Della Torre, Edward D. Grosso, and Robert White account for and pay over to the Treasury of the Township of North Bergen, all funds received for assessment services.
(d) That the defendants be directed to refund to the plaintiffs and the class which they represent all real estate taxes paid by each of them in excess of their proper assessment as determined by the new tax assessments demanded herein.
(e) That defendants be required to pay to plaintiffs the cost of this action, including their attorneys' fees.
(f) That plaintiffs have such other and further relief as is just and proper.

There is a threshold question of subject matter jurisdiction. The federal statutory provisions above cited provide:

(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. 28 U. S.C. § 1331.
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * * *
(3) To redress the deprivation under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. * * * 28 U.S.C. § 1343.

42 U.S.C. § 1983 must also be considered. It provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

It is clear that the requisite amount in controversy for subject matter jurisdiction to be conferred by 28 U.S.C. § 1331(a) is not present. The complaint fails to allege any jurisdictional amount as to each individual property owner. It seems equally clear, considering the number of plaintiffs, that the aggregate claims are likely to exceed the jurisdictional amount of $10,000. This presents the question of whether these claims can be aggregated to meet the jurisdictional requirement. Despite the fact that this suit is brought as a class action, that circumstance does not, in and of itself, mandate aggregation of individual claims to satisfy the jurisdictional requirement. Although Rule 23 F.R.C.P. has been amended to eliminate the distinctions between true, hybrid, and spurious class actions, the Court must still look to the type of jural right that is being asserted. Aggregation is proper only if there is a joint or common interest or title in the subject matter of the suit; separate, independent, and distinct claims cannot be aggregated. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). See also the earlier Supreme Court case of Russell v. Stansell, 105 U.S. 303, 26 L.Ed. 989 (1881), where a group of land owners sought to enjoin the assessment of a tax as illegal and unjust but where no single plaintiff among the parties could have met the jurisdictional amount and there was no joint responsibility resting on them as a body. The Supreme Court held that the interest of each land owner was separate, thus preventing the plaintiffs from aggregating the interests of the class in order to meet the jurisdictional amount. Of course, being an 1881 decision, this left open the effect of Rule 23 which became effective on July 1, 1966. But any doubt arising as to the application of earlier case law to the aggregation of claims for the purpose of satisfying the jurisdictional amount in class actions has been dispelled by Snyder, supra, (1969) where the Supreme Court stated:

We have consistently interpreted the jurisdictional statute passed by Congress as not conferring jurisdiction where the required amount in controversy can be reached only by aggregating separate and distinct claims. The interpretation of that statute cannot be changed by a change in the Rules. Id., 394 U.S. at 338, 89 S.Ct. at 1057.
* * * * * *
Congress has thus consistently amended the amount-in-controversy section and re-enacted the "matter-in-controversy" language without change of its jurisdictional effect against a background of judicial interpretation that has consistently interpreted that congressionally enacted phrase as not encompassing the aggregation of separate and distinct claims. Id. at 339, 89 S.Ct. at 1058.

See also Fuller v. Volk, 351 F.2d 323 at 327, 328 (3rd Cir. 1965).

Plaintiffs in the present action seek a complete review of all assessments alleging that the re-evaluation of their properties as conducted was discriminatory. The individual interests they seek to protect are liability for municipal property taxes alleged to have been improperly assessed. Such interests are separate and distinct as to each property owner and cannot be aggregated in an alleged class action to satisfy the requisite jurisdictional amount. It is obvious that each residential property must be assessed as a separate single entity and apart from any other residential property. The gravamen of the alleged grievances is over-assessment which, it seems, would vary in amount as to each individual property owner. There is joint or common interest or title of all plaintiffs in the subject matter of the suit; each has a separate and distinct claim of alleged over-assessment which, as indicated above, would necessarily vary according to the type and value of the residential property, and the comparison of residential assessment with true evaluation and assessment of commercial property.

It may well be that by forecast of accumulated amounts of tax resulting from excessive and unlawful assessments over a period of years, the requisite jurisdictional amount could be envisioned, but that method of calculating the amount in controversy to determine jurisdiction may not be used. See Schlosser v. Welsh, 5 F.Supp. 993, 996 (D.C.S. D.Cen.Div.1934).

It does appear from the allegations of the Eleventh Count of the complaint that plaintiffs are challenging 1968 assessments. This is corroborated by affidavits which were filed. Hence, even if jurisdiction could be considered in the light of accumulation of anticipated future monetary loss resulting from improper assessment of taxes, such an approach would be entirely untenable because it would rest upon the assumption that alleged wrongful acts done during 1968 would be perpetuated.

42 U.S.C. § 1983 does not require a jurisdictional amount. Plaintiffs allege a denial of equal protection of the laws and a denial of due process. Accordingly, upon its face, the cause of action could be said to arise under the constitution...

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  • Kimmey v. HA Berkheimer, Inc.
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    • U.S. District Court — Eastern District of Pennsylvania
    • May 20, 1974
    ...contexts § 1343 was inapplicable and not determinative. See, e. g., Gray v. Morgan, supra, 371 F.2d at 175; Jones v. Township of North Bergen, 331 F.Supp. 1281, 1285 (D.N.J.1971); Bussie v. Long, 254 F.Supp. 797, 801 (E.D.La.1966), aff'd, 383 F.2d 766 (5th Cir. 1967), and Abernathy v. Carpe......
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    ...Gray v. Morgan, 371 F.2d 172 (7th Cir.1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 596 (1967); Jones v. Township, 331 F. Supp. 1281 (D.C.N.J.1971); Hornbeak v. Hamm, 283 F.Supp. 549 (M.D.Ala.1968), aff'd per curiam, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968); Abernathy v......
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    ...405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (Feb. 22, 1972); Bryant v. Carleson, 444 F.2d 353 (9 Cir. 1971); Jones v. Township of North Bergen, 331 F.Supp. 1281 (D.N.J.1971); Freeman v. Engelman, Civil No. 84-70 (D.N.J. Sept. 16, 1971); Linnane v. Betit, 331 F.Supp. 868 (D.Vt.1971). Given th......
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