Rodsan v. Bor. of Tenafly
| Decision Date | 30 June 2011 |
| Docket Number | Civil Action No. 10-1923 (MAS) |
| Parties | PETER RODSAN, et al., Plaintiffs, v. BOROUGH OF TENAFLY, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court by way of Defendants Borough of Tenafly (the "Borough") and Frank J. Mottola, Jr.'s ("Mottola") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) ("Rule 56(b)"). (Docket Entry Number ( ) 26 ("Borough's Moving Br.").) The Board of Adjustment of the Borough of Tenafly (the "Board") and Benny Lorenzo ("Lorenzo") (the Borough, Mottola, Board and Lorenzo, hereinafter, collectively referred to as "Defendants") similarly filed a motion for summary judgment. (Doc. No. 25 ("Bd.'s Moving Br.").) Plaintiffs Peter Rodsan, Marta Gena Rodsan and Jacob Rodsan ("Jacob") (collectively "Plaintiffs" or the "Rodsans") oppose both motions for summary judgment ( ); Doc. No. 33 ("Pls.' 2d Opp'n Br.")), while simultaneously filing a cross-motion for leave to amend the Complaint. (Doc. No. 34 ( ).) The Board and Lorenzo oppose Plaintiffs' cross-motion. (Doc. No. 38 ("Bd.'s Opp'n Br.").)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court shall decide the motion on the papers. As such, Plaintiffs' request for oral argument is denied. For the reasons set forth below, and for other good cause shown, Defendants' motions for summary judgment are GRANTED. Plaintiffs' cross-motion for leave to amend the Complaint is DENIED.
Plaintiffs reside at 59 East Clinton Avenue in Tenafly, New Jersey, which is also known as Lot 17, Block 1709 on the Borough's tax map. Jacob Rodsan is physically disabled and, as such, the Rodsans' procured several variances that were approved by the Board, which permitted them to construct an addition and elevator to their house in order to accommodate Jacob's disability. (Id. at 2, ¶¶ 4-5; Borough's Moving Br. 1; Pls.' Opp'n Br. 1.) Mottola, the Borough's Zoning Official, however, denied the Rodsans' request to use their detached garage as a pool cabana, asserting that it was an accessory use that violated the Borough's Code. (Compl. 2, ¶¶ 6-9; Borough's Moving Br. 1; Pls.' Opp'n Br. 1.) Plaintiffs appealed Mottola's decision, while simultaneously filing for a variance, which the Board denied after conducting several hearings. (Compl. 4, ¶¶ 2, 7-8.)
Plaintiffs subsequently filed a complaint in the Superior Court of New Jersey on December 10, 2008 against all Defendants except Lorenzo, the Board's Chairman, alleging that the Board's denial of Plaintiffs' request for a zoning variance was arbitrary and capricious, and that Defendants had engaged in discriminatory behavior towards Plaintiffs in violation of state and federal law. (Borough's Moving Br. 2, 4.) Specifically, the state Complaint included the following allegations:
The Borough's and Mottola's answer and affirmative defenses to the state complaint expressly deny the aforementioned allegations and set forth the following affirmative defenses: (1) Plaintiffs' failure to state a cause of action upon which relief may be granted; (2) Plaintiffs' failure to comply with the New Jersey Tort Claims Act notice requirements; and (3) immunity pursuant to New Jersey law. Notably, Plaintiffs' state complaint demands judgment declaring, in part, that the denial of Plaintiffs' variance application and the conduct of the Board, Borough and Mottola be declared "arbitrary, capricious and unreasonable, in violation of State Law and Federal Law and the State's and Federal Constitutions and should be set aside."
Significantly, counsel for Plaintiffs signed and dated a Stipulation of Dismissal of the Borough and Mottola without prejudice, which was dated February 27, 2009, and sent to the aforementioned parties on March 3, 2009. The Stipulation of Dismissal was never signed by Defendants or entered by the lower court. (See id.) A case management conference was subsequently held on April 28, 2009, resulting in entry of a case management order, which includes Plaintiffs' allegations concerning violations of state and federal laws and the New Jersey and United States Constitutions in the "Statement of Action" section. (McClure Cert. Ex. C ("Case Management Order") ¶ 2;Piekarsky Cert. ¶ 4.) Counsel for the Borough and Mottola did not appear at the conference. (Piekarsky Cert. ¶ 4.) Also, the Borough and Mottola did not submit a trial brief in preparation for the trial proceedings. (Id. at ¶ 5.)
On September 11, 2009, a one-day bench trial was held, and, while the Borough and Mottola were dismissed, judgment on the claims filed against the Board was reserved. (Borough's Moving Br. 2, 5; Ritvo Cert. Ex. B ("N.J. Super. Opinion") 2, Ex. C ("Order for Judgment") 1.) After a full trial, on October 27, 2009, the Superior Court entered an Order for Judgment, confirming that all claims against the Borough and Mottola were dismissed at the time of the hearing and dismissing all claims asserted against the Board with prejudice. (Borough's Moving Br. 2; Order for Judgment 1-2.) Plaintiffs appealed the decision to the New Jersey Appellate Division, which was denied on July 12, 2010. (Borough's Moving Br. 2-3; Ritvo Cert. Ex. F. ("N.J. App. Div. Opinion").) In describing the underlying action, the Appellate Division noted that the lower court "dismissed plaintiff's complaint with prejudice and without costs." (N.J. App. Div. Opinion 7.) Similarly, on October 7, 2010, Plaintiffs' petition for certification to the Supreme Court of New Jersey was denied. (Borough's Moving Br. 3; Ritvo Cert. Ex. G ("Order on Pet. for Cert.").)
After the New Jersey Supreme Court denied certification, on April 15, 2010, Plaintiffs filed a Complaint in this Court, which alleges the following: (1) constructive seizure of Plaintiffs' property without compensation in violation of 42 U.S.C. § 1983; (2) violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution; (3) violation of the due process clause of the Fourteenth Amendment of the United States Constitution; (4) unlawful discrimination amounting to conspiracy to interfere with civil rights and equal protection in violation of 42 U.S.C. § 1985; (5) neglecting to prevent violations of 42 U.S.C. § 1983; (6)seizure of property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution; (7) violation of procedural due process under the Constitution of the State of New Jersey; (8) unlawful discrimination in violation of N.J. Stat. Ann. §§ 10:5-12.5. (See generally Compl.) Additionally, Plaintiffs' proposed amended Complaint seeks to add a ninth cause of action for selective enforcement in violation of 42 U.S.C. § 1983. (See Doc. No. 34-2 ( ); Pls.' Opp'n Br. 2.)
Defendants seek the dismissal of Plaintiffs' Complaint in its entirety pursuant to Rule 12(b)(6). In the alternative, Defendants seek an award of summary judgment pursuant to Rule 56(b).
As a defense, a party may move to dismiss a complaint by asserting the non-moving party's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). However, when a responsive pleading is required, such as an answer to a complaint, any motion asserting such a defense must be made prior to filing an answer or other response. See id. Moreover, if, in deciding a Rule 12(b)(6) motion to dismiss, a court is inclined to review and consider evidence beyond the initial pleadings, the motion is converted into a summary judgment motion and the Federal Rule of Civil Procedure 56(c) legal standard applies.
Based on the aforementioned, the Court finds that Defendants' motion to dismiss pursuant to Rule 12(b)(6) is untimely and/or must be converted into a summary judgment motion.
Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if there is sufficient evidentiary support such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Disputes over irrelevant or unnecessary facts will not preclude a court from granting summary judgment.
The party moving for summary judgment has the initial burden of proving an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). If the non-moving party bears the burden of proof at trial, ...
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