Warren v. Fisher
| Decision Date | 20 December 2013 |
| Docket Number | Civil Action No. 10-5343 (JBS/KMW) |
| Parties | THREASTON WARREN, JR., et al., Plaintiffs, v. ALBERT FISHER, III, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Kerri E. Chewning, Esq.
Lloyd Freeman, Esq.
Joseph A. Martin, Esq.
John Patrick Kahn, Esq.
ARCHER & GREINER, PC
K. Warren & Continental Aggregate Corp. LLC
Michael V. Madden, Esq.
Michael P. Madden, Esq.
Patrick J. Madden, Esq.
MADDEN & MADDEN, PA
Counsel for Defendants Albert Fisher III, Robert Howell &
Joseph Hannagan, Jr.
Contents
A. Standard of review ..................................... 11
B. First Amendment claim .................................. 12
C. Substantive due process ................................ 17
D. Equal Protection pleading standard ..................... 20
2. Procedural due process ................................ 56
E. Official capacity claims ............................... 57
There are three motions before the Court in this matter: a motion for reconsideration of the Court's March 19, 2013 Opinion [Docket Item 101] and a motion to amend the Complaint [Docket Item 106], brought by Plaintiffs Threaston E. Warren, Jr., Marjorie K. Warren, and Continental Aggregate Corp., LLC, as well as a motion for attorneys' fees [Docket Item 100] brought by Defendants Albert W. Fisher, III, Robert Howell, and Joseph J. Hannagan, Jr.
This case arises out of a prolonged and contentious dispute between Plaintiffs and Defendants over the Plaintiffs' sand mining operation in Quinton, N.J. Plaintiffs allege that the Defendants conspired to interfere with their property rights and selectively enforced town ordinances in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, as part of a campaign of harassment.
Plaintiffs seek reconsideration of this Court's previous dismissal of their First Amendment and substantive due process claims in the Second Amended Complaint, as well as the dismissal without prejudice of Plaintiffs' equal protection claim. Plaintiffs argue that the Court made improper factual determinations and improperly applied a heightened pleadingstandard in deciding the previous motion. Because the Court applied the proper pleading standard and did not make determinations of contested material facts, the Court will deny Plaintiffs' motion for reconsideration.
Plaintiffs also seek leave to file a Third Amended Complaint, curing the deficiencies the Court identified in the Plaintiffs' equal protection claim. In the Second Amended Complaint, Plaintiffs failed to plead facts that suggest that Continental was treated differently from similarly situated mines. Because the Court finds that Plaintiffs now have pleaded facts sufficient to plausibly suggest the existence of other similarly situated mines, and because the Court finds Defendants are not entitled to qualified immunity on the equal protection and selective enforcement claims, the Court will grant the motion to amend in part. However, the Third Amended Complaint fails to state an actual deprivation of a constitutionally protected property right, and therefore Plaintiffs fail to state a claim for conspiracy under 42 U.S.C. § 1983. Accordingly, the Court will deny the motion to amend in part, with respect to the proposed § 1983 conspiracy claim.
Finally, Defendants move for this Court to award discretionary attorneys' fees pursuant to 42 U.S.C. § 1988(b).Because the Court does not find Plaintiffs' claims to be frivolous, the Court will decline to award fees to Defendants in this case.
Plaintiffs Threaston "Ed" Warren and Marjorie Warren own approximately 170 acres of land in Quinton, New Jersey, and hold a soil removal permit for the property.1 (TAC ¶¶ 14, 16.) The Warrens lease portions of the property to Plaintiff Continental, which conducts a sand mining operation using the Warrens' soil removal permit. (Id. ¶¶ 15-18.)
In January 2008, the town planning board -- of which Defendants Fisher and Howell were members -- denied Plaintiffs' application to expand their existing soil removal activities on the property and to install screening and washing equipment, known as a "wash plant." (Id. ¶¶ 11, 126, 132-33.) Plaintiffs allege that this decision was the product of an agreement byDefendants to run Plaintiff Continental out of business or otherwise harass Plaintiffs and interfere with their property rights under the soil permit. Plaintiffs challenged the planning board's decision in New Jersey Superior Court, and Judge Anne McDonnell ruled that the planning board incorrectly denied the application on the grounds that Continental lacked a mining license for certain lots. (Id. ¶¶ 132, 141, 147-48.) Judge McDonnell also determined that the record before the planning board did not support the finding that a wash plant was a "primary use" rather than an "accessory use," as the Planning Board had concluded. (Id. ¶ 149.)
Both before and after the Superior Court ruling, Plaintiffs allege that they were subjected to threats, verbal abuse and other unfair treatment by Defendants. (Id. ¶¶ 138, 142, 155, 157-58.) Among Plaintiffs' chief complaints: (1) Defendant Fisher, as Mayor of Quinton, filled vacancies on the planning board with individuals who were unsympathetic or hostile to Plaintiffs (id. ¶¶ 162-68); (2) Defendants dubbed themselves "the Cool Run Gang," discussed Plaintiffs' mining operations and plotted to harass Plaintiffs (id. ¶ 49); (3) Defendant Gibson intentionally lodged complaints and false accusations against Plaintiffs, forming the basis for official town responses (id.¶¶ 58-63); (4) Fisher appointed Defendant Hannagan to the position of "Official Township Pit Inspector," a post that Plaintiffs contend never existed before (id. ¶¶ 76-90); (5) Defendants subjected Plaintiffs to approximately 40 site inspections in less than three years, when other mines were inspected biannually, costing Continental tens of thousands of dollars (id. ¶ 104-109); (6) Defendants attempted, but failed, to amend a zoning ordinance to delete soil removal as a conditionally permitted use (id. ¶ 92); and (7) Hannagan trespassed on a part of Plaintiffs' land that was not permitted for mining to take a soil sample without permission (id. ¶¶ 169173).
Plaintiffs initiated this action in the Superior Court of New Jersey, Salem County, and Defendants removed the action, pursuant to 28 U.S.C. § 1446, because the Complaint alleged violations of federal law.2 [Docket Item 1.]
After Plaintiffs amended the Complaint twice, the Township Defendants brought a motion for judgment on the pleadings and a motion for partial summary judgment. [Docket Item 85.] The Court held that Plaintiffs failed to state a "class of one" claim under the Equal Protection Clause of the Fourteenth Amendment because Plaintiffs failed to plead facts to permit a reasonable inference that similarly situated mines existed and were treated differently. Warren, 2013 WL 1164492, at *7-*8. "Aside from the fact that other mines exist in the town, the Second Amended Complaint provides no factual detail to suggest that the mines are similarly situated in any aspect, let alone all relevant aspects, to Continental." Id. at *8. The Court granted Defendants' motion for judgment on the pleadings withoutprejudice, permitting Plaintiffs to file a motion to amend their equal protection claim. Id. at *9.
The Court dismissed Plaintiffs' substantive due process and First Amendment claims with prejudice. On the substantive due process claim, the Court ruled that Defendants' conduct pleaded in the Second Amended Complaint was "not so egregious that it shocks the conscience." Id. at *11. The Court stated that the conduct alleged "is not materially different" from that in Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d. Cir. 2004), where zoning officials applied subdivision requirements to the plaintiffs' property but not others, "pursued unannounced and unnecessary" inspection and enforcement actions," delayed permits and approvals, improperly increased tax assessments and "maligned and muzzled" the plaintiffs. Id. at *10-*11. In Eichenlaub, the Third Circuit dismissed the substantive due process claim because the court found the conduct did not shock the conscience but rather exemplified "the kind of disagreement that is frequent in planning disputes." Id. at *10 (quoting Eichenlaub, 385 F.3d at 286). Likewise, in this case, the Court explained that Plaintiffs made no allegations of corruption, self-dealing, ethnic bias, virtual taking or interference with otherwise constitutionally protected activity on the property.Id. at *10-*11. Therefore, the substantive due process claim could not stand. Id. at
On the First Amendment claim, in which Plaintiffs alleged they were retaliated...
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